Lawyers for a private prison corporation exchanged arguments with the state of California on Tuesday in the 9th Circuit Court of Appeals in Pasadena over a lawsuit challenging state legislation banning private for-profit prisons and immigration detention centers.
Although no decision has been made, the outcome of the case could affect the future of the private prison industry in several states beyond California.
When California lawmakers passed Assembly Bill 32 in 2019, they saw their state as a leader in the battle to rid the country of private detention and hoped others would follow.
The California ban affects private facilities contracted by U.S. Immigration and Customs Enforcement to detain immigrants. About 25,000 people are currently detained in the United States. And although private prisons make up less than 10% of the total US prison population, they hold nearly 80% of those in immigration detention.
The ban on private prisons would force the closure of seven private detention facilities and leave California with only one county jail that holds immigrants for deportation. ICE argued the closures would force detainees to be moved out of state, away from family and lawyers, while supporters of the law said ICE could instead use alternatives to the detention, such as ankle monitors.
Other states, including Washington and New Jersey, have also banned private immigration detention centers.
GEO Group, a Florida-based private prison company, filed his lawsuit a few days before AB 32 went into effect on January 1, 2020, alleging that the bill’s purpose is to “undermine and eliminate congressionally funded and approved enforcement of federal criminal and immigration law.”
Soon after, the Trump administration filed its own lawsuit with similar claims against the law, which bans new for-profit detention contracts and eliminates current facilities entirely by 2028.
In October 2020, a U.S. District Judge in San Diego largely confirmed the prohibition of private prisons, saying that the State has the right to regulate the conditions of containment of any installation on its territory. But then a panel of 9th Circuit judges voted 2 to 1 that California should exempt federal immigration detention centers from its ban on for-profit prisons.
On Tuesday, Michael Kirk, on behalf of GEO, and Mark Stern, representing the federal government, argued before the justices that Congress has the authority to use private contractors if necessary.
“California cannot tell the United States how and who can run their detention centers,” Stern said.
But the court asked Kirk why using private prisons is the only way the federal government could achieve its goal of apprehending and detaining immigrants who come to the United States illegally.
This federal focus has shifted thanks to changes to the Oval Office. The Trump administration has expanded the use of immigration detention. Then-candidate Joe Biden made a campaign promise to end private prisons. But the Biden administration’s Justice Department chose to take up the challenge to the California law initiated under Trump.
“The question is whether the government can still achieve the federal goal,” said Trump-appointed Judge Ryan D. Nelson. “The federal government has a multitude of burdens. It is clear that he achieved and can still achieve the goal.
He went on to say that ICE – which operates only a handful of facilities across the country – could potentially buy those facilities, in which case they would no longer fall under AB32’s jurisdiction and could be legally operated.
Michael Kaufman, a senior attorney for the American Civil Liberties Union of Southern California, said in an interview that he remains hopeful about the implications for other states if the 9th Circuit rules in favor of California.
“The result here may indicate the discretion that states have regarding regulations that may affect federal immigration detention centers,” Kaufman said. “So this is obviously a case of great significance that can have great impacts not just in California, but across the rest of the country.”
Some legal analysts think it’s possible that regardless of the 9th Circuit’s decision, this case will end up on the desk of the United States Supreme Court.
“I think it’s a definite possibility,” said Hamid Yazdan-Panah, Immigrant Defense Advocate’s advocacy director. “The reality is that you can almost assume how the Supreme Court would decide this case because of political affiliations as opposed to very serious legal discussion or analysis.”
Times editor Andrea Castillo contributed to this report.