Judge largely upholds California ban on private prisons in tentative ruling

A federal judge in San Diego issued a tentative ruling Thursday that largely upholds California’s ban on private prison contracts.

GEO Group, a Florida-based private prison corporation, filed the lawsuit in U.S. District Court in San Diego days before Assembly Bill 32 took effect on Jan. 1. The law prohibits new for-profit detention contracts and changes to current contracts, and phases out existing facilities entirely by 2028.

The lawsuit challenges Gov. Gavin Newsom and Atty. Gen. Xavier Becerra. It alleges that AB 32 is a “transparent attempt by the state to shut down the federal government’s detention efforts within California’s borders” and asks the court to forbid the state from enforcing the statute. A month after the lawsuit was filed, the Trump administration followed with its own lawsuit making claims similar to those of GEO Group.

U.S. District Judge Janis Sammartino consolidated the two lawsuits during a virtual hearing Thursday attended by more than 100 people. She called the lawsuits “fascinating and complex.”

Sammartino suggested she was likely to dismiss most of the case against California, as well as a request to temporarily suspend enforcement of the law while the case continues in court.

She said she was inclined to conclude that “AB 32 does not unconstitutionally discriminate against the federal government or its contractors.”

Sammartino referenced the case challenging Senate Bill 54, California’s “sanctuary” law, and similarly recognized that state leaders have authority to ensure the health and welfare of inmates and detainees within their borders. But she suggested she would uphold the case as applied to facilities used by the U.S Marshals Service, which holds federal inmates charged with criminal immigration offenses, such as entering the country illegally or reentering after a deportation.

Immigrant rights advocates said Sammartino’s tentative ruling was just the beginning of what they anticipate to be a long court process including appeals.

According to the lawsuit, AB 32 affects 10 privately managed prison and immigrant detention facilities in California with nearly 11,000 total beds — the vast majority of federal detention capacity in the state. GEO Group manages seven of those facilities, including the Adelanto and Mesa Verde immigration facilities.

Pro-immigration activists have long alleged poor conditions, including substandard medical care and documented safety violations, inside facilities run by GEO and other private prison companies. They called the lawsuit an “illicit scheme by ICE and prison corporations to evade accountability.”

Jordan Wells, an attorney with the American Civil Liberties Union of Southern California, called the ruling remarkable.

“The ruling is as much about ICE’s private prison enterprise across the country as it is about the ban on it here in California,” he said. “Because if California can do it, then other states can as well.”

GEO officials have said that while they play no role in immigration laws and take no positions on immigration policies, it is unconstitutional for a state to regulate the actions of the federal government and its contractors.

GEO Group attorney Charles Cooper — who has represented former U.S. Attorney General Jeff Sessions and former national security advisor John Bolton — argued that because private contractors operate on behalf of the federal government, “This prohibition, even though it focuses on the person operating the facility, is nonetheless a prohibition on the entire government.”

Michael Kirk, who also represented GEO, said Congress grants the federal government the discretion to choose the “most efficient and best” option for American taxpayers.

“The history is critically important here,” he said. “Going back to the mid-1980s, it’s been well known ... to everyone that ICE has been using private facilities to carry out its detention obligation.”

But Deputy Atty. Gen. Gabrielle Boutin argued that Congress did not grant the federal government blanket authority to detain people without guidance. She said AB 32 was enacted to protect the health and welfare of inmates and detainees in California.

“It was made after widespread findings that private detention facilities have safety problems,” she said.

GEO’s lawsuit was filed in December, days after federal officials signed contracts totaling nearly $6.5 billion with GEO and the two other companies that run California’s four private immigrant detention centers. The contracts have terms of 15 years, inclusive of two five-year extensions, ending in 2034.

If AB 32 forces GEO to close its facilities in California, the company said, it would lose an average of $250 million a year in revenue over the next 15 years, plus the $300 million invested in acquiring and setting up those buildings.

If no privately operated detention facilities were permitted in California, there would in effect be one facility in the state that ICE could use to hold detainees: Yuba County Jail, which has 220 beds. The agency has argued that the closures would force detainees to be transferred out of state, away from family and lawyers.