Immigrant and human rights advocates have suffered a disappointing setback in California, where an 11-judge panel on Monday ruled as unconstitutional a historic state law banning private, for-profit prisons. This includes detention facilities that imprison immigrants.
The Los Angeles Times reports that the U.S. 9th Circuit Court of Appeals panel ruled that AB 32 “specifically violated the Constitution’s ‘Supremacy Clause,’ which precludes states from interfering with the enforcement of federal laws.” Judge Jacqueline Nguyen, an appointee of former President Barack Obama, wrote, “California cannot exert this level of control.”
The ruling marks a victory for private prison profiteer GEO Group, which initially sued in early 2020, and the Biden administration, which has taken up the previous administration’s position opposing the law in court.
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“The ruling will allow privately-operated detention centers, which have a long track record of serious abuse, to remain open,” said the Dignity Not Detention coalition in a statement. “The Biden administration’s decision to pursue the Trump-era lawsuit sparked anger from advocates, who had urged 25 Members of Congress to sign this letter expressing ‘serious concern.’” The Los Angeles Times reported that state officials who had authored and defended the law in court were “deeply disappointed.”
“Assembly Bill 32 was enacted to protect the health and welfare of Californians and recognized the federal government’s own documented concerns with for-profit, private prisons, and detention facilities,” state attorney general Rob Bonta said in the report. He authored AB 32 while still a member of the state legislature. “At the California Department of Justice, we’ll continue to do our part to stand up for the dignities and rights of everyone in our state.”
“Gov. Gavin Newsom signed the bill into law in October 2019, and his office has defended it since,” the report continued. “On Monday, it said that ‘for-profit, private prisons contribute to over-incarceration and do not reflect California values,’ and that it was reviewing the court’s decision ‘to evaluate next steps.’”
The conservatives from a three-judge panel of the 9th Circuit Court of Appeals had last October ruled against the law, after GEO Group and the federal government sought an appeal following an initial loss in an October 2020 ruling. Following last year’s decision, Bonta then sought a rehearing before an 11-judge panel, which California was granted. The three-judge panel’s Oct. 2021 ruling was also thrown out at the time.
“While the Ninth Circuit agreed to reconsider the case through an 11-judge en banc panel, that panel once again wrongly held that GEO was likely to succeed in their effort to enjoin key parts of AB 32,” the Dignity Not Detention coalition continued. “The en banc panel remanded the case back to the district court to consider whether GEO group has met the other requirements to enjoin AB 32.” The Los Angeles Times reported that “[i]n a dissent joined by two other judges on the panel, Chief Judge Mary H. Murguia, also an Obama appointee, disagreed, arguing AB 32 was valid because it did not directly regulate or discriminate against the federal government.”
While President Biden, in the first days of his administration, issued an executive order phasing out the federal government’s use of private prisons, this didn’t apply to immigration detention. To now fight alongside private prisons in attempting to preserve for-profit immigration detention in the state of California runs contrary to the pro-immigrant and pro-racial justice values expressed by his campaign.
“The fact is, to call it torture is an understatement. GEO Group has profited hundreds of millions of dollars and the company is worth billions globally,” said Jose Topete, a migrant formerly detained at the for-profit Adelanto Detention Facility. “They are morally corrupt and take advantage of an immigration system that still heavily relies on detaining and criminalizing immigrants.”
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