SAN DIEGO (CN) — Calling a pair of lawsuits brought by private prison operator GEO Group and the federal government challenging the constitutionality of California’s private prison ban “fascinating and complex,” a federal judge Thursday suggested she was unlikely to rule the ban discriminates against the federal government or its contractors.
U.S. District Judge Janis Sammartino held a marathon 3-hour virtual court hearing Thursday attended by over 100 people anxious to know whether the judge will uphold California’s historic legislation, AB 32.
Signed by Governor Gavin Newsom last October, the law bars the renewal of detention facility contracts with private operators, including private immigration detention facilities operated by GEO Group and CoreCivic.
In a virtual press conference prior to Thursday’s court hearing, immigration advocates called AB 32 a “public health solution” necessary to prevent the spread of Covid-19 and other diseases in overcrowded private prisons, a 2016 Justice Department report found failed to provide medical care to inmates.
Charles Joseph, an immigrant from Fiji who was detained at the Mesa Verde detention facility in Bakersfield, California and recently released, said in the 11 months he was detained he never saw a janitor come into his dorm. Detainees were offered to be paid $1 a day for cleaning, Joseph noted, another private prison practice being challenged in a separate class action lawsuit also being overseen by Sammartino.
The Justice Department argued in its lawsuit filed earlier this year AB 32 discriminates against the government because carve-outs written into the law apply only to state contracts. Likewise, GEO Group argued in an earlier lawsuit the law cannot supersede the federal government’s authority to carry out “detention responsibilities.”
Due to their overlapping goals, Sammartino — a George W. Bush nominee — consolidated the two cases Thursday.
At the outset of the court hearing, Sammartino read her tentative order indicating she was unlikely to find AB 32 unfairly discriminates against the federal government or its contractors, though she did note the law was likely preempted regarding privately run facilities for the U.S. Marshals Service.
Sammartino asked GEO Group attorney Charles Cooper of Cooper & Kirk whether the Contract Dispute Act governed the case, which Cooper denied, pointing out the case doesn’t concern a dispute between the federal government and its contractor but California’s interference in the execution of the contract.
Sammartino asked why a full copy of the contract between GEO Group and the federal government wasn’t provided to the court, as the contract likely has a provision regarding how contract disputes are to be handled.
Michael Kirk, also representing GEO Group, said they were trying to “minimize” the court’s exhibit volume but agreed to submit the contract in its entirety for Sammartino’s review.
When it came time for California to defend its law, Deputy Attorney General Gabrielle Boutin could not say what penalties the federal government or its contractors could face for violating California’s private prison ban, only suggesting civil enforcement would likely be utilized.
Boutin did agree the law does not apply to contractors who operate facilities that are federally owned but wouldn’t go as far as stipulating the law could not apply to Bureau of Prisons residential reentry facilities.
While Boutin couldn’t answer many of Sammartino’s pointed questions about the current status of private detention facilities and how the state is likely to enforce its law, she did address congressional intent in allowing private companies to contract with the federal government regarding detention services. Boutin said those allowable services were limited mainly to construction of facilities, not the running and operation of them.
“Did Congress intend for [Immigration and Customs Enforcement] and other agencies to use private contractors to detain individuals? When we talk about the options Congress gave the agencies, we have to look at the statute,” Boutin said.
“Using a private operator is not one of those options, that option is not there, there is not a situation here where there is a clear and manifest intent to provide that option,” she added.
But Cooper argued the “impact would not have mattered” regarding AB 32’s regulation of private contractors, rather than the federal government, because, “This prohibition, even though it focuses on the person operating the facility, is nonetheless focusing on the federal function, the government function.”
“The federal contractor stands in the same shoes as if the federal government was doing it,” Cooper added.
Kirk disputed “there’s simply no way that Congress did not intend to permit ICE to use private contractors,” noting last fiscal year over 13,000 detainees were held in privately run facilities.
“The clear conflict here is Congress said ICE is to decide whether private detention facilities are to be used and AB 32 takes that decision away from Congress,” Kirk added.
Justice Department attorney Stephen Ehrlich also argued against the California statute.
The matter was taken under submission and a written order will be issued.