Ending private prisons in California will harm prisoners and detained immigrants

Gov. Gavin Newsom made an inaugural promise to “end the outrage of private prisons,” and now is deciding whether to sign legislation that purports to follow through on that pledge.

But that legislation, Assembly Bill 32 by Assemblyman Rob Bonta, an Alameda Democrat, will not alter conditions of confinement, and it will increase threats to public safety, hamper future efforts to address future increases in the criminal population, and hurt vulnerable populations that many in California want to help.   

To avoid serious unintended consequences, the governor should veto Assembly 32.

Private prisons came about because federal and state governments were unable or unwilling to fund new prison construction to keep pace with increasing inmate populations. 

Based on my 38 years of federal law enforcement experience dealing with private detention facilities, I believe the private sector is ready, willing and able to provide whatever services are required if contracts are well written and effectively monitored. In many circumstances, private facilities can be more effective than government owned and operated ones.   

It should be noted, the governor doesn’t need statutory authority to eliminate private detention facilities.  His California Department of Corrections and Rehabilitation awards the contracts for private prisons, and can terminate them all.

He has not done that. That’s wise. The Department of Corrections and Rehabilitation’s use of well-run and monitored private facilities is one way to meet federal court-ordered reductions in prison population. Without private prisons, the alternative would be to reduce arrests, or release convicted criminals.

AB 32 would prohibit the federal government from using private facilities to house immigration detainees and defendants on trial in federal court. The legality of this prohibition is dubious. But that question aside, other serious consequences should be considered.

The legislation will not result in a reduction in federal immigration enforcement in California or the release of currently detained immigrants, as some immigrant advocates would hope. Enforcement actions will continue, with those arrested, along with those currently detained, being transported to out of state facilities as far away as Texas, Louisiana, and Georgia as ICE has done before to deal with detention shortages. Many of these facilities will be privately owned and operated.

Ironically, AB 32 would result in “family separations.” Detained immigrants will more likely no longer be housed close to family members making visitation a hardship. Legal counsel could be more difficult to obtain in other states where immigration attorneys are not as plentiful. Support of non-profit organizations including legal aid will be scarcer outside California.

There also will be impacts on U.S. Marshal Services, prisoners and the federal courts. Marshals must transport prisoners to all court proceedings, often on a daily basis, for trials that can last months.

These prisoners must also be readily available for meetings with families, prosecutors, defense attorneys, and investigative agents. In San Diego, the U.S. Marshal’s Services contracts for approximately 1000 beds.

If people are detained in nearby states, they will be unable to appear for court proceedings in California, and their families and attorneys will not have access to them. All this will certainly lead to litigation.

If private prisons are not meeting the needs of the state, steps should be taken to address those needs. But a ban on much needed private prisons is not the answer, at least not if Gov. Newsom’s goal is to improve the conditions of state inmates, and the treatment of immigrants in custody.

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Gary E. Mead is a former associate director of the U.S. Marshal Service and a former executive associate director of enforcement and removal operations for U.S. Immigration and Customs Enforcement, fge02856@gmail.com. He wrote this commentary for CalMatters.