BILL ANALYSIS                                                                                                                                                                                                    



                                                                    SB 1289


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          Date of Hearing:  June 28, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          SB  
          1289 (Lara) - As Amended May 31, 2016


                              As Proposed to be Amended

          SENATE VOTE:  24-14


          SUBJECT:  LAW ENFORCEMENT:  IMMIGRATION


          KEY ISSUES:  


          1)BECAUSE OF THE LACK OF PUBLIC OVERSIGHT AND ACCOUNTABILITY IN  
            PRIVATE FACILitIES, SHOULD local governments and law  
            enforcement agencies be prohibITed from contracting with  
            companies that operate PRIVATE facilIties to detain immigrants  
            in civil immigration proceedings for profit?


          2)IN LIGHT OF REPORTED ABUSE OF IMMIGRANTS DETAINED IN SUCH  
            FACILITIES, should immigration detention facilities in  
            california that are operated by for-profit companies be  
            required to uphold national minimum standards for the humane  
            treatment of detainees, enforceable by a private right of  
            action? 










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                                      SYNOPSIS


          Federal immigration authorities, the U.S. Immigration & Customs  
          Enforcement (ICE) or the U.S. Marshals, enter into  
          Intergovernmental Service Agreements (IGSAs) with local  
          governments or local law enforcement whereby the local entity  
          agrees to detain immigrants on behalf of the federal government.  
           Local governments or local law enforcement can then choose to  
          detain the immigrants in their own publicly-run facilities (i.e.  
          county jails) or to subcontract with for-profit operators of  
          private detention facilities instead.  The author contends that  
          because these private detention facilities operate with little  
          to no public oversight and are not subject to public disclosure  
          laws, such as the Freedom of Information Act, they are  
          essentially accountable only to their shareholders and not the  
          people of the state of California.  As a result, abuse and  
          inhumane treatment of detainees is reportedly tolerated and  
          persists in these facilities because the public has no  
          dependable mechanism for getting information about what is going  
          on behind closed doors.  To corroborate these claims, the  
          Committee has received a number of reports and letters in  
          support of this bill from immigrant advocates, watchdog  
          organizations, and human rights advocates describing  
          investigations that have uncovered widespread incidents of abuse  
          and mistreatment of immigrants who are held in private detention  
          facilities in California.  


          This bill, sponsored by Community Initiatives for Visiting  
          Immigrants in Confinement (CIVIC), seeks to prohibit local  
          governments and law enforcement from contracting with private  
          companies that operate for-profit immigration detention  
          facilities, and requires these facilities to uphold national  
          standards for humane treatment of detainees, enforceable by a  
          private right of action.  These national standards were  
          promulgated by ICE itself to govern conditions of confinement in  
          its detention facilitates established through contracts with  
          those facility operators, and are known as the Performance-Based  








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          National Detention Standards 2011 (aka "PBNDS 2011").  Among the  
          standards codified by this bill are provisions that prohibit  
          immigrant detainees from being deprived of access to an attorney  
          or other authorized legal representative; access to translation  
          or interpreters; medical care; freedom from harm or harassment;  
          and privacy.  The bill also creates a number of other  
          protections and rights for immigrant detainees that would be  
          equally enforceable under the bill.


          This bill is needed, proponents contend, to address the fact  
          that although the PBNDS 2011 standards may be agreed to under  
          contracts between ICE and facilities, the standards are  
          ultimately unenforceable because neither federal nor state law  
          requires adherence to them.  Accordingly, this bill would  
          require that immigrant detention facilities adhere to the PBNDS  
          2011 standards and ICE Directive 11065.1, and other rights  
          granted by this bill, and would, for the first time, provide a  
          private right of action to allow an immigrant detainee who has  
          been deprived of his or her rights to bring a civil action for  
          damages.  The Attorney General, district attorneys, and city  
          attorneys would also be empowered to enforce the bill on behalf  
          of the people.  The bill is opposed by the CA State Association  
          of Counties, the Sheriffs Association, and the City of Adelanto,  
          a town in San Bernardino County that has a contract with the  
          operator of one of the largest private detention facilities in  
          the state.  These opponents contend that the authority of  
          counties and sheriffs to contract with private detention  
          facilities should not be limited, and that there is already  
          sufficient oversight by accrediting agencies to make a private  
          right of action unnecessary.  Proposed amendments to the bill  
          are technical and simply reorganize the bill into a single  
          section of the Civil Code.


          SUMMARY:  Prohibits local governments and law enforcement from  
          contracting with companies that operate for-profit immigration  
          detention facilities, and requires these facilities to uphold  
          national standards for humane treatment of detainees,  








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          enforceable by a private right of action.  Specifically, this  
          bill:   


          1)Prohibits a city, county, city and county, or a local law  
            enforcement agency from entering into or renewing a contract,  
            or modifying a contract to extend the length of the contract,  
            with a private corporation, contractor, or vendor to detain  
            immigrants in civil immigration proceedings for profit.


          2)Provides that when an immigrant detention facility chooses to  
            enter into a contract to detain immigrants in civil  
            immigration proceedings, it shall detain immigrants only  
            pursuant to a contract that requires the entity contracting  
            with DHS or other federal agency to adhere to the standards  
            for detaining those individuals described in the 2011  
            Operations Manual Immigration and Customs Enforcement (ICE)  
            Performance-Based National Detention Standards as corrected  
            and clarified in February 2013 and ICE Directive 11065.1  
            (Review of the Use of Segregation for ICE Detainees).  


          3)Prohibits immigrant detention facilities, their agents, or  
            those acting on their behalf from depriving immigrant  
            detainees from: (a) access to an attorney or other authorized  
            legal representative; (b) access to translation or  
            interpreters; (c) medical care; (d) freedom from harm or  
            harassment; and (e) privacy.  Clarifies that medical care,  
            includes but is not limited to, HIV medication and  
            transition-related health care, and further prohibits the  
            denial of medical care on the basis that an immigrant is  
            likely to be released or deported.


          4)Requires immigrant detention facilities to have a Legal  
            Orientation Program, as specified, that includes an  
            orientation on immigration removal proceedings and forms of  
            relief, distribution of self-help materials, provision of  








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            private and individual consultations with unrepresented  
            detainees to discuss their cases, and referrals to pro bono  
            legal services.


          5)Requires immigrant detention facilities to do all of the  
            following when an immigrant detainee is transferred:  (a)  
            ensure that all medical records of the detainee are promptly  
            transferred to ICE at the time of transfer or promptly  
            provided to the facility to which the detainee is transferred;  
            (b) ensure that all detainees receive all medications needed  
            while in transit; (c) ensure that a detainee's treatment plan  
            is received by the medical personnel at the facility to which  
            the detainee is being transferred; and (d) ensure that there  
            is no delay, disruption, or denial of medical treatment, after  
            or before detainee transfer.


          6)Prohibits the involuntary placement of immigrant detainees in  
            segregated housing because of the detainee's actual or  
            perceived gender, gender identity, gender expression, or  
            sexual orientation.


          7)Clarifies that that an immigrant detention facility can  
            provide more rights than are required under the 2011  
            Operations Manual ICE Performance-Based National Detention  
            Standards as corrected and clarified in February 2013 or ICE  
            Directive 11065.1 (Review of the Use of Segregation for ICE  
            Detainees).  


          8)Authorizes the Attorney General, any district attorney, or  
            city attorney to bring a civil action for injunctive and other  
            appropriate equitable relief in the name of the people of the  
            State of California and seek a civil penalty of $25,000, as  
            specified, when an immigrant detention facility, or its agent  
            or person acting on its behalf deprives an immigrant detainee  
            of their rights created under this bill or rights under the  








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            2011 Operations Manual ICE Performance-Based National  
            Detention Standards as corrected and clarified in February  
            2013, or ICE Directive 11065.1 (Review of the Use of  
            Segregation for ICE Detainees).


          9)Requires that if a civil penalty is requested by the Attorney  
            General, a district attorney, or city attorney, the civil  
            penalty shall be assessed individually against each person who  
            is determined to have violated the legal rights of a detained  
            immigrant and awarded to each individual whose rights are  
            determined to be violated.


          10)Authorizes any individual who has been deprived of his or her  
            rights to bring a civil action for damages, including, but not  
            limited to, damages under Section 52 of the Civil Code,  
            injunctive and other appropriate equitable relief, when an  
            immigrant detention facility, or its agent or person acting on  
            its behalf deprives an immigrant detainee of their rights  
            created under this bill or rights under the 2011 Operations  
            Manual ICE Performance-Based National Detention Standards as  
            corrected and clarified in February 2013 or ICE Directive  
            11065.1 (Review of the Use of Segregation for ICE Detainees).


          11)Allows a court to award the petitioner or plaintiff  
            reasonable attorney's fees and costs in addition to any  
            damages, injunction, or other equitable relief.


          EXISTING STATE LAW:


          1)Permits the board of supervisors of any county to contract on  
            behalf of the sheriff of that county, and the legislative body  
            of any city may contract on behalf of the chief of police of  
            that city, to provide supplemental law enforcement services to  
            specified entities under certain conditions, including to  








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            private individuals or private entities to preserve the peace  
            at special events or occurrences that happen on an occasional  
            basis.  (Government Code 53069.8 (a).)


          2)Requires the Board of State and Community Corrections to  
            establish minimum standards for local correctional facilities,  
            which standards shall include, but not be limited to, the  
            following areas: health and sanitary conditions, fire and life  
            safety, security, rehabilitation programs, recreation,  
            treatment of persons confined in local correctional  
            facilities, and personnel training.  (Penal Code Section  
            6030.)


          3)Pursuant to the Unruh Civil Rights Act, provides that all  
            persons within the jurisdiction of California are free and  
            equal no matter their national origin, citizenship, or  
            immigration status and are entitled to full and equal  
            accommodations, facilities, and privileges in all business  
            establishments of every kind.  (Civil Code Section 51.)


          EXISTING FEDERAL LAW:


          1)Pursuant to the Immigration and Naturalization Act, protects  
            all asylum seekers by prohibiting the federal government from  
            returning to their home countries people who have fled  
            persecution on account of race, religion, nationality,  
            political opinion, or membership in a particular social group.  
             (8 U.S.C. Sec. 1101 (a)(42)(A).) 


          2)Pursuant to the Immigration and Naturalization Act, provides  
            that victims of certain crimes may obtain immigration relief  
            through a Victim of Crime Visa (U-Visa) and victims of human  
            trafficking may obtain immigration relief through a Victim of  
            Trafficking Visa (T-Visa).  (8 U.S.C. Sec. 1101 (a)(15)(U); 8  








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            U.S.C. Sec. 1101 (a)(15)(T).)


          3)Pursuant to case law, establishes that immigrant detainees  
            with mental disabilities who are facing deportation and who  
            are unable to adequately represent themselves are entitled to  
            qualified legal representatives provided by the federal  
            government for representation during all phases of their  
            immigration proceedings, including appeals and custody  
            hearings.  (Franco-Gonzalez v. Holder, CV 10-02211-DMG.)


          FISCAL EFFECT:  As currently in print this bill is keyed fiscal.


          COMMENTS:  This bill, sponsored by Community Initiatives for  
          Visiting Immigrants in Confinement (CIVIC), seeks to prohibit  
          local governments and law enforcement from contracting with  
          companies that operate for-profit immigration detention  
          facilities, and requires these facilities to uphold national  
          standards for humane treatment of detainees, enforceable by a  
          private right of action.  According to the author:


               ICE contracts with private companies to run detention  
               facilities to hold immigrants, including undocumented  
               people, asylum-seekers, long-time green card holders,  
               and others who are awaiting their immigration hearings.  
               There have been consistent reports of human rights  
               abuses in detention facilities, including physical and  
               sexual abuse, poor access to healthcare, little access  
               to legal counsel, and overuse of solitary confinement,  
               and even death.     


               SB 1289 will prohibit local governments from  
               contracting with private companies to detain immigrants  
               for profit. This bill will also require detention  
               facilities to meet the basic standards laid out by  








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               ICE's 2011 Performance-Based National Detention  
               Standards and authorize individuals to bring a civil  
               action against a facility in the event that their  
               rights are violated. SB 1289 will ensure that  
               immigrants' rights are protected and there is an  
               opportunity for them to seek redress when they have not  
               been upheld.


          Immigrant detention facilities in California.  Local governments  
          and local law enforcement entities are not required to detain  
          immigrants on behalf of federal immigration authorities.  The  
          ones in California that decide to detain immigrants do so by  
          choice.  Federal immigration authorities, either U.S.  
          Immigration & Customs Enforcement (ICE) or the U.S. Marshals,  
          enter into Intergovernmental Service Agreements (IGSAs) with  
          local governments or local law enforcement whereby the local  
          entity agrees to detain immigrants on behalf of the federal  
          government.  Local governments or local law enforcement can then  
          choose to detain the immigrants in their own facilities or  
          subcontract with for-profit detention facilities instead.  


          


          According to figures provided by CIVIC, 62% of all ICE  
          immigration detention beds in the U.S. are operated by  
          for-profit prison corporations, up from 49% in 2009.  They  
          contend that operators of these private detention facilities  
          make billions in profit each year from holding undocumented  
          persons, while the California county and city partners in these  
          intergovernmental service agreements experience little economic  
          gain.  There are currently four for-profit detention facilities  
          in California:












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            (1) ICE contracts with the City of Adelanto, who in turn  
            contracts with GEO Group to detain immigrants at the Adelanto  
            Detention Facility (Adelanto).


            (2) ICE contracts with the City of McFarland, who in turn  
            contracts with GEO Group to detain immigrants at the Mesa  
            Verde Detention Facility (Bakersfield).


            (3) ICE contract with the City of Holtville, who in turn  
            contracts with Management & Training Corp. (MTC) to detain  
            immigrants at the Imperial Regional Detention Facility.  
            (Calexico).


            (4) U.S. Marshals contract with Corrections Corporation of  
            America (CCA) to detain immigrants at the Otay Detention  
            Facility (San Diego).





          According to the author, these four privately run facilities  
          hold almost 85% of detainees statewide, approximately 3,700  
          people, with the rest held in county jail facilities that  
          contract with federal immigration authorities.  Specifically,  
          ICE and the U.S. Marshals have intergovernmental service  
          agreements with four counties, for the detention of immigrants  
          at the Yuba County Jail (Marysville), Rio Consumnes Correctional  
          Center (Elk Grove), the West County Detention Facility  
          (Richmond), James Musick Facility (Irvine), Theo Lacy Facility  
          (Orange).  Lastly, they contract with the City of Santa Ana to  
          detain immigrants at the Santa Ana City Jail.  











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          Altogether, CIVIC reports that these facilities hold a total of  
          approximately 6,276 immigrants per day in civil confinement.   
          CIVIC also reports that many of these facilities operate under a  
          perverse contractual incentive where they are guaranteed a  
          minimum number of detainees in their facility at all times, thus  
          ensuring their profits.  For example, according to CIVIC, at the  
          Adelanto Detention Facility (ADF), ICE is guaranteed 975  
          detainees at all times with a per diem rate of $111 per bed per  
          day.  The City of Adelante, in opposing this bill, shares data  
          showing that in 2015, GEO Group (the operator of the facility)  
          paid the city $300,000 in "fiscal mitigation payments" and  
          $50,000 as an annual administration fee, as well as $175,000 in  
          funding for one additional law enforcement officer.  (Additional  
          monies received by GEO were in the form of property and sales  
          taxes.)  The City reports that the number of beds has been  
          recently increased to 1940 beds, and that effective June 2016,  
          the annual fiscal mitigation payments and administrative fees  
          will increase to $1,013,600, over a 50% increase from last year  
          alone.


          


          Private immigrant detention facilities operate with no mechanism  
          for public oversight.  The author contends that because private  
          for-profit detention facilities operate with little to no  
          oversight, they are essentially accountable only to their  
          shareholders and not the people of the California.  For-profit  
          detention facilities claim exemptions to the public disclosure  
          requirements under the Freedom of Information Act (FOIA) (5  
          U.S.C. Sec. 552) because they are private corporations, which  
          makes the potentially unlawful conduct occurring within the  
          facility hidden from discovery.  For example, a 2013 article in  
          Forbes noted that "if serious questions arise about?the 16,500  
          federal immigration detainees held in privately-operated  
          facilities under contracts with the U.S. Department of Homeland  








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          Security, there's no legal remedy in place forcing those  
          questions to be answered." (Matt Stroud, Private Prisons Are  
          Exempted From Federal Disclosure Laws; Advocates Say that Should  
          Change, (Feb. 7, 2013) Forbes.) 





          The private detention facilities similarly claim an exemption to  
          the California Public Records Act (CPRA) (Gov. Code Sec 6250 et  
          seq).  CIVIC notes that despite numerous reports of inadequate  
          medical care, suicide attempts, sexual assault, and even deaths  
          at for profit immigrant detention facilities, it is difficult to  
          obtain information about these facilities.  CIVIC explains the  
          process for obtaining information about private for profit  
          immigrant detention facilities as follows:





            [A] person can FOIA the IGSA between ICE and the private  
            prison.  When this occurs, ICE is required to ask the  
            corporation if they are OK with the government disclosing it.   
            If the corporation is OK, then it will be disclosed.  However,  
            it is completely in the discretion of the private prison  
            corporation whether any document pertaining to the IGSA or any  
            other aspect of the business is disclosed through a FOIA  
            request.





          As a result, abuse and inhumane treatment of detainees is  
          reportedly tolerated and persists in these facilities because  
          the public has no dependable mechanism for getting information  
          about what is going on behind closed doors.  Journalists and  








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          advocacy groups like CIVIC are occasionally able to document  
          problems and incidents of mistreatment at these facilities, but  
          only with the cooperation of the facilities themselves.  The  
          public policy of California is certainly not to allow the abuse  
          of people who are detained by the government in facilities where  
          there is no transparency or oversight.  In fact, California has  
          enacted many recent laws protecting the rights of immigrants,  
          and in this session alone this Committee has approved AB 2027  
          (Quirk), to assist immigrant victims of human trafficking apply  
          for a U-Visa by expediting the process of obtaining the  
                                                                necessary certification of helpfulness, and AB 60 (Gonzales) to  
          establish stronger consumer protections for immigrants seeking  
          relief under prospective federal immigration reform and  
          executive action.  





          Thus, the Committee believes it is consistent with the public  
          policy of this state to not enable private companies to profit  
          from detaining immigrants in California under questionable  
          conditions, especially where there is so little public  
          transparency or accountability.  Accordingly, this bill would  
          prohibit local governments and law enforcement from contracting  
          with companies that operate for-profit immigration detention  
          facilities to detain immigrants.  The Committee notes that the  
          Legislature lacks authority to prohibit private immigrant  
          detention facility operators from contracting directly with ICE  
          or federal authorities to hold immigrants, and this bill does  
          not attempt to preclude those contracting practices.


          


          Despite lack of transparency, advocates have documented patterns  
          of widespread abuse of immigrants held in private detention  
          facilities.  The Committee has received a number of reports and  








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          letters in support of this bill from immigrant advocates,  
          watchdog organizations, and human rights advocates describing  
          widespread incidents of abuse and mistreatment of immigrants  
          held in private detention facilities in California, as well as  
          in facilities in other states operated by the same companies  
          that operate facilities in California.  In its report "Abuse in  
          Adelanto: An Investigation into a California Town's Immigration  
          Jail," CIVIC details a number of disturbing examples of  
          prolonged detention, medical abuse and neglect, violations of  
          religious freedom, attempted suicides, and the negligent deaths  
          of detainees-all at the Adelanto facility alone.  The National  
          Immigrant Justice Center reports that among LGBT individuals in  
          the detained population, there are higher accounts of the use of  
          solitary confinement, sexual abuse, and poor medical care in  
          immigration detention facilities.  (See National Immigrant  
          Justice Center, Stop Abuse of Detained LGBT Immigrants;  
          available at:  http://www.immigrantjustice.  
          org/stop-abuse-detained-lgbt-immigrants  .)





          Human Rights Watch writes that it has interviewed many  
          transgender women in immigration detention who report being  
          subjected to sexual assault and regular strip searches by male  
          guards, including at the Santa Ana City jail, and others who  
          report having been held in abusive conditions of indefinite  
          solitary confinement that are justified by prison authorities as  
          a measure for transgender detainees' protection.  Finally, CIVIC  
          summarizes cases from several other states where the same  
          private detention center companies (namely, Geo Group, CCA, and  
          MTC) have faced lawsuits (and in some cases been held civilly  
          liable) for acts of sexual harassment, wrongful death, and  
          medical neglect, among other things.












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          To address these issues, the bill prohibits immigrant detention  
          facilities, their agents, or those acting on their behalf from  
          depriving immigrant detainees from medical care, freedom from  
          harm or harassment, and privacy.  The bill provides that medical  
          care includes HIV medication and transition-related health care,  
          and further prohibits the denial of medical care on the basis  
          that an immigrant is likely to be released or deported.  Among  
          other things, the bill requires immigrant detention facilities  
          to: (1) ensure that all medical records of the detainee are  
          promptly transferred to ICE at the time of transfer or promptly  
          provided to the facility to which the detainee is transferred;  
          (2) ensure that all detainees receive all medications needed  
          while in transit; (3) ensure that a detainee's treatment plan is  
          received by the medical personnel at the facility to which the  
          detainee is being transferred; and (4) ensure that there is no  
          delay, disruption, or denial of medical treatment, after or  
          before detainee transfer.  The bill also prohibits the  
          involuntary placement of immigrant detainees in segregated  
          housing because of the detainee's actual or perceived gender,  
          gender identity, gender expression, or sexual orientation.





          Lack of access to legal representation and telephone  
          communication.  Because immigration proceedings are civil  
          matters, not criminal, detainees have fewer rights afforded to  
          them than criminal defendants, including the right to an  
          attorney.  CIVIC reports, for example, that of the 89 people  
          detained at ADF that it monitored over a six-month period, only  
          12.3 percent had legal representation-below the already low  
          national average of 16 percent (Abuse in Adelanto: An  
          Investigation into a California Town's Immigration Jail (October  
          2015); CIVIC and Detention Watch Network.)  Because most  
          detainees go completely without legal representation, it is  
          essential that they have access to a law library or telephone  
          communications where they can communicate with advocates or  








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          family members outside the center who can arrange assistance.   
          Even where detainees at Adelanto had legal representation, CIVIC  
          reported the difficulties that these people experienced due to  
          obstructive actions taken by facility staff.  The lack of access  
          to legal representation is even more tragic because many  
          detainees in custody may, in fact, qualify to remain in the  
          U.S., but are instead deported because they were never able to  
          obtain the assistance of legal counsel. 





          To address these issues, the bill requires immigrant detention  
          facilities to have a Legal Orientation Program, as specified,  
          that includes an orientation on immigration removal proceedings  
          and forms of relief, distribution of self-help materials,  
          provision of private and individual consultations with  
          unrepresented detainees to discuss their cases, and referrals to  
          pro bono legal services.  In addition, the bill specifically  
          prohibits immigrant detention facilities from depriving  
          immigrant detainees from access to an attorney or other  
          authorized legal representative, and access to translation or  
          interpreters.


          


          Codifying the national standards for basic care in immigrant  
          detention facilities, promulgated by ICE for facilities it  
          contracts with.  ICE has promulgated a series of national  
          standards laying out the requirements for basic care in  
          immigrant detention facilities, known as the Performance-Based  
          National Detention Standards 2011 as corrected and clarified in  
          February 2013 (Hereafter, PBNDS 2011).  ICE uses national  
          detention standards to govern conditions of confinement in its  
          detention facilitates established through contracts with those  
          facilities.  (United States Government Accountability Office,  








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          "Immigration Detention" Additional Actions Could Strengthen DHS  
          Efforts to Address Sexual Abuse, p. 12 (Nov. 2013), Available  
          at:  http://www.gao.gov/assets/660/659145.pdf )  Immigration  
          detention facilities agree to follow these standards pursuant to  
          the Inter-governmental Service Agreements (IGSAs) between the  
          federal government and the local governments, including when the  
          local entities contract out with for-profit corporations.  (See  
          e.g. Mesa Verde IGSA pp. 4, 7, 19; available at  http://www  .  
          documentcloud.org/ documents/  
          2631228-Mesa-Verde-CA-IGSA-Contract.html.)  





          This bill is necessary, proponents contend, to address the fact  
          that although the PBNDS 2011 standards may be agreed to under  
          the contract, the standards are unenforceable because they are  
          not required to be adhered to under any federal or state law.   
          Furthermore, there is no recourse for detainees when the  
          detention facilities commit acts that violate these standards.   
          In support of SB 1289, Human Rights Watch explains:





               Many of [the abuses documented in California] violate  
               the 2011 Performance-Based National Detention Standards  
               (PBNDS) promulgated by US Immigration and Customs  
               Enforcement (ICE) in 2011.  The PBNDS establish  
               concrete standards on access to counsel, visitation,  
               medical and mental health care, solitary confinement,  
               and sexual assault prevention. Unfortunately, the  
               measures are not legally binding and have only been  
               implemented at select facilities that have voluntarily  
               elected to modify their operating agreements with ICE.  
               Without a mechanism to ensure compliance with these  
               standards by all facilities, such as the one SB 1289  








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               would provide, too many immigrant detainees suffer  
               basic rights abuses.





          An additional federal policy, ICE Directive 11065.1 (Review of  
          the Use of Segregation for ICE Detainees), was created to govern  
          the placement of immigrant detainees in solitary confinement.   
          The directive was created after a joint study by two human  
          rights organization revealed that immigrant detainees were  
          increasingly placed in solitary confinement due to mental  
          illness, sexual orientation, or not speaking English.  (See  
          Invisible in Isolation:  The Use of Segregation and Solitary  
          Confinement in Immigration Detention (Sept. 2012), Heartland  
          Alliance and Physicians for Human Rights.)  Unfortunately, this  
          policy directive is equally unenforceable by immigrant  
          detainees, as there is no law requiring it to be followed.





          Accordingly, this bill seeks to create enforceable rights for  
          immigrant detainees centered on the national standards described  
          above.  The bill provides that when an immigrant detention  
          facility chooses to enter into a contract to detain immigrants  
          in civil immigration proceedings, it shall detain immigrants  
          only pursuant to a contract that requires the entity contracting  
          with DHS or other federal agency to adhere to the PBNDS 2011  
          standards as well as ICE Directive 11065.1.  The bill makes  
          clear that, as a policy matter, every immigrant detention  
          facility in California should be subject to the same national  
          standards for the detention of immigrants, including private  
          detention facilities contracted with local governments.   
          Mandating that private immigration detention facilities in  
          California meet national standards is intended to prevent and  
          reduce patterns of abuse that have been documented in these  








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          facilities.





          This bill allows enforcement of treatment standards by an  
          immigrant detainee through a private right of action, or by  
          public prosecution.  This bill would require that immigrant  
          detention facilities adhere to the PBNDS 2011 standards and ICE  
          Directive 11065.1, and other rights granted by this bill.   
          Importantly, the bill will, for the first time, provide an  
          enforcement mechanism to allow an immigrant detainee who has  
          been deprived of his or her rights to bring a civil action for  
          damages, including, but not limited to, damages under Civil Code  
          Section 52, injunctive and other appropriate equitable relief,  
          when an immigrant detention facility, or its agent or person  
          acting on its behalf, deprives the detainee of their rights  
          created under this bill, or rights specified in the PBNDS 2011  
          standards or ICE Directive 11065.1.  The bill further specifies  
          that an action brought under the bill is independent of any  
          other action, remedy, or procedure that may be available to an  
          individual under any other provision of law, thus preserving all  
          other remedies that may be available to the detainee.





          This bill also allows enforcement by the Attorney General, any  
          district attorney, or city attorney to allow a civil action for  
          injunctive and other appropriate equitable relief to be brought  
          in the name of the people of the State of California, and also  
          allows the prosecutor to seek a civil penalty of $25,000, as  
          specified, when an immigrant detention facility deprives an  
          immigrant detainee of their rights created under this bill or  
          rights under the PBNDS 2011 standards or ICE Directive 11065.1.










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                                                                    Page  20





          


          Proposed Author's Amendments.  The author proposes a series of  
          technical amendments that correct inconsistent drafting,  
          reorganize the different sections of the bill, and combine  
          everything into a single section of the Civil Code.  The  
          amendments are non-substantive and technical in nature.





          ARGUMENTS IN OPPOSITION:  This bill is opposed by the California  
          State Association of Counties (CSAC), who state:





               CSAC opposes any legislation that would limit a  
               county's authority to contract with a facility that  
               detains offenders whether they are immigrants, felons,  
               or misdemeanants. Almost half of California's county  
               jails have some sort of capacity order limiting the  
               number of offenders they can hold before they must be  
               released because of overcrowding. SB 1289 ties local  
               law enforcement's hands and increases the possibility  
               of litigation. Currently, the City and County of San  
               Francisco and San Francisco Sheriff Ross Mirkarimi are  
               being sued by Kate Steinle's family in a wrongful death  
               lawsuit, for releasing Juan Francisco Lopez-Sanchez  
               from jail without notifying federal immigration  
               officials. While Mr. Lopez-Sanchez was a seven-time  
               convicted felon, there was no active warrant for him.  
               The San Francisco Sheriff's Department released him  
               stating that they had no "legal basis" to hold him.










                                                                    SB 1289


                                                                    Page  21








          In response, the author notes that in the San Francisco case,  
          Lopez-Sanchez was not released from county jail because of  
          overcrowding conditions, but in fact because of local San  
          Francisco law that did not give the Sheriff legal authority to  
          continue to hold him.





          The bill is also opposed by the California State Sheriffs'  
          Association, which states:





               When local correctional facilities house detained  
               immigrants, they do so in coordination with the federal  
               government, according to the laws and standards created  
               by federal authorities.  Additionally, state  
               regulations provide minimum standards for all public  
               detention facilities.  We believe SB 1289  
               inappropriately inserts the state into matters that are  
               appropriately governed by federal authorities.  Given  
               the fact that the federal government has occupied the  
               field of immigration enforcement, it is certainly  
               possible that this measure would be preempted by  
               federal law. Additionally, by creating public and  
               private rights of action for alleged violations of the  
               federal guidelines and the bill's standards, SB 1289  
               exposes local governments to state civil liability  
               despite federal oversight and enforcement.











                                                                    SB 1289


                                                                    Page  22







          In response to the California State Sheriffs' Association's  
          assertion that the bill might be preempted by federal law, the  
          author responds:





               Immigration is federally regulated.  However, this bill  
               is not about immigration enforcement, this is about  
               ensuring state standards for treating people humanely.   
               The state is fully within its jurisdiction to assert  
               higher standards of care for detainees being held in  
               our state.  Regardless, the facilities in California  
               are contracting with local governments, which the state  
               has purview over.





          With respect to the Sheriffs' opposition to creating a private  
          right of action to enforce the minimal standards of treatment,  
          the author responds:





               The standards in SB 1289 are already included in all  
               immigration detention contracts in California, but are  
               currently not being upheld in large part because there  
               is no consequence if facilities fall below these  
               standards.  In fact, there have been many accounts  
               documenting repeated failures to adhere to these  
               standards, resulting in poor medical treatment and  
               other substandard care. [Citation omitted] There has to  








                                                                    SB 1289


                                                                    Page  23





               be a consequence for facilities that do not uphold the  
               standards, otherwise abuse and neglect will continue.   
               And, despite numerous reports of facilities falling  
               below the detention standards, historically there has  
               been little to no action even when facilities fall  
               below the federal standards.  Further, immigration  
               detention is civil in nature.  It is thus important  
               that we provide protections to this especially  
               vulnerable population, especially since these  
               individuals are not afforded some of the protections  
               built into the criminal justice system, such as the  
               right to government-appointed counsel.  





          REGISTERED SUPPORT / OPPOSITION:




          Support


          Community Initiatives for Visiting Immigrants in Confinement  
          (CIVIC) (sponsor)


          Friends Committee on Legislation of California


          Services, Immigrant Rights & Education Network


          Human Rights Watch 


          Silicon Valley Debug








                                                                    SB 1289


                                                                    Page  24







          The LGBT Center Orange County 


          Immigrant Youth Coalition


          Public Counsel 


          Immigration Equality 


          CARECEN Norcal and Socal 


          TransLatin@


          Justice Now 


          Congregations Building Communities


          Centro Laboral de Graton


          VIDAS


          American Immigration Lawyers Association  


          Pangea Legal Services 


          California Immigrant Youth Justice Alliance








                                                                    SB 1289


                                                                    Page  25







          Community United Against Violence 


          Catholic Charities of the East Bay


          National Immigration Law Center


          Asian Pacific Islander Legal Outreach 


          Lawyers Committee for Civil Rights


          ASPIRE


          Asian Law Alliance


          Marin Interfaith Alliance


          Interfaith Movement for Human Integrity 


          San Diego Volunteer Lawyer Program 


          Familia Trans Queer Liberation Movement


          East Bay Sanctuary Covenant


          Mount Diablo Unitarian Universalist Church 








                                                                    SB 1289


                                                                    Page  26







          Inland Empire Immigrant Youth Coalition


          Legal Services for Prisoners with Children


          Alliance for Boys and Men of Color


          UCI Law Clinic


          Immigrant Legal Resource Center


          Motivating Individual Leadership for Public Advancement


          Prison Law Office 


          PICO


          Jewish Family Services Los Angeles


          Transgender Law Center


          San Joaquin Immigrant Youth Coalition 


          A New Way of Life Re-entry 


          Center for Gender and Refugee Studies








                                                                    SB 1289


                                                                    Page  27







          Enlace


          Coalition for Humane Immigrant Rights of Los Angeles 


          San Fernando Dream Team 


          Dolores Street Community Services


          Causa Justa/Just Cause 


          LA LGBT Center


          SEIU


          Latino Coalition for a Healthy California 


          Californians for Safety and Justice


          Our Family Coalition




          Opposition


          California Sheriffs Association









                                                                    SB 1289


                                                                    Page  28






          California State Association of Counties


          City of Adelanto




          Analysis Prepared by:Anthony Lew / JUD. / (916)  
          319-2334