BILL ANALYSIS Ó SB 1289 Page 1 Date of Hearing: August 3, 2016 ASSEMBLY COMMITTEE ON APPROPRIATIONS Lorena Gonzalez, Chair SB 1289 (Lara) - As Amended June 30, 2016 ----------------------------------------------------------------- |Policy |Judiciary |Vote:|7 - 3 | |Committee: | | | | | | | | | | | | | | ----------------------------------------------------------------- Urgency: No State Mandated Local Program: NoReimbursable: No SUMMARY: This bill prohibits local governments and law enforcement agencies from contracting with for-profit entities to detain immigrants on behalf of federal immigration authorities. This bill would require that immigrant detention facilities adhere to national immigration standards for the detention of immigrants. This bill further requires that immigrants in detention be provided other legal rights, as specified. This bill authorizes a private right of action against immigrant detention facilities and their agents for violations of the national detention standards or violations of the other rights SB 1289 Page 2 created by this bill, and authorizes the Attorney General, district attorneys, and city attorneys to bring suits against detention facilities for violations of the national detention standards or violations of other legal rights created by this bill. FISCAL EFFECT: 1)Attorney General (AG): Potentially significant workload increase (GF) should the AG choose to bring civil actions for injunctive and other equitable relief, offset in part by civil penalty revenues. Additional workload would include the cost of additional staffing to complete the drafting of pleadings, discovery, and extensive legal research required for these cases. To the extent the number and complexity of cases brought forward is significant, costs could rise into the hundreds of thousands of dollars annually. 2)Local prosecutors: Potentially significant non-reimbursable local costs (Local Funds) to bring civil actions for injunctive and other equitable relief, offset in part by civil penalty revenues. 3)Local governments/agencies: Potentially significant loss of future revenue (Local Funds) due to the inability to contract with for-profit entities for immigrant detention services. To the extent a local law enforcement agency opts to detain immigrants in its facilities through a direct contract with the federal government, the agency could incur potentially significant non-reimbursable costs (Local Funds) to ensure immigrant detainee rights as prescribed are met. SB 1289 Page 3 4)Private contractors/vendors: Unknown, potentially major costs (private funds) to adhere to the specified standards and processes for detainee transfers and rights to counsel, translators, interpreters, and medical care as outlined in the bill. COMMENTS: 1)Purpose. According to the author, "U.S. Immigration & Customs Enforcement (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. "This bill 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 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. This bill will ensure that immigrants' rights are protected and there is an opportunity for them to seek redress when they have not been upheld." SB 1289 Page 4 2)Background. 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 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. Local government and law enforcement entities that choose to contract with immigration authorities to detain immigrants must adhere to national immigration detention standards, promulgated by ICE regardless of whether they detain the immigrants in their local jails or contract their immigrant detention duties out to private for-profit corporations. But many detainees have reported experiencing deplorable conditions at city and county immigrant detention facilities in violation of the national standards. No meaningful enforcement mechanism currently exists to hold immigration detention facilities accountable, whether for-profit or run by local governmental agency, when they violate immigrant detainees' rights. In California, and around the country, for-profit detention facilities are increasingly relied upon to detain immigrants. Data indicates that 62% of all ICE immigration detention beds in the U.S. are operated by for-profit prison corporations, up from 49% in 2009. There are currently four for-profit detention facilities in California: a) ICE contracts with the City of Adelanto, who in turn contracts with GEO Group to detain immigrants at the SB 1289 Page 5 Adelanto Detention Facility (Adelanto). b) ICE contracts with the City of McFarland, who in turn contracts with GEO Group to detain immigrants at the Mesa Verde Detention Facility (Bakersfield). c) 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). d) 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. Because for-profit detention facilities are private, they SB 1289 Page 6 routinely claim exemptions to the California's Public Records Act and the federal Freedom of Information Act. Despite the lack of access to records through these acts, there have been reports of inadequate medical care, suicide attempts, sexual assault, and even deaths at for-profit immigrant detention facilities. Because immigration detention is technically a civil form of confinement, immigrants in immigrant detention facilities lack many of the safeguards of the criminal justice system, including access to counsel. 1)Arguments in Opposition. This bill is opposed by the California State Association of Counties (CSAC), which states, "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." 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 SB 1289 Page 7 federal guidelines and the bill's standards, SB 1289 exposes local governments to state civil liability despite federal oversight and enforcement. 2)Prior Legislation. a) AB 900 (Levine, Chapter 694, Statutes of 2015) allows youth aged 18-21 who have escaped violence and terror in Central America to come under the protection of a guardianship that can also help the youth obtain Special Immigrant Juvenile Status immigration relief. b) SB 674 (de León, Chapter 721, Statutes of 2015) allows youth aged 18-21 who have escaped violence and terror in Central America to come under the protection of a guardianship that can also help the youth obtain Special Immigrant Juvenile Status immigration relief. c) AB 1343 (Thurmond, Chapter 705, Statutes of 2015) requires defense counsel in criminal proceedings to provide accurate and affirmative advice and defense to immigrants to avoid unintended immigration consequences, like detention, deportation, and loss of citizenship eligibility. Analysis Prepared by:Jennifer Swenson / APPR. / (916) 319-2081 SB 1289 Page 8