BILL ANALYSIS Ó
SB 1289
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Date of Hearing: August 3, 2016
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez, Chair
SB 1289
(Lara) - As Amended June 30, 2016
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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
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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.
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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."
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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
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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
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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
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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
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