BILL ANALYSIS Ó
SB 1289
Page 1
SENATE THIRD READING
SB
1289 (Lara)
As Amended June 30, 2016
Majority vote
SENATE VOTE: 24-14
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Judiciary |7-3 |Mark Stone, Alejo, |Wagner, Gallagher, |
| | |Chau, Chiu, Cristina |Maienschein |
| | |Garcia, Holden, Ting | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Appropriations |14-6 |Gonzalez, Bloom, |Bigelow, Chang, |
| | |Bonilla, Bonta, |Gallagher, Jones, |
| | |Calderon, Daly, |Obernolte, Wagner |
| | |Eggman, Eduardo | |
| | |Garcia, Holden, | |
| | |Quirk, Santiago, | |
| | |Weber, Wood, McCarty | |
| | | | |
| | | | |
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SB 1289
Page 2
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,
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 the Department of Homeland Security (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 (human immunodeficiency
virus) 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.
SB 1289
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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
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 (AG), any district attorney,
or city attorney to bring a civil action for injunctive and
SB 1289
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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 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 AG, 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.
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.
FISCAL EFFECT: According to the Assembly Appropriations
Committee:
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1)Attorney General (AG): Potentially significant workload
increase to General Fund (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.
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: This bill, sponsored by Community Initiatives for
Visiting Immigrants in Confinement (CIVIC), seeks to prohibit
local governments and law enforcement from contracting with
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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: "There have
been consistent reports of human rights abuses in (these)
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
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 United States
(U.S.) 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, located in the cities of Adelanto, Bakersfield,
Calexico, and 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 city and
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county jail facilities that contract with federal immigration
authorities for the detention of immigrants, including the Yuba
County Jail (Marysville), Rio Consumnes Correctional Center (Elk
Grove), West County Detention Facility (Richmond), James Musick
Facility (Irvine), Theo Lacy Facility (Orange), and the Santa
Ana City Jail.
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
United States Code (U.S.C.) Section 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 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, (February 7, 2013) Forbes.)
The private detention facilities similarly claim an exemption to
the California Public Records Act (CPRA) (Government Code Sec
6250 et seq). CIVIC notes that despite numerous reports of
abuses of detainees at for-profit immigrant detention
facilities, it is difficult to obtain information about these
facilities because the law gives complete discretion to the
private facility to allow the government to disclose any
document pertaining to the IGSA, pursuant to a FOIA request.
As a result, abuse and inhumane treatment of detainees is
reportedly tolerated and persists in these facilities because
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the public has no dependable mechanism for getting information
about what is going on behind closed doors. Journalists and
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. Accordingly, this bill
would prohibit local governments and law enforcement from
contracting with companies that operate for-profit immigration
detention facilities to detain immigrants. It should be noted
that the Legislature lacks authority to prohibit private
immigrant detention facility operators from contracting directly
with 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 bill is supported by a host of immigrant
advocates, watchdog organizations, and human rights advocates
who report 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 (Lesbian, Gay,
Bisexual, and Transgender) 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.)
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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 Adelanto that it monitored over a six-month period,
only 12.3% had legal representation-below the already low
national average of 16% (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 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
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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, Performance-Based National Detention
Standards (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, "Immigration Detention"
Additional Actions Could Strengthen DHS Efforts to Address
Sexual Abuse, p. 12 (November 2013), Available at:
http://www.gao.gov/assets/660/659145.pdf) Immigration detention
facilities agree to follow these standards pursuant to the IGSAs
between the federal government and the local governments,
including when the local entities contract with for-profit
corporations.
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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.
Proponents note that these standards are not legally binding,
and have only been implemented at select facilities that have
voluntarily elected to modify their operating agreements with
ICE. An additional federal policy, ICE Directive 11065.1, was
created to govern the placement of immigrant detainees in
solitary confinement. 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
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
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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. This bill also allows
enforcement by the AG, 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.
Opposition arguments. The California State Association of
Counties (CSAC) opposes this bill and any legislation that would
limit a county's authority to contract with a facility that
detains offenders whether they are immigrants, felons, or
misdemeanants. CSAC contends that "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. This bill ties local law enforcement's
hands and increases the possibility of litigation."
The bill is also opposed by the California State Sheriffs'
Association (CSSA), who believes that the bill inappropriately
inserts the state into matters that are governed by federal
authorities. CSSA states "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." In response, the author states, "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
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detainees being held in our state. Regardless, the facilities
in California are contracting with local governments, which the
state has purview over."
Analysis Prepared by:
Anthony Lew / JUD. / (916) 319-2334 FN:
0003991