BILL ANALYSIS                                                                                                                                                                                                    



                                                                    SB 1289


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          SENATE THIRD READING


          SB  
          1289 (Lara)


          As Amended  June 30, 2016


          Majority vote


          SENATE VOTE:  24-14


           ------------------------------------------------------------------ 
          |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  |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
           ------------------------------------------------------------------ 










                                                                    SB 1289


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          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.









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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  








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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