BILL ANALYSIS                                                                                                                                                                                                    



                                                                    SB 1289


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          SENATE THIRD READING


          SB  
          1289 (Lara)


          As Amended  August 19, 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, starting January 1, 2018, and requires  
          these facilities to uphold national standards for humane  
          treatment of detainees.  Specifically, this bill:   


          1)Prohibits a city, county, city and county, or a local law  
            enforcement agency, starting January 1, 2018, 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)Provides that any facility that detains an immigrant pursuant  
            to a contract with a city, county, city and county, or a local  
            law enforcement agency is subject to the California Public  
            Records Act (Chapter 3.5 (commencing with Government Code  
            Section 6250) of Division 7 of Title 1 of the).


          4)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  








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            interpreters; c) medical care; d) freedom from harm or  
            harassment; and e) privacy.


          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  
            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  








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            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.


          FISCAL EFFECT:  According to the Assembly Appropriations  
          Committee:


          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  








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            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  
          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  








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          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  
          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,  








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          Private Prisons Are Exempted From Federal Disclosure Laws;  
          Advocates Say that Should Change, (February 7, 2013) Forbes.) 


          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  
          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, starting  
          January 1, 2018, 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.


          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 recently amended in the  
          Assembly, this bill establishes that any facility that detains  
          an immigrant pursuant to a contract with a city, county, city  
          and county, or a local law enforcement agency shall be subject  
          to the California Public Records Act (Chapter 3.5 (commencing  
          with Section 6250) of Division 7 of Title 1 of the Government  
          Code).









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          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.)  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 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.


          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  








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          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.  


          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  








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          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 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.  Under this  
          bill, the AG, any district attorney, or city attorney may bring  
          a civil action for injunctive and other appropriate equitable  
          relief 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.   
          Recent Assembly amendments remove authority for enforcement by  
          an immigrant detainee through a private right of action.


          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  








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          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."




          Analysis Prepared by:                                             
          Anthony Lew / JUD. / (916) 319-2334  FN: 0004621