Bill to eliminate private prisons may be limited by court order

The Legislature passed a bill aimed at winding down private prisons in California but any court order limiting how many inmates can be housed in a facility may trump the lawmakers’ intentions, even if Gov. Gavin Newsom signs the bill into law.

AB 32 bars the Department of Corrections and Rehabilitation from renewing or entering into any new contracts with private, for-profit prisons to incarcerate state inmates, effective Jan. 1 upon the governor’s approval.

But an amendment to the bill, which allows the department to renew or enter into new contracts to comply with a court-ordered prison population cap, could compromise the bill’s stated goal: to end the incarceration of state inmates in private, for-profit prisons. If incarceration rates increase, so will the potential for the prisons department to invoke the population cap clause.

Still, Jeremy Thornton, a board member for the California Public Defenders Association, is optimistic about the bill, partly because of adjacent efforts to reduce prison population sizes.

“I think the Legislature is very in tune with ending this ... prison pipeline,” Thornton said in a phone interview Friday. He cited the Senate’s pending review of SB 136, which would repeal the one-year sentence enhancement that is added to inmates’ base sentences for each of their prior prison or felony jail terms, as a move in the right direction. Thornton also pointed to Propositions 36, 57 and 47 as reasons he is optimistic.

“I think the department is under a tremendous amount of pressure to not utilize private prisons,” he added after the bill passed Wednesday. “Generally, there is a lot of pressure to stop putting people in prison.”

AB 32 was introduced last December, largely in response to the separation of children from their parents in cases of asylum seekers and other adults who crossed the border without legal permission. According to one of AB 32’s authors, Assemblymember Rob Bonta, D-Oakland, the policy resulted in the incarceration of thousands of adults and children in for-profit, private detention centers.

Three of the largest federal immigrant detention centers in the country, located outside of San Antonio, Texas, are run by two for-profit, private prison companies: CoreCivic Inc. and Geo Group Inc.

Both companies run facilities in California.

“A private, for-profit company that’s traded on Wall Street will inherently be incentivized to maximize profits and minimize costs — including the important ‘costs’ of investments in programs, services and rehabilitation efforts for inmates — through warehousing our inmates. They have a duty to shareholders, not to California,” Bonta said in a press release in December.

On Thursday, the Legislature also passed AB 1618, which will prevent defendants who have struck plea bargains from being retroactively impacted by or benefiting from future changes in the law. The bill passed the Senate by a vote of 7-0 following amendments that defendants with plea deals will not be able to benefit from legislative enactments, initiatives, appellate decisions or other changes in the law that would offer them a better deal. “Judicial” had previously been used in place of “appellate” and was replaced by the latter in the final version.

A co-author on AB 32, Assemblywoman Lorena Gonzalez, D-San Diego, is also the author of AB 1747, another bill that puts new limits on the handling of inmates in California, and was pending in the Senate on Friday. The bill limits the type of data that is available to law enforcement via a telecommunications system run by the U.S. Department of Justice. AB 1747 prohibits users of the system from accessing any data for immigration enforcement purposes, except for criminal history information. Gonzalez’s website states the bill specifically targets Immigration and Customs Enforcement and aims to prevent ICE agents from accessing the personal information of California residents, such as dates of birth, addresses and photos.