By Kelly Recker*

On January 24, 2020, the Trump administration filed a lawsuit against the state of California over its recent ban on for-profit prisons.[i]  According to the administration’s allegations, the ban violates the Constitution’s Supremacy Clause by interfering with Congress’s power to delegate prison regulation authority to the Attorney General.[ii] However, in enacting AB32, California joined a string of other states with similar legislation limiting the presence of private prisons – including New York, Illinois, Iowa, and Nevada. The trend toward state bans on private prisons is largely a response to increasing concerns about mass incarceration, deeply dangerous prison conditions, and the role of private prisons in the Trump administration’s expanding immigrant detention policies.[iii] As awareness around these issues grows, it is likely that other states will try to follow in California’s footsteps. Analyzing why California’s ban may be struck down, while other state bans remain unchallenged, may provide a blueprint for states hoping to successfully eliminate private prisons within their borders.

The history of private prisons in America generally coincides with the passage of the 13th Amendment, which abolished slavery, “except as a punishment for crime whereof the party shall have been duly convicted.”[iv] Southern states responded by enacting Black codes to restrict the freedoms of former slaves, and used the new laws to incarcerate African-Americans for petty offenses.[v] Once imprisoned, states leased inmates to plantations and other private companies as sources of forced labor. This exploitation proved to be so lucrative that it grew into the convict lease system, in which states leased out entire prison populations to dig mines, build railroads, and expand growing industries.[vi] Convicts worked in extremely dangerous conditions, and death rates were staggeringly high; unlike slavery, the cost to replace prisoners was low, and in some states inmate death rates were as high as 25%.[vii] Public outcry gradually led states to decrease their reliance on private prisons, and in conjunction with falling incarceration rates in the 1950s, prison privatization seemed poised for extinction.[viii]

Instead, in large part due to the vast expansion of drug crime enforcement during the Nixon and Reagan administrations, incarceration rates skyrocketed in the 1970s and 80s.[ix] States struggled to keep up with the rapid increase in prisoners, and in 1983, the first modern private prison company, Corrections Corporation of America, was formed.[x]  As prison populations continued to swell, both state and federal agencies increasingly relied on private prisons to house inmates.[xi] Mirroring its brutal early history, the resurgence of private prisons was not without problems: private correctional facilities received a set amount of funding from the government per inmate, which incentivized cutting corners to increase profitability.[xii] Investigations into private prisons around the country revealed high rates of sexual assault, homicide, and deeply unsafe health conditions in both adult and juvenile detention centers.[xiii] At a private juvenile detention facility run by a major prison corporation, GEO Group, youth were “sexually preyed upon by staff and all too frequently suffered grievous harm, including death.”[xiv] At another youth facility, guards broke a child’s elbow, slammed another child’s head into the ground, and children reported receiving small portions of food infested with bugs.[xv] In an adult facility in Mississippi, a prisoner’s cries for urgent medical attention were ignored for so long he had to set fire to his cell in order to elicit a response.[xvi]

These investigations culminated in a 2016 Department of Justice report finding that private prisons were much more dangerous than their public counterparts, and then-Attorney General Sally Yates directed the Bureau of Prisons (BOP) to phase out any contracts with private facilities.[xvii]  However, shortly after President Trump’s election, then-Attorney General Jeff Sessions rescinded the BOP directive and affirmed the administration’s support for private prisons, in part due to the administration’s expanding immigrant detention policies.[xviii]

In the face of vacillating federal government policy, several states have responded with their own bans on private prisons. Twenty-two states simply do not use private prisons to house inmates, and five states currently have legislation prohibiting private prisons: Nevada, Illinois, New York, Iowa, and California.[xix] In addition, state legislators from Washington, Colorado, and Minnesota have all proposed limits or bans on private prison use.[xx] Most state bans prohibit their state governments from contracting with private prisons, but do not touch federal contracts. This effectively means that someone convicted of a state crime in, for example, New York, is certain to be housed in a state-operated public prison, but someone convicted of a federal crime in New York might be housed in a private prison if the federal government chooses to contract with a private facility. Illinois has had this kind of prohibition on state contracts with private prisons since the 1990s, but it recently expanded that policy to ban local contracts with private immigrant detention facilities as well.[xxi]

California’s ban follows its predecessors in prohibiting state contracts with private prisons, but it adds one more provision: banning the operation of private detention facilities entirely within the state.[xxii] The law offers some exceptions for “educational, vocational, medical or other ancillary services,” but these categories are narrowly-defined and do not include an exemption for immigrant detention facilities.[xxiii] As a result, GEO Group, the aforementioned private prison corporation, filed a lawsuit against California’s ban. GEO Group operates the two major private immigrant detention facilities in California and was recently awarded two 15-year renewal contracts worth several billion dollars.[xxiv] Shortly after GEO Group filed its lawsuit, the Trump administration also filed suit against California.[xxv] The administration argues that, “California, of course, is free to decide that it will no longer use private detention facilities for its state prisoners and detainees… but it cannot dictate that choice for the federal government, especially in a manner that discriminates against the federal government and those with whom it contracts.”[xxvi]

This argument is grounded in the Constitution’s Supremacy Clause, which establishes that federal laws generally take precedence over state laws. Accordingly, the administration argues that federal incarceration policy – including the federal government’s decision to detain inmates and immigrants in private facilities – preempts California’s total ban on private prisons. California could try to argue the ban is protected by anti-commandeering doctrine, which essentially prohibits the federal government from requiring states to adopt or enforce federal laws. As the Supreme Court held in New York v. United States, “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.”[xxvii] However, that defense is unlikely to be successful because the federal government is not requiring California to enforce any laws – it is just asserting its authority to house federal detainees in facilities of its choosing, and state law cannot interfere with that. California may instead argue that the state has an interest in protecting the health, safety, and general welfare of immigrants and detainees within its borders, especially given the deeply inhumane conditions in private facilities. However, this too may not survive the federal government’s argument that federal incarceration policies remain supreme to state laws.

California’s provision banning the operation of all private prison facilities is thus a significant departure from previous state bans, and one that may therefore be struck down. As more states seek to minimize private prisons within their borders, modeling proposed legislation on that of states like New York or Illinois is more likely to withstand federal challenge. Furthermore, as the number of states successfully avoiding or banning private prisons shifts to a majority, the possibility of Congress enacting a federal ban on private prisons may become increasingly likely – ultimately achieving the objective California initially sought.

*Kelly Recker is a Junior Editor on MJEAL. They can be reached via email at kellyrec@umich.edu.  


[i] Liam Dillon, Trump administration sues California over private prison ban, L.A. Times (Jan. 25, 2020), https://www.latimes.com/california/story/2020-01-25/trump-administration-sues-california-over-private-prison-ban.

[ii] See Complaint at 2, United States v. Newsom, (2020) (No. 20-154) available at https://ecf.casd.uscourts.gov/doc1/037115480265.

[iii] See Catherine Kim, Private prisons face an uncertain future as states turn their backs on the industry, Vox (Dec. 1, 2019), https://www.vox.com/policy-and-politics/2019/12/1/20989336/private-prisons-states-bans-califonia-nevada-colorado.

[iv] U.S. Const. amend. XIII, §1.

[v] Cynthia Elaine Tompkins, Private Prisons: Profiting from, and Contributing to, Mass Incarceration, 8 L. J. Soc. Just. 1, 6-10 (2017) (discussing the early evolution of private prisons).

[vi] Id.

[vii] Shane Bauer, The True History of America’s Private Prison Industry, Time (Sept. 25, 2018), https://time.com/5405158/the-true-history-of-americas-private-prison-industry/.

[viii] See 1 Prison Privatization: The Many Facets of a Controversial Industry 15-16 (Byron Eugene Price & John Charles Morris eds., 2012).

[ix] See Tompkins, supra note v, at 14.

[x] The Corrections Corporation of America, by the Numbers, Mother Jones (Jul./Aug. 2016), https://www.motherjones.com/politics/2016/06/cca-corrections-corperation-america-private-prisons-company-profile/.

[xi] See Tompkins, supra note v, at 14.

[xii] Laura I. Appleman, Cashing in on Convicts: Privatization, Punishment, and the People, 2018 Utah L. Rev. 579, 585 (2018) (discussing the profit motivations of private prisons).

[xiii] Id.

[xiv] Id. at 587.

[xv] Chris Kirkham, Florida’s Lax Oversight Enables Systemic Abuse at Private Youth Prisons, Huffington Post (Oct. 23, 2013), http://projects.huffingtonpost.com/projects/prisoners-of-profit-2.

[xvi] Timothy Williams, Inside a Private Prison: Blood, Suicide and Poorly Paid Guards, N.Y. Times (Apr. 3, 2018), https://www.nytimes.com/2018/04/03/us/mississippi-private-prison-abuse.html.

[xvii] Office of the Inspector Gen., U.S. Dep’t of Justice, Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons (Aug. 2016), https://oig.justice.gov/reports/2016/e1606.pdf.

[xviii] Ames C. Grawert & Natasha Camhi, Criminal Justice in President Trump’s First 100 Days, Brennan Ctr. for Justice 1, 19-20 (2017), https://www.brennancenter.org/sites/default/files/analysis/Criminal_Justice_in_President_Trumps_First_100_Days.pdf.

[xix] Kim, supra note iii.

[xx] See: Lilly Fowler, Washington could become the next state to ban private prisons, Crosscut (Jan. 23, 2020), https://crosscut.com/2020/01/washington-could-become-next-state-ban-private-prisons; Elise Schmelzer & Alex Burness, Could Colorado end the use of private prisons by 2025? Lawmakers want to find out, Denv. Post (Oct. 19, 2019), https://www.denverpost.com/2019/10/19/colorado-private-prisons-geo-corecivic/; Stephen Montemayor, New legislative measures would boot private prison industry from Minnesota, StarTribune (Feb. 26, 2019), http://www.startribune.com/new-legislative-measures-would-boot-private-prison-industry-from-minnesota/506401162/.

[xxi] Sophia Tareen, Advocates hope Illinois private detention ban sparks change, Associated Press (July 13, 2019), https://apnews.com/d6ec44532d9840a3a7455b47a6540b07.

[xxii] A.B. 32, 2019 Leg., Reg. Sess. (Cal. 2019), available at https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB32.

[xxiii] Id.

[xxiv] See Rebecca Plevin, ICE signs long-term contracts worth billions for private detention centers, dodging new state law, Desert Sun (Dec. 20, 2019), https://www.desertsun.com/story/news/2019/12/20/ice-signs-long-term-contracts-private-detention-centers-two-weeks-ahead-state-law/2713910001/; see also Andrea Castillo, Firm sues California over law banning private prisons and immigration detention centers, L.A. Times (Dec. 31, 2019), https://www.latimes.com/california/story/2019-12-31/prison-company-sues-california-over-law-banning-private-immigration-detention-centers.

[xxv] During the 2016 election, GEO donated $225,000 to the pro-Trump political action committee Rebuilding America Now, and later relocated their company headquarters to be at a Trump resort in Boca Raton, Florida; Sharita Gruberg, Trump’s Executive Order Rewards Private Prison Campaign Donors, Ctr. for Amer. Progress (June 28, 2018), https://www.americanprogress.org/issues/immigration/news/2018/06/28/452912/trumps-executive-order-rewards-private-prison-campaign-donors/.

[xxvi] Complaint at 2, United States v. Newsom, (2020) (No. 20-154) available at https://ecf.casd.uscourts.gov/doc1/037115480265.

[xxvii] New York v. United States, 505 U.S. 144, 162 (1992).

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