Attorney General Bonta Files for Rehearing En Banc in Defense of California’s Ban on For-Profit, Private Prisons and Detention Facilities

OAKLAND – California Attorney General Rob Bonta — on behalf of the State of California — today filed a petition for rehearing en banc before the U.S. Court of Appeals for the Ninth Circuit in defense of California’s first-in-the-nation ban on for-profit, private prisons and detention facilities under Assembly Bill 32 (AB 32). The petition urges the Ninth Circuit to reconsider a divided appellate decision by a three-judge panel reversing the trial court’s dismissal of the current challenge regarding the law’s application to private immigration detention facilities. Signed into law in 2019, AB 32 works to protect the health and welfare of people in custody within California’s borders by prohibiting private companies from operating detention facilities in the state.

“As the lead author of AB 32 in the Assembly, I’m proud to be able to now defend the law on behalf of the people of California as Attorney General,” said Attorney General Rob Bonta. “The record is clear: For-profit, private prisons and detention facilities that treat people like commodities pose an unacceptable risk to the health and welfare of Californians. AB 32 puts people over profits. It is a law of general applicability that recognizes the federal government’s own documented concerns over these facilities. California will continue to press forward to ensure the dignity and rights of everyone in our state are protected. We respectfully ask the Ninth Circuit to let us make our case.”

“For too long private prisons have turned a profit at the expense of Californians. This practice does not reflect the values of our state and disproportionately impacts minority and low-income communities,” said Governor Gavin Newsom. “Private prisons do not prioritize the well-being and rehabilitation of those in custody. I am proud that California is leading the effort to eliminate for-profit prisons as we continue to advance best practices to improve public safety throughout our state.”

The California Legislature passed AB 32 to address serious, documented harms to the safety and welfare of those detained in for-profit, private detention facilities. The Legislature was not alone in expressing these concerns. It relied on a number of reports and studies, including a report by the Office of the Inspector General for the U.S. Department of Justice, which found that private prisons housing people in federal detention are unsafe, lack transparency and accountability, create unfair and exploitive conditions for detained individuals, and prioritize profits over rehabilitation and the well-being of those in detention. In fact, in 2016, the U.S. Department of Justice announced a plan to end its use of private prisons, citing safety and security in the facilities as significant reasons. Although the subsequent federal administration put aside that plan, the current administration has since restarted those efforts through a recent executive order aimed at eliminating federal use of privately-operated criminal detention facilities. Ultimately, AB 32 is a generally applicable health and safety measure aimed at addressing the dangers posed by private detention facilities — whether they are under contract with local, state, or federal governments. Without those important protections, the safety and welfare of thousands of Californians who are currently detained or may be detained in the future by private companies would be put at risk.

In the petition for rehearing en banc by the Ninth Circuit, the State of California asserts, among other things, that the appellate panel opinion:

• Conflicts with precedent established by the U.S. Supreme Court and the Ninth Circuit;
• Erroneously ruled that federal law preempts AB 32;
• Incorrectly concluded that AB 32 discriminates against federal contractors in favor of state and local contractors; and
• Implicates important state sovereign interests, including the traditional state power to regulate private actors to protect the health and safety of state residents.

A copy of the petition for rehearing en banc is available here.