“There should be no private prisons, period, none, period. And we are working to close all of them.”
Those are the words of President Joe Biden in April 2021, when he was called out by immigrant rights activists at a rally celebrating his 100th day in office. This was a welcome promise to immigrants and advocates – private detention facilities have a consistent and appalling track record of failing to keep people in their care healthy, safe, and alive.
Now, more than two years later, the Biden administration has successfully advocated to keep private immigration jails open in the state of New Jersey. On August 29, 2023, U.S. District Court Judge Robert Kirsch ruled in favor of private prison company CoreCivic to hold unconstitutional a New Jersey law that bans private corporations from entering into, renewing, or extending contracts to detain people for civil immigration violations. The ruling allows U.S. Immigration and Customs Enforcement’s (ICE) only immigration jail in New Jersey – the Elizabeth Detention Center, which is run by CoreCivic – to continue operating.
What is AB 5207 and Why Did CoreCivic File Suit Against It?
The New Jersey assembly passed AB 5207 and Governor Phil Murphy signed it into law in August 2021. The law prohibits the state, counties and other subdivisions, as well as private entities from contracting to own or operate immigration detention facilities in the state. When AB 5207 was enacted, ICE had four immigration jails in New Jersey. Since the law’s passage, the three facilities operated by New Jersey counties (Bergen, Essex, and Hudson) stopped housing detainees for ICE.
The last remaining facility, Elizabeth, is operated by CoreCivic, one of the largest private prison companies in the United States. ICE’s contract with CoreCivic was set to expire on August 31, 2023, and under the law, could not be renewed.
CoreCivic filed suit in February 2023 and moved for an injunction in June. The Biden administration filed a statement of interest in July supporting the corporation’s claims. CoreCivic and the government argued that AB 5207 violates the Supremacy Clause of the Constitution because it intrudes on the federal government’s ability to use private contractors to detain noncitizens and therefore improperly restricts the authority granted to the Executive by federal law.
The district court agreed, holding that if enforced against CoreCivic, AB 5207 would create “an intolerable choice” for ICE: it would have to either release detainees or detain noncitizens without the help of local county or private contractors. Judge Kirsch found that as applied to CoreCivic, the law violates the intergovernmental immunity doctrine and is preempted by the federal immigration detention scheme. It was thus unconstitutional under the Supremacy Clause. The Ninth Circuit came to a similar conclusion last year regarding a California law banning private prisons.
However, the district court ruling does not invalidate the part of AB 5207 that prohibits New Jersey and its counties from contracting with ICE to detain immigrants. Last year, the Seventh Circuit upheld a state law, the Illinois Way Forward Act, that also banned state agencies and political subdivisions from housing immigration detainees for ICE.
Private Prisons – Places of Horrific Abuse and Sources of Immense Profit
CoreCivic, along with its competitors, has already profited immensely off the incarceration of “civil” immigration detainees under this administration, and ICE has actually increased its reliance on companies. The ACLU found that as of July 2023, over 90% of people in ICE custody were held in facilities owned or operated by private corporations. Those companies’ profits have continued to grow; in 2022, CoreCivic’s contracts with ICE earned them $552 million in revenue; the Geo Group, another major player in the private prison industry, made an astonishing $1.05 billion off of ICE.
New Jersey passed AB 5207 to protect the health and safety of people detained in the state. And it had ample support for its concerns, including reports from federal inspectors that dangerous practices like the use of chemical agents on detainees, verbal abuse, prolonged solitary confinement, severe understaffing, unsanitary conditions, and inadequate medical care leading to death, were common at privately-run facilities.
New Jersey’s congressional delegation wrote a letter to the Department of Justice echoing these concerns, asking the administration to withdraw its support for Elizabeth because of the facility’s history of holding people in “inhumane conditions.” Yet the federal court largely ignored evidence about harms to immigrants in such jails.
Governor Murphy has appealed the judge’s decision to the Third Circuit. In the meantime, ICE has renewed its contract with CoreCivic for the Elizabeth Detention Center, at a cost to taxpayers of $19.9 million for the next year.
Judge Kirsch found that because enforcing AB 5207 against CoreCivic would cause the last immigration jail in New Jersey to close, the impact of additional states passing similar laws “would result in nothing short of chaos.” But chaos is in the eye of the beholder. As Yanet Candelario, the founder of an organization that supports people in detention and who was previously held at Elizabeth, said of her time there, “It felt like a nightmare. The human rights violations are unbelievable.”
FILED UNDER: Biden Administration, Immigration and Customs Enforcement, private prisons