With much fanfare, California Governor Gavin Newsom recently signed into law, after passage through the legislature, a ban on private prisons, including private immigration detention facilities (see here and here).
Many progressives have hailed passage of the law, ostensibly because it represents a step toward "criminal justice reform" by "taking the profit motive" from incarceration. Being of a cynical disposition, I think there are other motives in mind that are somewhat less high-minded and noble, such as hobbling the ability of local political subdivisions, and no less the federal government, from having the capacity to hold their detained populations — most especially where immigration is concerned. But even assuming such overweening naiveté where motive is concerned, the ban is foolish; my colleague, Art Arthur, has written insightfully about the consequences of such myopic attitudes.
Among other things, the more you limit where individuals, citizen or alien, may be detained, the more likely it is that they will be placed in the remaining few facilities in remote locations — most likely far from friends, family, or even their legal counsel.
Then there is the reality that government contracting rules — whether at the county, state, or federal level — are incredibly complex, meaning that to construct brick-and-mortar facilities of the type appropriate for detained populations is a time-consuming and extraordinarily expensive proposition that costs the taxpayers a bundle (assuming that the money gets appropriated in the first place, which is by no means guaranteed or prompt, either). The truth that's ignored by opponents of private detention is that while they decry the "profit motive", corporate entities can build such facilities much more quickly and cheaply, and just as well, because they aren't hindered by rules that make sense for government. If you don't think that's true, then in the non-detention context, compare government vs. corporate offices and headquarters: Which are inevitably shabby, and which are more often modern workplace marvels?
And there's yet another negative consequence having to do with how slowly government moves. More prisoners shoved into the same old space inevitably leads to overcrowding, resulting in substantially less safe and sanitary detention conditions. When that happens, the government agency responsible for corrections or detention gets sued. How ironic, then, that the state of California, which sees itself as a part of the United States these days only when it's convenient (such as, for example, when queuing up to grab millions of dollars for disaster relief, road projects, or the like) will quite likely hasten the day it's hauled into federal court where some equally progressive judge will reliably assign a "special master" to oversee the administration of prisons and detention, taking much control out of the state's hands.
Finally, there is the strong likelihood that when it enacted a ban on private immigration detention facilities, the state has taken a step too far. Immigration is a uniquely federal prerogative, and I personally doubt that the state can constitutionally pull a flanking move of the type it's trying with this statute as a way to put another crimp, alongside its foolish sanctuary policies, in the ability of the United States government to enforce federal law throughout the land. And don't forget that Immigration and Customs Enforcement (ICE) isn't the only federal entity affected. It's entirely possible that the U.S. Marshals or Federal Bureau of Prisons will also be adversely affected.
The proper move on the part of the Departments of Justice and Homeland Security would be to file suit against California to force an inquiry into the constitutionality of such a provision, and litigate the matter as far as the Supreme Court if necessary. Will they? Or will they simply acquiesce once again to a completely unacceptable state of affairs?