A Private Prison Ban Could Be Coming in California

For the past decade, California leaders have been trying to reshape the criminal justice system  in response to a Supreme Court ruling that found the state’s prisons were dangerously overcrowded. Efforts have been made to reduce the state’s prison population by shortening sentences for many property and drug offenses and reforming the parole system, both of which were successful in bringing California closer to its goal—from operating at 190% capacity to 137.5%. 

But the state also used another strategy. State and local officials sought the help of private companies to build and run new prisons, allowing California to reduce overcrowding in state-run facilities.

That release valve may soon end, though, as a bill awaiting the governor’s signature would eventually abolish the use of private correctional facilities in the state, including jails, prisons and immigration detention centers, making it the fourth state to do so.

The bill passed with an overwhelming majority in the Democratically-controlled legislature, and while Gov. Gavin Newsom, a Democrat, has not said publicly that he will sign the bill, the governor has previously showed support for banning private prisons. During his inauguration in January, he said that “we will end the outrage of private prisons once and for all.” 

The bill would not immediately shutter private prisons, which house an estimated 2,200 people, less than 2% of the state’s prison population of around 131,000 people, or privately-run Immigration and Customs Enforcement detention facilities, which hold around 1,300 people in the state. Instead, the measure would ban any new corrections contracts with private companies and would phase out the use of private companies entirely by 2028. It would also forbid California from imprisoning people in private prisons in other states. 

Assemblymember Richard Bonta, a Democrat who authored the California bill, said in a statement that private companies running prisons are incentivized to focus on increasing the number of people they incarcerate, instead of focusing on rehabilitation efforts. “A private, for-profit company that’s traded on Wall Street will inherently be incentivized to maximize profits and minimize costs...They have a duty to shareholders, not to California,” Bonta said. “It’s time we redirect our criminal justice system to value and prioritize effective prison rehabilitation programs, which will help minimize recidivism rates.”

Brandon Bisell, a spokesperson for CoreCivic, a private corrections company running six facilities in California, said that “attempts to eliminate options” for governments are misguided. “When California’s prison system capacity was at 200% and conditions were so challenging as to be deemed unconstitutional, companies like ours were one of the solutions the state turned to,” he said. “Our sole job has been and continues to be to help the government solve problems in ways it could not do alone.”

California is by no means the only state to turn to private companies when faced with overcrowding. Kentucky encountered a similar dilemma recently. In 2013, the state phased out its contracts with private prisons after rampant sexual assault allegations, but as the opioid epidemic exploded and more people were being convicted of drug charges, the state reopened its contracts with private providers in 2017. 

“This doesn’t represent a change in philosophy,” John Tilley, Kentucky’s secretary of justice said at the time. “This is simply a pragmatic approach to a problem of capacity that we have at the moment.”

Other states and municipalities have had more success keeping private prisons outside their borders. Iowa, Illinois, and Nevada all banned private companies from their correctional systems, along with some local governments like King County, Washington, which includes  Seattle and the surrounding area, and Pima County, Arizona, which houses incarcerated people from Tucson. Legislation to ban private jails has also been introduced in Los Angeles and Denver city councils.

While California’s legislature was considering their bill in recent months, private companies fought hard to prevent its passage. CoreCivic, which gets 12% of its revenue from California, the largest chunk from any single state, together with GeoGroup, another private prison company, spent $130,000 in 2019 lobbying against the bill.

ICE representatives also said that the legislation might not be as effective as lawmakers intended. "Any person under the impression that a state law in any way binds the hands of a federal law enforcement agency which manages a national network of detention facilities would be a false impression,” Bryan Cox, the acting press secretary for ICE, told NBC News. CoreCivic operates an ICE detention center in San Diego through a direct contract with the federal agency, which may mean the state will face legal trouble if they try to kick the group out. 

Others in the state have worried that closing private facilities could lead to move overcrowding, pushing the state further away from its capacity goal. But John Dacey, executive director of the advocacy group Abolish Private Prisons, said that fears about overcrowding are a distraction. “We should be asking the question, ‘Why do private prisons exist at all?’” he said. “Their profitability depends on full, constant and growing occupancy.”

“There will always be short term reasons to delay closing them, but we need to think about long-term solutions,” he said. “We have an addiction to incarceration in this country, and that’s a product of changes in policy, not changes in crime. We can change policy again.”