Federal Courts, Private Prisons, and Potential Conflict

A recent federal court case could have significant implications for legislatures seeking to limit or eliminate private detention centers across the country, including in Maryland. In The Geo Group, Inc. v. Newsom, the U.S. Court of Appeals for the 9th Circuit reversed a lower court’s injunction preventing a private prison company from operating in California based on a state law, AB 32, that phases “out all private detention facilities within the state.”

The Court justified its decision based on the U.S. Constitution’s Supremacy Clause, under which a state cannot regulate in a field reserved exclusively for the federal government. In this particular case, California limited the United States Department of Homeland Security’s ability to contract with private prison operators to detain immigrants, a function reserved exclusively for the federal government.

The 9th Circuit decision, which does not bind Maryland, could hinder efforts by the Maryland General Assembly to curb the use of private detention facilities. In 2021, the General Assembly passed the Dignity Not Detention Act (HB 16), which would have prevented the state and local governments from contracting with said facilities. HB 16 was vetoed by Governor Larry Hogan, but a similar bill could be reintroduced in 2022. MACo had opposed HB 16’s Senate cross-filed bill (SB 478) on preemption grounds, stating, “MACo believes locally elected officials are in the best position to respond to their community needs and are directly accountable to the communities they serve.”

Both AB 32 and HB 16 contain similar provisions with respect to contracting with private detention facilities, but HB 16 relates more specifically to “immigration detention facilities.” This distinction could mean that, should a bill similar to HB 16 pass, it may be even more prone to a challenge in the U.S. Court of Appeals for the 4th Circuit, which is likely to entertain the 9th Circuit’s reasoning in its decision.

Read the full 9th Circuit decision.

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