This weekend Orange County Sheriff, Sandra Hutchens, published an op-ed on the OC Register urging Governor Brown to veto the Dignity Not Detention Act (SB 1289) under the false argument that it is unconstitutional, and a convenient, newfound concern for immigrants’ well-being.
Authored by Senator Ricardo Lara and co-sponsored by Community Initiatives for Visiting Immigrants in Confinement (CIVIC) and the Immigrant Legal Resource Center, SB 1289 will improve conditions in California’s private and public immigration detention facilities, including the Sheriff’s Theo Lacy Jail and James Musick Facility, by codifying a uniform set of enforceable standards; provide additional protections for LGBTQ immigrants in detention like those in the Santa Ana City Jail; and most importantly, prohibit future and phase out existing contracts between local governments and private prison companies that operate immigration detention centers for a profit.
Not only does SB 1289 pass constitutional scrutiny, but it is one of the most important pro-immigrant pieces of legislation in years, and comes at a key moment in the movement against detention and deportations.
Sheriff Hutchens’ argument relies on the idea of federal pre-emption over immigration law to suggest that California is limited in phasing out contracts between its cities and private detention companies, under SB 1289, citing the Supreme Court’s 2010 ruling against Arizona’s anti-immigrant SB 1070 law as an example.
While it is true that state immigration laws can be subject to field pre-emption by federal law as federal immigration power is viewed broadly, the federal government’s immigration power concerns the determination of who should or should not be permitted into the country. Regulation of immigration detention conditions is outside the scope of the federal government’s immigration power. In fact, Congress has not passed any laws regulating the conditions of immigration detention centers, and SB 1289 expressly incorporates the only federal standards U.S. Immigration & Customs Enforcement has created. Likewise, in prohibiting a California municipality from contracting with a corporation to detain immigrants for profit, SB 1289 does not interfere with the federal government’s power to determine who may enter the country, acquire citizenship, or be deported. It simply ensures that California is not complicit in profit-driven human suffering.
Moving past the technicalities of “is it legal, is it not,” let’s address Sheriff Hutchens’ assertions that immigrant detention will continue unabated, and that ending detention for profit in California will only harm immigrant communities. This argument, though popular among supporters of immigration enforcement policies, has been proven wrong time and time again. Sheriff Hutchens argues that DHS will continue its current detention practices, and that immigrants taken into custody in California will simply be transferred elsewhere. But in making this argument, she ignores two important facts:
1) All major changes to immigration enforcement implemented by DHS have followed local and state action to support undocumented immigrants. When city, county, and state governments made the move to limit or completely stop honoring detainers through policies like California’s TRUST Act, DHS scrapped the Secure Communities program, and in response to the backlash against record deportations, expanded the Deferred Action program—two policies which pro-enforcement advocates called unrealistic until DHS took action.
2) DHS is already reviewing its own contracts with private detention facilities and evaluating whether they should cut their ties to private prison companies. The move comes as a result of growing opposition to the entire practice of immigration detention, including in public facilities like the one in Santa Ana, and a decision by the Justice Department to phase out its contracts with the same private prison companies that operate immigration detention facilities in California.
For California to end private immigration detention will be a powerful move that will increase the momentum and urgency at the federal level to dismantle the inhumane detention system.
Considering the history of our county's Theo Lacy Facility, which is also used for immigration detention, Sheriff Hutchens’ opposition to the Dignity Not Detention Act may stem more from the bill’s other purpose: to put into law an enforceable set of standards to do away with abuse and inhumane conditions inside detention facilities.
With Theo Lacy being labeled as one of the 10 worst immigration detention facilities by the Detention Watch Network in 2012, and exposed by Univision on September 9, 2016, one day before Sheriff Hutchens announced her opposition to SB 1289, for its continued pattern of abuse, we cannot discount the fact that the OC Sheriff has a vested political interest in killing any piece of legislation that promises accountability for their consistent failure, or unwillingness, to care for our immigrant community members in detention.
The Dignity Not Detention Act is legally sound, and urgently needed—Sheriff Hutchens jail is proof of that.
Hairo Cortes is the Program Coordinator of the Orange County Immigrant Youth United, and a Steering Committee member of the California Immigrant Youth Justice Alliance. He is a Political Science student at Cal State Fullerton, and has been a leader in the campaign to end the immigration detention contract between the City of Santa Ana and ICE.
Opinions expressed in editorials belong to the authors and not Voice of OC.
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