Ever since Washington state banned private prisons, there’s been a lot of back and forth about exactly when the Immigration and Customs Enforcement, or ICE, detention center in Tacoma should shut down.
A new court case in Washington state could determine if the ICE facility must close its doors years before lawmakers expected.
Earlier this year, Washington state Gov. Jay Inslee outlawed private, for-profit prison companies that contract with local, state and federal agencies such as ICE. GEO Group, a private prison company based in Florida, owns and runs the ICE facility in Tacoma. It promptly sued the state after the ban, arguing the new law would force it to shut down its Tacoma facility this fall.
Now GEO Group and Washington state are battling it out in federal court, asking a judge to decide whether a new contract should be honored. GEO Group signed a contract to keep running the prison until 2025. But in court documents, the Washington State Attorney General’s Office argues GEO Group’s new contract isn’t valid because it wasn’t signed in time.
At the time of the legislation’s passage, sponsors of the bill banning private prisons, including Rep. Lillian Ortiz-Self, D-Mukilteo, saw the new law as applying to the Tacoma prison but thought that GEO Group would be allowed to continue operating the facility for a few more years. Washington state’s private prison ban has a provision in place that specifies contracts signed before Jan. 1 would still be honored. GEO Group, however, didn’t extend its contract with ICE until late January, according to the attorney general's office.
“We didn't have all the information as to when the contract was being signed or was signed,” Ortiz-Self said in a recent interview, referring to GEO Group’s contract with ICE for the Tacoma facility. “We had the worst-case scenario, which is we had to wait until 2025 if they had already signed the contract, and there were quite a few people that were under that impression."
The attorney general's office says it wants the court to impose penalties against GEO Group for unlawfully operating the detention center. The office argues GEO Group’s only valid contract actually expired last month, on Sept. 27.
To comply with the law, GEO Group must either immediately shut down the facility or lease the facility to ICE, so that a government entity — not a private prison company — is operating the prison, the attorney general's office said.
In a statement, GEO Group called the state's private prison ban an “unconstitutional attempt to retroactively make unlawful the continuation of operations of an important federal institution.” GEO Group also noted that the company is challenging a similar law in California.
On Tuesday, the U.S. Court of Appeals for the Ninth Circuit overturned a previous court’s decision on the California law. In a 2-1 ruling, the court ruled the private prison ban could not apply to immigration detention centers because states cannot intrude on federal immigration policy.
California’s attorney general issued a statement after the ruling, noting the state planned to continue to fight.
In California, GEO Group had already managed to extend several contracts for private immigration detention centers before the state's private prison ban went into effect.
In January, the Biden administration directed the Department of Justice to phase out the use of private prisons.
But an analysis by the American Civil Liberties Union released this week shows that overall just as many immigrants are being held in private prisons under the Biden administration as under Trump.
Under Trump, 81% of people detained in ICE custody were held in facilities owned or managed by private prison corporations in January 2020. Under Biden, as of September 2021, 79 percent of people detained in ICE custody are held in private detention facilities, the ACLU said.
"I think at the end of the day, we have to think about what is actually happening in these detention facilities, the harm that is causing not only to people who are detained but also to the surrounding communities," said Eunice Cho, an attorney with the ACLU, in an interview.
