Prison operator waited too long to sue over law barring ICE contracts, state attorneys argue

A bid by a private prison operator to get New Jersey to stop enforcing a law that bans immigrant detention contracts should be rejected by a judge because it waited too long to sue, the Attorney General’s Office argues in a new court filing.

CoreCivic’s motion for a preliminary injunction to stop enforcement of the law came nearly two years after Gov. Phil Murphy signed the legislation and it went into effect, Deputy Attorney General David Chen notes in the state’s motion opposing a preliminary injunction, filed Wednesday in federal court. 

“New Jersey’s law has been in effect for years; other facilities have since ceased providing immigration detention services and their detainees were transferred or released successfully; and nothing stopped the challengers from suing when the act took effect in 2021, without this self-created emergency,” Chen wrote.

CoreCivic, which runs the last remaining immigrant detention facility in New Jersey, is suing Murphy and the Attorney General’s Office over the law, which bars the company from renewing its contract with U.S. Immigration and Customs Enforcement to detain immigrants in its Elizabeth jail.

In a filing earlier this month, the U.S. Department of Justice sided with CoreCivic, saying the law will have a “catastrophic” impact on immigration and national security if it forces the Elizabeth jail to close. 

But the state’s new motion says there is no basis for “the parade of horribles the United States claims will occur.”

CoreCivic’s current contract with ICE to hold migrant detainees in the Elizabeth Detention Center expires Aug. 31.

The company and the U.S. Department of Justice argue that the state law violates the U.S. Constitution’s supremacy clause, which bars states from overriding federal statutes. New Jersey attorneys dispute that argument, saying in Wednesday’s filing that no federal law requires a state to make private detention facilities available, or gives private companies the right to detain people.

The intent of the 2021 law is to end abusive detention practices and protect the health and safety of those detained in New Jersey, he wrote, citing prior cases that say health and safety issues traditionally fall under state regulation.

In recent years, numerous governments like New Jersey’s have determined “private incarceration is inconsistent” with that responsibility, Chen said. He also pointed to a host of violations in CoreCivic facilities in other states ranging from verbal abuse to prolonged solitary confinement.

As recently as 2018, he said, a human rights group reported worms in showers, maggot-ridden food, insufficient medical care, and retaliatory solitary confinement at the Elizabeth facility.  

“For decades, New Jersey has recognized the harms inherent in private, for-profit businesses providing detention services, and the state has long prohibited their use for criminal corrections,” Chen wrote.

Nothing is stopping the federal government from building its own detention centers, which is still allowed under the state law and in line with what federal statutes require, Chen noted. The state law only regulates state, local, and private contractors.

The Elizabeth facility can hold about 300 detainees, but in recent years, the federal government has only used half that capacity, with an average daily population of 156 so far this year, according to ICE.

Chen noted that there are six locations in Pennsylvania and New York that hold contracts with ICE. The Biden administration has called the Elizabeth facility “mission critical” because of its proximity to Newark and JFK airports. It says the closure of the center would result in more transportation and overtime costs and could potentially lead to the release of “dangerous noncitizens.”

Three other facilities that once held up to five times as many detainees — in Bergen, Hudson, and Essex counties — have transferred people and stopped housing immigrant detainees “without frustrating enforcement of immigration laws,” Chen said.

All parties are expected to be in court later this month to argue their cases to the judge.