ACLU: State elected officials' disregard of ICE jail is unlawful

By refusing to regulate a private immigration jail planned outside Evanston, Wyoming’s five statewide elected officials leave the state vulnerable to litigation and immigrants to poor treatment, the American Civil Liberty Union of Wyoming says.

The ACLU asked the governor, treasurer, superintendent of public instruction, secretary of state and auditor in a Jan. 21 letter to exert their authority over the project. The officials should follow state statute that requires both approval and regulation of for-profit incarceration in Wyoming, the civil rights group wrote.

The ACLU opposes the for-profit prison industry and the proposed immigration jail, but the correspondence does not ask the officials to reject the plan.

Allowing the facility to be constructed without the officials’ approval would be illegal, the ACLU argued. Following the statue allows officials to “retain [their] ability to monitor and protect” any immigrants held in Wyoming, the letter read.

The civil liberties group is challenging a June 2018 opinion of the Wyoming attorney general. In the opinion, then-AG Peter Michael argued that the jail pushed by private prison companies does not fall under state statute requiring the approval of the five officials for private prisons, jails and “facilities.”

By doing so, the AG ignored the “plain language” of the statute, according to the ACLU. The laws “not only apply to the proposed detention facility,” the letter signed by Cheyenne-based ACLU organizer Antonio Serrano read, “but are an invaluable tool to ensure that all detainees held in a private facility are treated with respect and dignity.”

The current AG, and Gov. Mark Gordon’s office, both stood by Michael’s opinion in comments to WyoFile last week.

Though AG opinions are non-binding, elected officials have cited Michael’s view as the reason to leave decisions about the proposed immigration jail up to the Uinta County Commission. That board unanimously supports the jail despite harshly divided sentiment in the county seat, Evanston.

The interpretation of the law as not applying to the proposed detention center has spiked outrage from the idea’s opponents, and the debate reached the Wyoming Legislature in 2018. Gordon cited the opinion in October 2019 when he declined to take a stance on the project despite a “tremendous amount of kickback” he had heard.

“I respect all that has been said about, ‘is this the right thing for Wyoming, is this the right thing for Evanston, is this the way we want our state to be viewed,’” he said at the time. “I do take that quite seriously.” Still, the project was a matter for Uinta County purview, he said.

The ACLU’s letter comes as prison company CoreCivic and the Department of Homeland Security appear to be accelerating the project, which has been discussed in Evanston since June 2017. Officials in Evanston also dismissed the letter, before the Uinta County Commission passed a resolution on Jan. 21 to sell the land needed for the detention center to CoreCivic.

“Does it concern you that the ACLU could sue Uinta County and then you would have to fight the lawsuit and that’d be a cost that’s borne by the county?” a critic asked. The letter does not impede the commission from advancing the project, Uinta County Attorney Loretta Howieson responded.

“That letter certainly is not something that is surprising,” she said. The commission voted to sell 63 acres for $5,000 an acre, which totals $315,000.

County officials have turned a deaf ear to community concerns and sought to stymie public input, ACLU’s Serrano said. “We’ve seen clearly that the county commissioners are doing things without transparency,” he said.

At key moments in the process, like when one private prison company dropped the project into the hands of another, commissioners chose not to inform their constituents. County officials argue they’ve held opportunities for public comment and information sessions.

Uinta County residents opposed to the facility hope to meet with statewide officials and members of the Wyoming Legislature, Serrano said.

The letter suggests that the state and Uinta County are risking lawsuits by acting as if the state statute governing private incarceration does not apply to a for-profit immigration jail. Proceeding without the approval of the state’s five elected officials “would flout the will of the state’s legislature and expose the state and Uinta County to potential time-consuming and costly litigation,” the letter reads.

The letter doesn’t mean the prominent national civil rights organization will sue, Andrew Malone, an ACLU lawyer, said. “It’s a little premature but we’re still weighing the decision,” he said. “We think it’s important to follow the rule of law.

“The ball’s in their court,” he said.

Both Gordon and Bridget Hill, the attorney general he appointed to replace Michael, dismissed the ACLU’s letter. “[Gordon’s] comfortable with the AG’s previous opinion,” the governor’s spokesperson Michael Pearlman said on Friday. “He had a conversation with [Hill] this morning. He remains of the belief that this is a local issue that should be determined in Uinta County.”

Wyoming’s Private Correctional Facilities Act governs any privately run “jail, prison or other incarceration facility.” The statute begins by calling for the approval of the five state elected officials before the state or a local government contracts with a private prison company.

It also regulates guard training requirements and when “use of force” is justifiable. The statute guarantees the public the same rights of access to a private facility as at state-run correctional facilities.

At a December 2019 public meeting, CoreCivic officials said U.S. Immigrations and Customs Enforcement would monitor operations, given the contract would be with the federal officials.

The statute also requires the prison company to maintain an insurance plan to protect both local governments and the state from any lawsuits against the facility. “This insurance requirement is especially important considering the large number of individual and class action civil rights lawsuits that have been filed against privately run immigration detention facilities and the counties in which they are located,” the ACLU letter reads.

Michael, the former AG, opined that the proposed immigration jail — where ICE would hold allegedly undocumented immigrants while they await deportation hearings — did not fall under state purview.

“The immigration detention center is not a private correctional facility subject to the authority of the five state elected officials,” Michaels wrote in the opinion. . “We therefore advise that you take no action in this matter.”

The AG’s opinion does not carry the force of law that a judge’s ruling would, the ACLU letter said.

The letter cited the Wyoming Supreme Court, which ruled against a different attorney general opinion in 2018. That case is familiar to Gordon because he filed the suit when he was the state treasurer. Largely successful, the suit accused other state government branches of ignoring the treasurer’s office authority.

The ACLU argued the Michael opinion removed not just the need for the five officials’ approval, but any ability for the state to apply regulations to a prison within its borders. CoreCivic purchasing the property and contracting with the federal government shouldn’t exempt the company, according to the ACLU. “The Act is clearly meant to apply to any privately operated facility in Wyoming that deprives a person of their freedom,” the letter reads.

Private immigration jails have a long history of violating immigrants’ rights, the ACLU wrote, citing reports by the federal government’s internal watchdog, the Office of the Inspector General. ICE’s oversight of the private facilities they contract with has fallen short, the OIG said. CoreCivic itself has faced lawsuits related to its increasingly lucrative immigration detention business as well as its private prisons for state and federal inmates.

By exempting CoreCivic’s proposed immigration jail from the requirements of state statute, Wyoming “would be powerless to monitor, correct and prevent similar dehumanizing behavior from taking place within Wyoming’s borders,” ACLU argued.

WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy.