First, on Thursday, May 11, John and Robert met with members of Governor Hobbs’ staff to discuss how Arizona could move away from the continued use of private prisons. The meeting followed our letter to Governor Hobbs of March 7th on behalf of 26 organizations. The meeting was productive, lasting about an hour and it ended with an agreement to follow up with further information. It was also good timing. In January, Governor Hobbs issued an executive order that created an independent prison oversight commission. The commission is expected to issue its initial report in November. We asked the Governor’s office to include the subject of Arizona’s prison privatization as part of the commission’s report.
Second, John argued our appeal in Nielsen v. Shinn before the U.S. 9th Circuit Court of Appeals on May 15th at the federal courthouse in Phoenix. In that lawsuit APP represents the Arizona State Conference of the NAACP and individuals who have been incarcerated in private prisons by the Arizona Department of Corrections. This was the culmination of lots of effort, both internally to APP and externally with our legal team. We want to specifically call out Minnesota attorney Lousene Hoppe from Fredrikson & Byron — not only was she instrumental to prepping John for argument, but she also flew from Minneapolis to Phoenix to support the effort. Thanks so much, Lousene! If you want to watch the argument, click here or check out the link below.
During the argument the Court was particularly concerned with two topics: the plaintiffs’ continued standing and the link between privatization and lengthened sentences. Watch the video for more details, but we thought it was worth a quick summary.
Standing is a legal concept that concerns a litigant’s right to participate in a lawsuit — in short, there must be a real, live controversy between the parties (the plaintiff must have suffered an injury and the defendant must have allegedly caused that injury). In our case, the original individual plaintiffs have been released from custody. The three judge panel — and Judge Collins specifically — asked some incisive questions about whether their release means they were no longer proper plaintiffs — John correctly pointed out that the 9th Circuit allows plaintiffs in some instances to remain participants when they represent a potential class of people in similar situations.
Additionally, the panel — and Judge Nguyen specifically — seemed to be particularly interested in the relationship between private prisons and increased sentence length. John relied largely on the fact that at this early stage of the case, our allegations must be taken as true — and we specifically explained how private prison guards write more incident reports and public officials cannot or will not adequately oversee those reports.
On appeal we have asked the 9th Circuit Court to reverse the U.S. District Court’s dismissal of the lawsuit and remand the case to the District Court for further proceedings. We do not know when the 9th Circuit will issue its ruling. Our best guess is that it will be sometime this summer. In the meanwhile we will continue our work with people incarcerated in private prisons by other states.
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Link to John’s Argument:
Letter to Governor Hobbs: