Two basic issues arise from such hypothetical legislation, aside from the realities of the Arizona Legislature ever passing such a law:

First, the prohibition of Arizona’s use of private prisons inside and outside of Arizona. Currently, Arizona state law permits use of private prisons in-state and out-of-state. See, A.R.S. Section 41-1609.B. That law would have to be changed by the Arizona Legislature or a voter initiative.

Second, a prohibition of private prisons in Arizona that incarcerate people from other states and federal agencies.

This article addresses the federal usage of private prisons in Arizona.

There are twelve private prisons in Arizona. Five or six of them contract with the Arizona Department of Corrections, Rehabilitation & Reentry (ADCRR) to take people into the custody from the Department following convictions of crime and sentencing by the Arizona Superior Courts. The City of Mesa also contracts with a private prison corporation for jail detention of pretrial detainees.

Another five or six private prisons located in Arizona take prisoners from other states and federal agencies. Those other states have changed over many years and presently include Idaho, Hawaii and Montana. Private prisons in Arizona also take pretrial detainees from the U.S. Marshal Service and immigration detainees from Immigration and Customs Enforcement (ICE).

A number of states have never used private prisons. Some have enacted laws that prohibit the state from contracting with private prisons. Others ban the very presence of private prisons within the state. Such legislation varies from one state to another, from absolute bans of the industry to bans with limited exceptions such as California’s AB 32, which allows limited contracts with private prisons, such as to comply with court orders to alleviate over-crowding in public prisons. The New Mexico Legislature is now considering Senate Bill 145 that would ban private incarceration and private immigration detention in the state.

The Arizona Legislature plainly could prohibit the authority of ADCRR and that of local governments to use private prisons. But could the Legislature exercise its police powers in such a way as to forbid the private prison industry’s very presence in Arizona? And to forbid industry contracts with other states and federal agencies to incarcerate people in Arizona?

The federal government and the private prison industry have challenged the laws of California, Washington State and New Jersey that ban the very presence of the industry. These laws go so far as to ban private prisons that contract with ICE, the Federal Bureau of Prisons and the US Marshal Service. Despite these laws, private prisons still exist in those states under federal contracts. The challenges to the state laws are in federal courts. So far, the federal government and the private prison corporations are winning before the courts.

The private prisons argue in court that states may not interfere with their federal contracts. The federal government, through the U.S. Department of Justice (DOJ), argues that federal law and contracts trump state laws and that, beyond the issue of private prisons, states cannot be allowed to interfere with federal governance. Paraphrasing, the federal position is based on the Supremacy Clause of the U.S. Constitution that provides that the Constitution and federal laws are the supreme law of the land and override contrary state laws.

In the challenge to California’s legislation, AB 32, the U.S. 9th Circuit Court of Appeals agreed with the DOJ in its 2022 decision, USA and GEO Group v. Gavin Newsom, deciding that California’s ban of private prisons unlawfully interfered with ICE’s contracts with GEO Group for immigration detention. Almost all immigrant detainees in California are placed in private prisons. The decision impacts not just California’s legislation but also the State of Washington’s ban of private prisons because Washington is also part of the 9th Circuit. So is Arizona.

Pending now before the U.S. 3rd Circuit Court of Appeals is New Jersey’s appeal from a trial court ruling that disallowed New Jersey’s ban of federal-contracted private prisons within the state.

These rulings are not surprising when one considers the broader issues presented by state laws that would restrict federal governance (e.g., national defense). To be certain, these cases do not present the issue of whether prison privatization is permitted in the first instance, which is the issue we are litigating now before the 9th Circuit in Nielsen et al v. Thornell.

An Arizona state law banning the industry would be very beneficial but it would have limited use with federal agencies. It would take an act of Congress to ban the industry at the federal level. Given the current state of national politics, a separate lawsuit against the federal agencies will be necessary.