SECTION 1.
(a) In keeping with its obligation to safeguard the humane and just treatment of all individuals located in California, it is the intent of the Legislature that this bill declare the state’s intention to protect the due process rights and access to counsel for all Californians held in immigration detention. The Legislature finds and declares all of the following:(1) There is generally no recognized right to government-appointed counsel in civil immigration proceedings even though deportation can result in imminent harm or death.
(2) A three-year study has shown that 68 percent of detained immigrants in California are unrepresented. Furthermore, the
same data shows that detained immigrants who had counsel succeeded more than five times as often as did their unrepresented counterparts.
(3) Existing law (Chapter 17 of the Statutes of 2017 (Assembly Bill 103)) requires, until July 1, 2027, the Attorney General, or the Attorney General’s designee, to review county, local, or private locked detention facilities in which noncitizens are being housed or detained for purposes of civil immigration proceedings in California, including any county, local, or private locked detention facility in which an accompanied or unaccompanied minor is housed or detained on behalf of, or pursuant to a contract with, the federal Office of Refugee Resettlement or the United States Immigration and Customs Enforcement.
(4) The California Department of Justice’s Review of Immigration Detention in California in 2019 found all of the following:
(A) Detainees face several challenges to obtaining counsel or adequately representing themselves. Not all detention facilities in California offer consistent legal orientation programs, and when detainees are able to contact pro bono counsel numbers provided by facilities, many organizations are unable to take on new clients. Further, many facilities do not facilitate confidential legal phone calls for detainees who have or are seeking counsel or advice. Legal materials provided to detainees are difficult to access, are rarely offered in languages other than English and Spanish, and may be out of date.
(B) Throughout the United States, the Executive Office of Immigration Review (EOIR) manages the Legal Orientation Program (LOP) through a contract with the Vera Institute of Justice. Through LOP, legal services organizations provide comprehensive explanations about immigration court
and basic legal information to large groups of detained individuals. The program normally includes a group presentation, individual orientations where unrepresented individuals can briefly discuss their cases with LOP providers, self-help workshops, and referrals to pro bono legal services. In California, formal LOP is only provided at Adelanto and Otay Mesa, and some of the remaining facilities allow informal legal consultation visits from legal service providers.
(C) Having legal counsel makes a significant difference. A 2016 study by the American Immigration Council found that “immigrants with legal counsel were more likely to be released from detention,” and have a much greater chance of prevailing in their immigration proceedings. Specifically, between 2007 and 2012, 21 percent of immigration detainees who were represented by counsel had successful case outcomes compared with only 2 percent of those without counsel.
(5) According to federal government data, California is among the top five states in the nation with the largest number of people in immigration detention per day. The United States Immigration and Customs Enforcement (ICE) is looking to expand the number of detention beds in California to 7,200.
(6) In Jones v. Blanas (2004) 393 F.3d 918, the United States Ninth Circuit Court of Appeals found, “[l]ike criminal inmates, civil detainees litigate under serious disadvantages. The civilly confined are limited in their ability to interview witnesses and gather evidence, their access to legal materials, their ability to retain counsel, and their ability to monitor the progress of their lawsuit and keep abreast of procedural deadlines. ...[C]ivil detainees, like their criminal counterparts, suffer from more limited ability to investigate their claims, to contact lawyers and to avail
themselves of the judicial process” (internal quotations omitted).
(7) The case of the individual confined awaiting civil commitment proceedings implicates the intersection between two distinct Fourteenth Amendment imperatives. First, “[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish” (Youngberg v. Romeo (1982) 457 U.S. 307, 321-322). Second, when the state detains an individual on a criminal charge, that person, unlike a criminal convict, “may not be punished prior to an adjudication of guilt in accordance with due process of law” (Bell v. Wolfish (1979) 441 U.S. 520, 535; see also Demery v. Arpaio (9th Cir.2004) 378 F.3d 1020, 1029; “[T]he Fourteenth Amendment prohibits all punishment of pretrial detainees...”). As civil detainees retain greater liberty protections than individuals detained under
criminal process (see Youngberg v. Romeo (1982), 457 U.S. at 321-24), and preadjudication detainees retain greater liberty protections than convicted ones (see Bell v. Wolfish (1979), 441 U.S. at 535-36), it follows that an individual detained for civil immigration proceedings is entitled to protections at least as great as those afforded to a civilly committed individual and at least as great as those afforded to an individual accused but not convicted of a crime.
(8) Despite due process rights codified under federal law and the United States Constitution, immigrant detention facilities in California do not follow uniform protocols or standards to ensure access to counsel and courts.
(9) The current expansion of detention facilities in California, sudden shifts with respect to the structure of immigration detention facilities and courts, and ongoing challenges regarding access to
counsel and courts creates an urgent need to establish a comprehensive statewide program to ensure access to counsel and coordinated legal orientation and representation.
(b) It is the intent of the Legislature that any immigration detention facility in the state of California establish basic minimum standards to ensure due process and adequate access to courts and legal counsel as provided for in Sections 1062 to 1070, inclusive, of Title 15 of the California Code of Regulations.
(c) It is the intent of the Legislature to require the State Department of Social Services to establish the Due Process in Detention Program to provide individuals in immigration detention with access to legal orientation resources such as self-help materials, provide legal screenings and referrals to pro bono legal services, support remote legal representation, survey conditions with respect to access
to counsel and conditions of confinement, and to collect and publicly report data from detention facilities on an annual basis.
(d) It is the intent of the Legislature to authorize the department to contract with third parties to assist and participate in legal orientation, case coordination and referral, and representation, and to also authorize the department to contract with a third party that specializes in creating a searchable database with the goal of increasing legal representation.