State plan to house inmates out of state is called unconstitutional

SACRAMENTO — Lawyers for the state Legislature said Thursday that government contracts set to ship hundreds of inmates to four private prisons outside California beginning next month were unconstitutional.

The opinion by the Legislative Counsel, a nonpartisan legal office that provides policy advice to lawmakers, casts a legal shadow over Gov. Arnold Schwarzenegger’s plan to relieve the prison crowding crisis by housing some inmates out of state in lockups run by private firms.

The opinion said that, with certain exceptions, the state may not contract out services that have traditionally been performed by public employees.

But corrections spokesman Oscar Hidalgo defended the contracts, saying that “obviously we looked at all the legal implications -- including constitutionality -- before moving forward with this.”

One legislator, Sen. Gloria Romero (D-Los Angeles), who is the chairwoman of a committee on the correctional system, was not convinced. She said the governor should cancel the contracts immediately and “solve our prison crisis within our own state borders.”

And the president of the prison guards union, which has long opposed the use of for-profit facilities to house convicts, said the legal finding might prompt his organization to sue the state.

“Sounds good to me,” Mike Jimenez of the California Correctional Peace Officers Assn. said of the opinion. Shipping prisoners out of state is a “Band-Aid on a jugular wound,” he said, and “we definitely don’t support it.”

Last week, officials at the Department of Corrections and Rehabilitation signed two agreements, totaling $153 million, to incarcerate 2,260 inmates at privately run prisons in Indiana, Oklahoma, Tennessee and Arizona. The contracts are with GEO Group Inc. of Florida and Correctional Corp. of America, headquartered in Tennessee.

Though the initial batch of inmates are volunteers, authorities said, officials may pursue forcible transfers if necessary to free up space in California’s jam-packed penal system, which houses about 173,000 men and women.

The moves, which were set to begin within the next few weeks, follow Schwarzenegger’s declaration earlier this month of a state of emergency in 29 of the state’s 33 adult prisons, most of which are stuffed to twice their intended capacity.

The governor said he was taking the extraordinary step because the crowding had created a health risk and “extreme peril” for officers and inmates, overwhelming water, sewer and electrical systems, and fueling hundreds of riots and smaller disturbances in the last year.

Officials said that without immediate action, they would run out of prison beds next summer.

After the governor’s proclamation, Romero asked legislative lawyers to study whether such contracting with private prisons was legal. In a seven-page opinion, the Legislative Counsel said contracting out-of- state services had generally been found to violate the California Constitution unless those services “cannot be adequately, satisfactorily or competently” performed by civil servants.

Romero said she believed that the opinion also covered existing, long-running contracts with private companies that operate seven facilities that house 2,837 inmates in California,

But Mark Nobili of Cornell Companies, one of those firms, said he doubted that the opinion would lead to any interruption in business.

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jenifer.warren@latimes.com