Op-Ed: Delaney Hall Is Not Above Law and Legal Argument To Shut It Down
Tim Alexander. Photo courtesy Tim Alexander.
BY TIM ALEXANDER, Esq.
When a United States Senator personally witnesses detained people being served spoiled milk and hears reports that detainees are on a hunger strike due to intolerable conditions, the issue is no longer whether Delaney Hall deserves scrutiny. The issue is whether New Jersey’s public officials will use the legal tools they already have.
They can. And they should.
The first and most immediate option is the criminal process. A privately operated detention facility is not a constitutional dead zone. If there is probable cause to believe that evidence of a New Jersey crime will be found in Delaney Hall, the Essex County Prosecutor or the New Jersey Division of Criminal Justice can seek and execute a search warrant. That is not a political slogan. It is ordinary law enforcement.
New Jersey requires that a warrant application be grounded in concrete facts, not mere suspicion. State v. Macri, 39 N.J. 250, 257 (1963). The New Jersey Supreme Court has also emphasized that probable cause must be demonstrated to a neutral judge with real factual support. State v. Novembrino, 105 N.J. 95, 122-23 (1987). The county prosecutor has a statutory duty to investigate crimes, N.J. Stat. Ann. § 2A:158-5, and the Division of Criminal Justice has statewide authority to investigate and prosecute state offenses. N.J. Stat. Ann. § 52:17B-98.
Given the reports, a warrant would not be speculative. A sworn statement from Senator Kim, together with evidence of a hunger strike and detainee complaints, could support a targeted warrant for kitchen areas, food-storage records, surveillance footage, incident logs, grievance files, medical records reflecting illness, delivery and temperature logs, and internal communications concerning spoiled food or detainee protests.
The law does not require the owner of the premises to be the sole suspect, or even a suspect at all, so long as there is probable cause to believe that evidence is present. Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978). Even commercial property, while protected by the Fourth Amendment, is not immune to a warrant. Marshall v. Barlow’s, Inc., 436 U.S. 307, 311-12 (1978).
That matters because some officials act as though Delaney Hall is untouchable. It is not. If people are mistreated, food is unsafe, records are falsified, complaints are buried, or medical needs are ignored, prosecutors do not need permission to look away. They need a properly supported affidavit.
The second option is prosecution. If a lawful search uncovers evidence of assaultive conduct, reckless endangerment, falsified records, obstruction, or other criminal violations, prosecutors should file the appropriate charges and litigate them in open court. No private prison contractor should receive de facto immunity that would not be extended to a school cafeteria, a nursing home, a hospital vendor, or an ordinary employer. The rule of law does not stop at the jailhouse gate merely because a private company profits behind it.
The third option is sustained regulatory and political pressure. A search warrant is not a substitute for oversight. It is a tool for securing evidence. Once that evidence exists, state and local officials can use every lawful enforcement mechanism available to them, including criminal prosecution, contract review, health and safety enforcement, and legislative action. They cannot honestly claim their hands are tied. They are not.
There is also a broader question: what should Newark and New Jersey do if Delaney Hall is not merely mismanaged but fundamentally incompatible with the public interest?
The answer may be to end this use permanently.
New Jersey’s Constitution permits the taking of private property for public use, with just compensation. N.J. Const. art. I, ¶ 20. A public park or playground is among the clearest public uses recognized by law. Newark has express statutory authority to acquire land for parks and playgrounds, including through condemnation. N.J. Stat. Ann. § 40:12-4. If the city chose to replace Delaney Hall with open space, recreation, and public access, it would be on firmer legal ground than the speculative redevelopment theories courts have criticized in other contexts. See County of Essex v. Hindenlang, 35 N.J. Super. 479, 487-88 (App. Div. 1955); Gallenthin Realty Dev., Inc. v. Borough of Paulsboro, 191 N.J. 344, 365-68 (2007).
Any condemnation would still have to comply with the Eminent Domain Act, including bona fide negotiations and just compensation. N.J. Stat. Ann. § 20:3-6. However, the property’s current use as a private prison does not place it beyond the reach of eminent domain.
That is also where federal eminent-domain doctrine matters. U.S. Government property is not categorically immune from condemnation in every case; the answer depends on who is condemning, what statutory authority exists, and whether the taking would interfere with a federal purpose.
Federal property is often protected against state and local condemnation under the Supremacy Clause, but Congress can authorize the condemnation of federal property, and the outcome turns on the specific statutory scheme. United States v. Carmack, 329 U.S. 230, 235-43 (1946). In other words, eminent-domain questions are not answered by slogans. They are answered by the text of the governing statute, the identity of the condemning authority, and the effect on federal use.
That matters because we should stop treating Delaney Hall as though the only options are passive outrage or endless deference. The law offers a spectrum of responses. At the front end, prosecutors can investigate and, if warranted, conduct searches. In the middle, the State can prosecute provable crimes and compel disclosure of what happened behind the walls.
At the back end, if policymakers conclude that this facility should never again be used to warehouse vulnerable people under abusive conditions, the City has a lawful path to reclaim the land for a public use.
A park is not merely a rhetorical contrast to a prison. It is the legal opposite of secrecy. One confines. The other opens. One concentrates suffering out of public view. The other returns land to public life.
The people held at Delaney Hall remain people. Their confinement does not erase their humanity, nor does it suspend New Jersey law. If a Senator’s eyewitness account of rancid milk served to hungry detainees fails to prompt urgent legal action, the failure will not be in our statutes. It will be in our will.
New Jersey does not need to invent a remedy for Delaney Hall. It needs to use the remedies it already has at its disposal.
EDITOR’S NOTE: Tim Alexander, Esq. is a civil rights attorney, activist, and Democratic candidate for Congress in New Jersey’s Second District.
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