Immigration Detention as Punishment

Abstract

Courts and commentators have long assumed, without significant analysis, that immigration detention is a form of civil confinement merely because the immigration proceedings of which it is part are deemed civil. This Article challenges that deeply held assumption. It harnesses the Supreme Court’s instruction that detention’s civil or penal character turns on legislative intent and, buttressed by theoretical understandings of punishment, contends that immigration detention — apart from the deportation that often results — itself constitutes penal incarceration. In particular, legislation enacted over roughly fifteen years in the 1980s and 1990s indicates a palpable desire to wield immigration detention as a tool in fighting the nation’s burgeoning war on drugs by sanctioning and stigmatizing criminal behavior. Indeed, the immigration detention system that has developed has accomplished Congress’s punitive goal: immigration detention is experienced as severe and its occupants viewed as dangerous. Remaining true to the Court’s guidance to draw formalist boundaries between civil and penal confinement, immigration detention should be conceptualized as punishment. Rather than subjecting immigration detention to the constitutional limitations imposed by criminal procedure, this Article contends that, learning from the nation’s failed experience with mass penal incarceration, policymakers should step back from immigration detention’s punitive origins and create a truly civil immigration detention system.

Keywords: immigration, detention, imprisonment, punishment, crimmigration