Making Civil Immigration Detention 'Civil,' and Examining the Emerging U.S. Civil Detention Paradigm

Abstract

In 2009, the Obama Administration began to reform its sprawling immigration detention system by asking the question, “How do we make civil detention civil?” Five years later, after opening an explicitly-named “civil detention center” in Texas to public criticism from both sides, the Administration’s efforts have stalled. But its reforms, even if fully implemented, would still resemble lower-security criminal jails.

This symposium article is the first to comprehensively examine the Administration’s efforts to implement “truly civil” immigration detention, through new standards, improved conditions, and greater oversight. It does so by undertaking the first descriptive comparison of the U.S.’s two largest civil detention systems — immigration detention and sex offender civil commitment — to ascertain the value of the “civil” label of detention reform. It finds the emerging civil detention paradigm to be an incarcerative model presuming round-the-clock confinement but with lower security, as well as increasing, near-criminal procedural protections. Thus, the “civil” label of reform has little meaning, either to the individual’s deprivation of liberty or the expressive message communicated. More meaningful and more “civil” reform would be to implement a system that detains less, not just better. Looking forward, I offer a prescriptive framework for a civil detention system — one that detains far less frequently, for shorter periods, and in non-secure facilities not constituting “detention” as traditionally conceived.

Keywords: immigration, detention, civil detention, civil commitment, criminal law, sex offenders, sexually violent predator commitment, detention conditions, Schriro, corrections, criminal procedure