Limiting Deterrence: Judicial Resistance to Detention of Asylum-Seekers in Israel and the United States

22 Pages Posted: 23 Aug 2015

See all articles by Michael Kagan

Michael Kagan

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: 2015

Abstract

Governments have advanced the argument that asylum-­seekers may be detained in order to deter other would-­be asylum­-seekers from coming. But in recent litigation in the United States and Israel, this justification for mass detention met with significant resistance from courts. This Essay looks at the way the American and Israeli courts dealt with the proposed deterrence rationale for asylum-­seeker detention. It suggests that general deterrence raises three sequential questions: 1. Is deterrence ever legitimate as a stand alone justification for depriving people of liberty? 2. If deterrence is sometimes legitimate, is it valid as a general matter in migration control, or is it limited to certain exceptional circumstances? 3. If deterrence is a legitimate goal, is there any effective proportionality limit on the measures a government may take against asylum­-seekers?

The American and Israeli courts did not answer these questions in the same way, and they did not foreclose all potential future uses of deterrence by their respective governments. But they signaled considerable judicial resistance, which may make it more difficult for governments to justify mass detention in the future.

Keywords: immigration, refugee, asylum, mass detention, deterrence

Suggested Citation

Kagan, Michael, Limiting Deterrence: Judicial Resistance to Detention of Asylum-Seekers in Israel and the United States (2015). Texas International Law Journal, Vol. 51, Forthcoming; UNLV William S. Boyd School of Law Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=2649179

Michael Kagan (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
36
Abstract Views
305
PlumX Metrics