Constitutionally Unaccountable: Privatized Immigration Detention
38 Pages Posted: 9 Apr 2019 Last revised: 23 Mar 2020
Date Written: January 1, 2020
This Article is the first to expose and examine the absence of a constitutional tort remedy for the people behind the walls of for-profit immigration prisons. For-profit immigration detention is one of this nation’s fastest growing industries. More than two-thirds of the roughly 45,000 people in the custody of federal immigration authorities find themselves at one point or another in a private, corporate-run prison that contracts with the federal government. Conditions of confinement in many of these facilities are dismal. Detainees have suffered from untreated medical conditions and endured months, in some cases years, of detention in environments that are unsafe and, at times violent. Some have died. Yet, the spaces are largely unregulated.
A substantial body of law has developed in the United States regarding the constitutional limits of incarceration. The availability of constitutional tort remedies imposes some measure of accountability on prison officials and corrections systems. The constitution affords no tort remedy, however, for people who suffer from untreated serious medical conditions, risks to their safety, and violence while incarcerated in for-profit immigration prisons. Indeed, the spaces are constitutionally unaccountable.
Drawing on previous work showing the conditions in today’s immigration detention facilities—and the experience of the people in custody — are inherently carceral, this Article uses what I call the “civil detention fallacy” to demonstrate that when it comes to conditions of confinement there is no meaningful difference between criminal incarceration and immigration confinement. Therefore, the same values that form the foundation of our constitutional jurisprudence regulating criminal incarceration — namely, dignity, the inherently governmental function of incarceration, and the need for transparency and accountability — must allow for a constitutional tort remedy for people whose rights are violated in for-profit immigration prisons.
Keywords: immigration, prison, detention, privatization, constitution, civil rights, geo group, CoreCivic, ice
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