Immigration E-Carceration: A Faustian Bargain

Abstract

Immigration detainees and their advocates have a Faustian Bargain: they may trade the physical walls of jail for the virtual walls of electronic monitoring. But they are merely begging for a different form of punishment and control, since electronic monitoring imposes pain, shame, arbitrary rules, and limitation of freedom on persons, causing many to experience it as punitive. Its use also facilitates replacing a regime of over-detention with one of over-supervision, and becomes the means by which immigration enforcement authorities surveil immigrant communities. The Supreme Court’s immigration detention doctrine has set up this bargain by succumbing to the plenary power’s defenders. Instead of outright freedom, the Court has offered release under restrictive supervision policies utilized by the immigration authorities. Supervision through electronic monitoring has come to reside doctrinally in the middle ground between absolute freedom and incarceration. Yet as we have learned from electronic monitoring’s use in the criminal justice system, this “middle ground” ceded too much ground. This article explains, for the first time, how the Court’s immigration detention doctrine and perverse pull of the plenary power has carved out a doctrinal space where electronic monitoring now resides.