Weighing Pain: How the Harm of Immigration Detention Must be Factored in Custody Decisions

Abstract

The United States is currently in the midst of a 'third wave of potential pretrial detention reform'. And while certain reforms are gaining traction in an effort to reduce pretrial criminal detention, efforts to do the same for immigration detention have lagged. Reformers and abolitionists make the case that immigration detention needs to be either restricted or eliminated entirely. Nonetheless, the number of people held in detention for immigration purposes rises year after year. Not only do the numbers of people in immigration detention grow, but the systems in place have grown less concerned with the harsh consequences of detention to the most vulnerable.

By turning a blind eye to detention harms, the immigration custodial system categorically subordinates the fundamental liberty interest against confinement to the government’s ambiguous interest in crime prevention.

Keywords: Detention, deportation, immigration, constitution, harms

JEL Classification: K37