Liberty Lost: Establishing Constitutional Boundaries for Migrant Detention by Denise L. Gilman

Abstract

Immigration detention numbers in the United States have spiraled upwards out of control alongside dramatic increases in governmental authority to deprive migrants of liberty without justification.  We must take a hard look at the behemoth that detention has become. 

While the Supreme Court countenanced immigration detention more than 100 years ago, the Court has also held that physical deprivations of liberty may only be for:  1) criminal sanction after a full criminal proceeding; or 2) civil detention for limited governmental purposes.  In an effort to apply constitutional limits, scholars have debated for decades whether immigration detention should be best understood as civil or should instead be treated as punitive and therefore criminal in nature.  This Article argues that the debate regarding the civil/criminal dichotomy has obscured a fundamental constitutional problem:  immigration detention, as constituted, does not fall within either of the two constitutionally recognized exceptions to liberty.   

This Article breaks from the grip of the debate and concludes that immigration detention is neither civil nor criminal, at least in any accepted sense of these categories.  It is not imposed as a sanction for behavior deemed criminal, after a criminal proceeding.  Nor does it serve the civil purpose of addressing flight risk or danger.  Instead, it functions as spectacle to stigmatize and exclude.   Since detention as configured does not fit within one of the exceptions to liberty, it cannot continue.  If detention is to be used at all, it must be limited to genuine immigration purposes to fit within constitutional boundaries.  Specifically, detention must be limited to the purpose of facilitating actual deportation once removal from the country is certain.  I call this final-order detention.  Since most migrants in detention do not have a final removal decision, the detention system would shrink substantially on this understanding. 

The Article offers measures for enforcing the boundaries of the newly identified constitutional framework and addresses potential concerns.  It concludes by offering comparative law examples demonstrating the viability of the proffered limitations on detention.