It's Just Like Prison: Is a Civil (Nonpunitive) System of Immigration Detention Theoretically Possible?

Abstract

This Article questions a fundamental premise on which the U.S. immigration detention system is build: Is a civil — that is, nonpunitive — system of immigration detention even possible? The Supreme Court has never questioned this assumption. Most scholars who critique the state of immigration confinement in this country assume the possibility of a civil detention system but argue the modern system is too much like punishment to be civil in nature. And that is true: One of us has experienced both punitive incarceration and so-called civil immigration detention and is left with the conclusion there is little meaningful difference between the two. Immigration detention is just like prison. But in an era when the scope of immigration confinement is expanding rapidly — with tens of thousands of people in the custody of federal immigration-enforcement agencies each day — which question should we be asking ourselves: How do we make civil detention civil? Or is civil detention just a fallacy?

Keywords: immigration, detention, prison, civil