Time again and again, it’s said that immigration detention is a species of civil confinement. It is not criminal. As a legal matter, that has certainly been the operating assumption since 1896 when the United States Supreme Court explained, “We think it clear that detention or temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens, would be valid.” The Court relied on this statement as recently as 2003 when it declared that “detention during deportation proceedings [i]s a constitutionally valid aspect of the deportation process.”
Recent developments suggest that the rationale underlying the legal conclusion that immigration detention isn’t punitive might be ripe for attack. Secretary of Homeland Security John Kelly recently said he is considering taking children away from their parents “to deter” people from heading to the United States without the federal government’s permission. The same week, the DHS Inspector General reported that a county jail in California under contract with ICE to house immigration detainees uses “disciplinary segregation…as punishment for violations of facility rules.” Often described as solitary confinement, “disciplinary segregation at [the Orange County, California facility] means a person is isolated for 24 hours a day in a cell with no access to visitors, recreation, or group religious services.”
Whether immigration detention is characterized as civil or criminal is enormously important. As I wrote in my book Crimmigration Law (p. 94),
Confinement that arises from criminal proceedings is subject to a host of constitutional and statutory limitations that do not apply to civil detention. The Fourth Amendment’s exclusionary rule, for example, a device intended to incentivize police compliance with constitutional safeguards, is unavailable in removal proceedings except for egregious or widespread constitutional violations, thus raising the likelihood that someone will be penalized through use of evidence obtained in violation of the Fourth Amendment. Likewise, the Fifth Amendment’s Double Jeopardy Clause prohibits multiple punishments for the same offense, but because immigration detention is not deemed punitive the Clause is irrelevant. The Sixth Amendment’s right to counsel also does not apply to individuals facing the possibility of losing their liberty at the hands of immigration officials.
Secretary Kelly’s comments and the Inspector General’s findings about the Orange County jail’s solitary confinement practice significantly undercut continued claims that ICE immigration detention isn’t a form of criminal incarceration. Deterrence, the very goal that Secretary Kelly identified, is an accepted reason for confining people who are convicted of crimes. In Kansas v. Hendricks, the Supreme Court identified the “two primary objectives of criminal punishment [as] retribution or deterrence.”
In contrast, courts have always rejected deterrence as a justification for civil confinement. Indeed, courts have often distinguished criminal from civil confinement by pointing to the presence or absence of a deterrent goal. In Hendricks, the Supreme Court concluded that confinement of people deemed “sexually violent predators” was civil rather than criminal precisely because the law authorizing their commitment was not intended to promote deterrence or retribution.
To be sure, Secretary Kelly’s comments are not the first time in recent memory that DHS has embraced a strategy of deterrence-through-detention. In July 2014, Secretary of Homeland Security Jeh Johnson justified the Obama Administration’s policy of locking up entire families of migrants who arrived in the United States without authorization by explaining that it was part of the Administration’s “aggressive deterrence strategy focused on the removal and repatriation of recent border crossers.” A DHS press release in September 2014 added that family immigration imprisonment was necessary, in its view, to “deter others from taking the dangerous journey and illegally crossing into the United States.” Justice Department lawyers made similar claims in immigration court.
Eventually a federal court brought the Obama Administration’s deterrence-through-detention strategy to a halt. As I wrote in Immigration Imprisonment’s Failures,
In particular, the court noted that the government’s deterrence rationale is of a wholly different “nature” than the accepted flight risk and dangerousness justifications [used in immigration law]. Those factors, the court explained, allow detention “on the basis of those aliens’ risk of flight or danger to the community.” In contrast, the deterrence argument “maintains that one particular individual may be civilly detained for the sake of sending a message of deterrence to other Central American individuals who may be considering immigration.” That, the court concluded, is likely to violate the Fifth Amendment’s Due Process Clause, thus it issued a preliminary injunction against DHS.
The legal problems with a deterrence-through-detention strategy haven’t changed.
Similarly, the DHS Inspector General’s finding that ICE’s contractor is using solitary confinement to punish people who are waiting to learn whether they will be allowed to remain in the United States falls squarely within the retributive goal that is deemed permissible for criminal confinement. Hendricks leaves no doubt about this. The idea of retribution is to “make the punishment fit the crime,” as the cliché puts it, or, in the words of criminal law scholar Arnold Loewy, “reprimand the wrongdoer” for engaging in prohibited conduct. But retribution has never been an accepted rationale for civil immigration detention. Like deterrence, courts have often distinguished criminal from civil confinement depending on the presence or absence of a retributive goal. For example, when Congress enacted a law stripping draft dodgers of their citizenship, the Supreme Court concluded that Congress’s goal was “fundamentally retributive in nature” and thus constituted a form of criminal punishment.
This is not to say that the federal government can’t treat confinement for violations of immigration law as criminal matters. In fact, the government does that daily. In recent years, tens of thousands of people have seen the inside of a federal penitentiary annually after conviction for a federal immigration crime. But to do that, the federal government has to follow the traditional criminal law process that entails a more robust set of limitations on the government’s ability to confine than is permissible under civil law. The people sitting inside ICE immigration detention centers don’t get that process. Secretary Kelly’s recent comments and the Inspector General’s damning report suggest that ICE is punishing migrants by skirting basic principles of the United States legal tradition.