Excerpted From Paulina D. Arnold, How Immigration Detention Became Exceptional, 75 Stanford Law Review 261 (February 2023) (553 Footnotes) (Full Document)


PaulinaDArnoldBy most measures, immigration detention is the largest civil confinement system in the United States. It is also unique among American incarceration systems for placing the burden on the person being confined to prove he is neither a flight risk nor dangerous and in providing no automatic hearing before a neutral arbiter to dispute the government's facts. In the immigration world, this exceptionalism is taken for granted. The Supreme Court, in upholding the constitutionality of bail-free immigration detention, has emphasized that immigration detention exceptionalism has a 100-year history--that since the nineteenth century, Congress has had broad latitude to confine noncitizens when enforcing its immigration laws. Immigration activists often describe modern-day mass immigration detention as an unprecedented civil carceral phenomenon when arguing for its speedy abolition. But the idea that immigration detention has always been exceptional has been largely unquestioned.

This Article argues that this historical narrative of immigration detention exceptionalism is wrong--and that getting the history right matters for getting the law right. Over immigration law's almost 150-year history, the law of civil confinement has radically changed. As civil confinement's rationales shifted from paternalism to public safety, its constitutional requirements levelled up. Immigration detention has been isolated from that change, not because of some enduring difference between immigration detention and other forms of confinement, but largely because of historical accident.

To start with, mass civil incarceration is not new. Only the constitutional law that regulates it is. The first prison abolitionist movement--in the 1960s and 1970s--reacted in part to skepticism of the paternalism of a mass civil confinement that had begun in the mid-nineteenth century. In 1961, there were around 800,000 people in psychiatric institutions, an estimated 90% of whom had been involuntarily confined. In 1950, more than 44,000 children were held in juvenile facilities with few to no formal confinement proceedings. For context, although criminal confinement had also reached its highest peak thus far, prisons and jails held only 226,344 people on a given day in 1960.

This overlooked history of mass civil incarceration is also a history of mass immigration detention. It began with a shift to carceral control over immigrant families in the mid-nineteenth century. In eighteenth-century America, states and localities were responsible for their own poor--including orphaned children and people with physical or psychiatric disabilities. Attempts to determine who was responsible for the maintenance of a given pauper created the first immigration system in this country as localities determined from where a pauper came, and often deported him back there. As immigration increased in the nineteenth century, states and localities began confining their poor in almshouses, workhouses, mental asylums, and houses of refuge for children.

People confined in these facilities did not have the benefit of criminal process. Because states formally justified the confinement through paternalistic rationales, these facilities fell outside the constitutional protections of criminal law. Through the parens patriae doctrine--a state's benevolent power and obligation to provide for its citizens--courts largely declined to subject the processes for confinement to workhouses, mental asylums, and juvenile facilities to constitutional scrutiny.

These facilities both overincarcerated immigrants and were often funded by them. For instance, immigrants comprised 88% of the St. Louis City Workhouse's population in 1853, during a decade in which they represented approximately 13% of Missouri's population. In 1846, seven years after it was built, more than half of the people confined in the Boston Lunatic Hospital were foreign-born. And New York City funded its newly built House of Refuge partially out of an $8,000 annual grant from the Hospital and Passenger Fund, collected from a per capita tax on immigrants arriving by ship.

This mass civil incarceration of immigrants motivated the push to federalize immigration law as the states asked the federal government to take responsibility for their immigrant poor. Against this backdrop of mass civil incarceration with very little process, the Supreme Court first approved detention attendant to removal proceedings. The lack of constitutional safeguards in immigration detention at the turn of the twentieth century was common to all forms of civil confinement, not some special characteristic attaching only to immigrant detention.

Civil confinement only increased throughout the early twentieth century, reaching its peak shortly after the time of Japanese American internment. From the 1910s to the 1940s, the states and federal government invented new forms of civil confinement based more on perceived dangerousness, including narcotics farms and institutions for so-called “sexual psychopaths.” These institutions were closer to the criminal legal system, and the government confined people in them based on newly perceived psychological pathologies of addiction and violence. Although Japanese American internment is rightly seen as an anomalous scar in American history and jurisprudence, its race- and ideology-based justification was created against a legal landscape of expansive civil confinement that already existed. This landscape provided few constitutional safeguards, and its rationales tended increasingly toward confining people under supposed pathologies of dangerous behavior. Similarly, the immigration detention cases of the 1950s reviewed instances of confinement justified solely by the perceived dangers of Communist ideology. Showing an increasing discomfort with dangerousness-based confinement outside of the criminal system, the Court largely failed to evaluate the confinement itself in its cases evaluating both Japanese American internment and immigration detention. Instead, it analyzed only the legality of the policies that inevitably resulted in detention.

After the backlash to these cases, the government closed immigration detention facilities for around thirty years starting in 1954. At the same time, the Supreme Court began reevaluating the legality of civil confinement, now largely based on perceived dangerousness, and critiquing the supposedly paternalistic rationales of the nineteenth century. In a series of cases during the 1960s and 1970s, the Court undermined the parens patriae doctrine, instead placing most forms of civil confinement under the police power and subjecting them to constitutional scrutiny. Using the constitutional guarantees of substantive and procedural due process and equal protection, the Court created a new rubric to govern civil confinement. The Court evaluated justifications on which the confinement must be based, the relationship between those justifications and the length of detention, and what burden the government must meet to prove them. I call this new schema-- or the constitutional law that restricts the government's power to civilly confine--civil confinement law.

During the creation of civil confinement law, the constitutionality of immigration detention went largely unexamined because of its prior termination at the policy level. At the end of the twentieth century, when the Court first reexamined immigration detention, it seemed that civil confinement law would govern. But in 2003, the Court abruptly changed course, carving out a new exceptionalism from the civil confinement rubric for immigration detention. The Court has now normalized immigration detention as an exceptionalist carveout from other forms of civil confinement. It has justified this exceptionalism by its timelessness--the idea that immigration detention has always been different, justifying a difference today in the constitutional carceral schemes we apply to detained citizens versus detained noncitizens.

This Article makes two contributions. First, it explains how immigration detention grew out of state projects to regulate the poor through carceral control and was subject to the same constitutional rules as other state civil confinement facilities. Second, it shows how the Court's failure to include immigration detention in its initial constitutional regulation of civil confinement was an accident of history, coinciding with immigration detention's temporary termination. Through unpacking both of these contributions, this Article demonstrates that immigration detention exceptionalism is a modern doctrine rather than a timeless classification.

Part I describes the initial paternalistic justifications for civil confinement, as well as the court-approved summary processes required to confine people. Part II explains the birth of federal immigration detention as, in part, a response to the confinement of immigrants in state civil facilities. Part III describes civil confinement based increasingly on dangerousness in the mid-twentieth century, and traces judicial anxiety about its lack of constitutional regulation through Japanese American internment and McCarthy-era immigration detention. Part IV charts the Supreme Court's construction of a rubric for civil confinement law, as well as the Court's shift from assimilating immigration detention into civil confinement law to carving it out as exceptional. Part V briefly explores the reasons for the Court's switch and examines how lower courts have handled the tension between immigration detention exceptionalism and civil confinement law.

[. . .]

In early experiments with confinement, constitutional law used to tolerate a civil confinement landscape with little process. Courts were unwilling to question the paternalistic justifications put forward by the states for warehousing their poor. As mass civil confinement continued to grow and swept in more explicitly dangerousness-based rationales, alongside a vast expansion of state and federal administrative power, courts eventually became more skeptical of unchecked power to civilly confine. This skepticism has manifested in a civil confinement law jurisprudence that, while allowing for civil confinement, limits the grounds for its justifications, puts the government to an evidentiary burden, and requires a neutral assessment before the government can lock someone away.

The Court's new exceptionalist carveout from this law for immigration detention ignores this progression of constitutional law and history. Modern historians see nineteenth- and early-twentieth-century civil confinement as about “social control” of perceived deviants rather than true benevolence. Immigrants, in many ways, were an original target for social control. The category of “deviant other” morphed from Irish Catholic immigrants to Chinese immigrants to supposedly unreformable or unassimilable categories of “dangerous” people. Through these dangerousness-based forms of civil confinement, the courts saw more clearly the hazards to individual liberty of a constitutionally unregulated confinement scheme alongside the explicitly punitive criminal system and began synthesizing constitutional limits. But it's hardly surprising that when the legal community began to reject mass civil confinement in the second half of the twentieth century and to question the paternalism of its initial justifications, immigration detention was the first domino to fall. Ironically, of course, immigration detention's vanguard position in the public backlash meant that the Court had no cause to address it when reevaluating the constitutional regulation necessary to check other forms of civil confinement.

Through basing immigration detention exceptionalism on history, the Court effectively lifted the nineteenth-century approval of summary process for paternalistic civil confinement selectively into immigration detention, despite a half century of civil confinement law precedent to the contrary. This Article's reevaluation of the history of civil confinement highlights the Court's error. Immigration detention was not uniquely excepted from constitutional scrutiny at the turn of the nineteenth century: all civil confinement was. Only because immigration detention was so exceptionally condemned in the mid-century did it escape constitutional scrutiny in the 1970s. This additional historical context allows us to reject the persistent narrative of immigration detention as enduringly exceptional and instead question why, under modern doctrine, the Court has chosen to carve out immigration detention as different.

Forrester Fellow, Tulane University Law School.