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35 Immigr. & Nat'lity L. Rev. 385 (2014)
Immigration Detention as Punishment

handle is hein.journals/inlr35 and id is 399 raw text is: 


      Immigration Detention as Punishment

      C6sar  Cuauht6moc Garca Hernandez


      Courts  and commentators  have  long assumed,  without significant analysis, that
      immigration detention is a form of civil confinement merely because the immigration
      proceedings of which it is part are deemed civil. This Article challenges that deeply
      held assumption. It harnesses the U.S. Supreme Court's instruction that detention's
      civil or penal character turns on legislative intent and, buttressed by theoretical
      understandings  of  punishment,  contends  that  immigration   detention-apart
      from the deportation that often results-itself constitutes penal incarceration. In
      particular, legislation enacted over roughly fifteen years in the 1980s and 1990s
      indicates a palpable desire to wield immigration detention as a tool in fighting the
      nation's burgeoning war on drugs by penalizing and stigmatizing criminal behavior.
      Indeed, the modern   immigration  detention system  has accomplished  the U.S.
      Congress's  punitive goal:  Immigration   detention is  a  severely  unpleasant
      experience and  immigration  detainees are viewed  as dangerous.   In order to
      remain true to the Court's guidance to draw formal boundaries between civil and
      penal  confinement,  the  current  immigration  detention  regime   should  be
      conceptualized as punishment.    This Article contends  that the  constitutional
      limitations imposed by criminal procedure are ill-equipped to address immigration
      detention. Instead, policymakers should learn from the nation's failed experience
      with  mass  penal  incarceration-and  step back  from  immigration   detention's
      punitive origins to create a truly civil immigration detention system.


      C6sar Cuauht6moc  Garcia Hernindez is a Visiting Professor at the University of Denver
      Sturm College of Law, publisher of crlmmigration.com, and an Associate Professor at
      Capital University Law School. This Article benefited from feedback on these ideas
      from Kif Augustine-Adams,  Jennifer Chacdn, Alan Chen, Nora  Demleitner, Ingrid
      Eagly, Nancy Ehrenreich, Ian Farrell, Geoffrey Heeren, David Koelsch, Christopher
      Lasch, Stephen Lee, Nancy Leong, Hiroshi Motomura,  Carolina Nufiez, and Allison
      Tirres. I am especially indebted to Tamikka Pate for her excellent research assistance.

      61 UCLA L REV. 1346 (2014)

Originally  published   in 61 UCLA L. REv. 1346 (2014). Used by pennission.

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