110 Colum. L. Rev. Sidebar 42 (2010)
Rethinking Immigration Detention

handle is hein.journals/sidbarc110 and id is 42 raw text is: COLUMBIA LAW REVIEW
VOL. 110                      JULY 21, 2010                 PAGES 42-58
Anil Kalhan *
In recent years, scholars have drawn attention to the myriad ways in
which the lines between criminal enforcement and innigration control
have blurred in law and public discourse.' This Essay analyzes this
convergence in the context of immigration detention. For decades,
observers have analyzed a wide range of detention-related concerns,
including mandatory custody, coercion and other due process
violations, inadequate access to counsel5 prolonged and indefinite
custody,' inadequate conditions of confinement,' and violations of
* Associate Professor of Law, Drexel University Earle Mack School of Law. Thanks to
Chris Nugent, Alison Parker, Judy Rabinovitz, Jayashri Srikantiah, and Juliet Stumpf for
helpful exchanges and comments on earlier drafts.
1. See, e.g., Brookings Inst. & Univ. of S. Cal. Annenberg Sch. for Commc'n,
Democracy in the Age of New Media: A Report on the Media and the Immigration
Debate 12, 23-27 (2008) (analyzing and concluding media coverage of immigration since
1980 has focused overwhelmingly on criminality and other forms of illegality); Jennifer
Chac6n, Managing Migration Through Crime, 109 Colum. L. Rev. Sidebar 135, 135-36
(2009) (discussing scholarship on convergence of criminal justice and immigration
control regimes); Stephen H. Legomsky, The New Path of Immigration Law: Asymmetric
Incorporation of Criminal Justice Norms, 64 Wash. & Lee L. Rev. 469, 469, 472, 500-10
(2007) [hereinafter Legonsky, New Path] (arguing immigration law has absorb[ed] the
theories, methods, perceptions, and priorities of criminal law enforcement); Juliet
Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 Am. U.
L. Rev. 367, 376 (2006) (arguing line between immigration law and criminal law has
grown indistinct).
2. E.g., Paul W. Schmidt, Detention of Aliens, 24 San Diego L. Rev. 305, 306 (1987).
3. E.g., Donald Kerwin & Charles Wheeler, The Detention Mandates of the 1996
Immigration Act: An Exercise in Overkill, 75 Interpreter Releases 1433, 1433 (1998).
4. E.g., Orantes-Hernandez v. Meese, 685 F. Supp. 1488 (C.D. Cal. 1988), aff'd, 919
F.2d 549 (9th Cir. 1990).
5. E.g., Margaret H. Taylor, Promoting Legal Representation for Detained Aliens:
Litigation and Administrative Reform, 29 Conn. L. Rev. 1647 (1997) [hereinafter Taylor,
6. E.g., Arthur C. Helton, The Legality of Detaining Refugees in the United States, 14
N.Y.U. Rev. L. & Soc. Change 353, 364-65 (1986); Legomsky, New Path, supra note 1, at
7. E.g., Margaret H. Taylor, Detained Aliens Challenging Conditions of Confinement
and the Porous Border of the Plenary Power Doctrine, 22 Hastings Const. L.Q. 1087,
1111-27 (1995) [hereinafter Taylor, Challenging Conditions].


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