Preventive Detention Distorted: Why It Is Unconstitutional to Detain Immigrants Without Procedural Protections

There are two main problems with the current immigration detention system: the conditions of confinement and the procedural mechanisms that are used to detain noncitizens. The current conditions of confinement cast serious doubt on the constitutionality of the detention system. Although it is purportedly civil, immigration detention is very much a punitive institution. Moreover, there is no binding regulation governing the operation of detention facilities or the conduct of detention staff. The problems that stem from this lack of regulatory oversight are compounded by the fact that many detention centers are run as for-profit businesses. More fundamentally, noncitizens are detained without the procedural protections that inhere in all other preventive detention contexts. Because there is no principled justification for this aberration, the constitutionality of the detention system is, at best, highly suspect. At a minimum, immigrants should receive pre-detention hearings to determine whether their detention is in the government’s interest, and there should be time constraints imposed on pre-removal order detention