IT'S JUST LIKE PRISON: IS A CIVIL (NONPUNITIVE) SYSTEM OF IMMIGRATION DETENTION THEORETICALLY POSSIBLE?

This Essay questions a fundamental premise on which the U.S. civil immigration detention system is built: Is a civil-that is, nonpunitive-system of immigration detention even possible? The Supreme Court has not questioned this assumption. Most scholars who critique the state of immigration confinement in the United States assume the possibility of a civil detention system but argue the modern system is too much like punishment to be civil in nature. And, that contention is true: One of us has experienced both punitive incarceration and so-called civil immigration detention and is left with the conclusion that there is little meaningful difference between the two forms of confinement. Civil immigration detention is just like prison, if not worse. But, in an era when the scope of immigration confinement is expanding rapidly-with tens of thousands of people in the custody of federal immigration-enforcement agencies each day under civil legal powers-which question should we be asking ourselves: How do we make civil detention civil? Or, is civil detention just a fallacy?