Some Thoughts on the Justice of Immigrant Detention

The detention of immigrants around the world is a sordid affair of women, men, and childrenwho often suffer trauma, mental illness, sexual abuse, self-mutilation,cruel and degrading treatment, and death. Hundreds of thousands of migrants are detained around the world, often indefinitely, including over 400,000 in the United States (2011), 30,000 in the UK each year, and almost 20,000 in in Australia (2011-12). (For an inside look at the Australian detention system, I recommend At Work Inside Our Detention Centers: A Guard’s Story). The public is largely uninformed about the ubiquity of immigrant detention and the conditions under which they are held.
From an ethical perspective, what are the reasons a government can give that would justify imprison people? One justification for prison fall under retributive justice: prison is punishment to make people suffer for their crimes. This is an inappropriate way of understanding immigrant detention. As I mentioned in a previous blog post, many countries that imprison immigrants, including the United States, do not treat illegal entry as a criminal offense and do not usually use prison as a punishment. (In the case of people being deported because of a criminal record, detention in the immigration system is additional to any sentence they have served for their crime.)
More to the point, the idea of treating the immigration imprisonment as punishment is often absurd. Many detained immigrants have not attempted to enter illegally or broken any law. They have arrived at the border and asked for asylum – something they may be entitled to under national and international law to asylum.
The official justification for imprisoning immigrants is not punishment. Rather, it is usually defended as a measure to deter other immigrants from coming or to ensure that immigrants are present for their case to be heard in immigration court.
The defense of immigrant detention based on deterrence is that people seeking to migrate will learn that they will be imprisoned upon arrival and will decide not to come. It is not convincing. First, using detention to deter refugees from seeking asylum is deeply problematic. It effectively robs people of their right to seek safety under national law. Second, deterrence is not in itself a good reason to punish people. Rather, it is a side effect on third parties who are aware of how others have been punished. People should only be punished if they deserve punishment.
What about the justification that immigrants who are not detained will disappear into the community and never appear in court? One problem with this justification is that it seems to be the case that most people do appear in immigration court. Also, proportionality comes into play: are concerns that people will remain in the country without authorization sufficiently strong to justify the harm of imprisoning people (many who have and will continue to abide by the law – including immigration law)? Finally, there are well-established alternatives to immigrant (see hereand here) detention based on the presumption that detention should only be used in exceptional circumstances.
Immigration detention also serves some more dubious purposes. Migrants are often detained as an incentive to convince people to withdraw their case to have their status regularized. The logic is that this will separate economic immigrants from refugees – the former, knowing they can return home safely, will renounce their claim to residence. We should be clear what this implies: our governments are willing to imprison traumatized people who may have suffered torture, rape, the murder of family members and other atrocities to test whether they are “genuine” refugees.
Immigration detention also has a symbolic function, signaling to the lowest common denominator among the electorate that the government controls its borders. The purpose is to bolster support for the parties in power, often by appealing to the far right. Imprisoning people to make a symbolic point is not something a society committed to justice can tolerate.
Dostoevsky wrote in The House of the Dead (1862) that “The degree of civilization in a society can be judged by entering its prisons.” We can amend Dostoevsky’s quote by adding that the reasons a society gives to imprison people reveals much about its justice and humanity. Our choice to imprison people seeking a better life or fleeing war or persecution speaks poorly about our degree of civilization.

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