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Document Type

Article

Publication Date

Winter 2020

Publication Citation

95 Indiana Law Journal 145 (2020)

Abstract

For-profit, civil immigration detention is one of this nation’s fastest growing industries. About two-thirds of the more than 50,000 people in the civil custody of federal immigration authorities find themselves at one point or another in a private, corporate-run prison that contracts with the federal government. Conditions of confinement in many of these facilities are dismal. Detainees have suffered from untreated medical conditions and endured months, in some cases years, of detention in environments that are unsafe and, at times, violent. Some have died. Yet, the spaces are largely unregulated. This Article exposes and examines the absence of a constitutional tort remedy for the people behind the walls of for-profit immigration prisons. Two Supreme Court decisions are relevant: Correctional Services Corporation v. Malesko and Minneci v. Pollard. These cases focus on the availability of constitutional tort remedies against private prison operators and their employees for people incarcerated pursuant to the government’s criminal law authority, not civil immigrationenforcement authority. Yet, on the federal level, the growth of for-profit civil detention is far outpacing that of for-profit criminal incarceration. And the conditions in today’s immigration detention facilities—and the experience of the people in custody—are inherently carceral; there is no meaningful difference between criminal incarceration and civil immigration confinement. This Article asserts that the same values that underpin constitutional jurisprudence regulating criminal incarceration—namely, the constitutional principle of dignity and the inherently governmental function of incarceration, as well as values of transparency and accountability—must allow for a constitutional tort remedy for people whose rights are violated in for-profit immigration prisons. Otherwise, for many thousands of people—the majority of whom are people of color—the Constitution and federal courts are out of reach, leaving some of the most egregious rights violations inflicted on the federal government’s watch unremedied.

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