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To reduce the incidence of abuse by government officials, the U.S. Constitution imposes significant procedural obstacles to imprisonment. If immigration detention is to be re-conceptualized as punishment, then it becomes necessary to consider the logical legal outcome: Imposition of punishment would be subject to the constitutional constraints on government action that apply to all criminal prosecutions.
First, penal imprisonment requires individualized findings, whereas immigration law provision have for decades authorized detention based on categorical assessments of dangerousness or flight risk. For criminal imprisonment, confinement before conviction is permissible pending proceedings only if the person has been deemed likely to abscond or further endanger the community. After conviction, penal confinement is permitted as a sanction for having been found by a jury, or, at the defendant's election in nonpetty cases, a judge to have actually engaged in wrongful conduct.
Because high-risk classification does not necessarily indicate a past involvement in violent crime, even these individuals should receive individualized assessments of dangerousness or flight risk to limit the possibility of detaining people who pose neither. Moreover, individuals charged with having been convicted of an aggravated felony have lived in the United States for an average of fifteen years suggesting that they have developed deep ties in this country......[Citing TRAC research.
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