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Teaching with Detention

Introduction

Far too often, students and educators struggle to see eye to eye. Teachers regularly disagree on methods of disciplining their students. Controversy arises, even, with the question of whether or not teachers should apply any discipline to their students, or leave it up to the parents. One of the most common practices in dealing with misbehaving students is holding after school detention. But by keeping students after school hours, are teachers exercising their rights, or going too far? Is detention an effective solution to class disruptions, or would it spur future problems?

Free resources across the internet allow for teachers to weigh detention and all of its possible alternatives.

• Lesson Plan
•   Behavior Worksheets : Here, Worksheet Place provides dozens of worksheets for students that assist them in assessing their behavior and emotions. The worksheets include behavior contracts, bullying analyses, conflict resolutions, goal setting, and more. The page also includes resources for teachers, including classroom management checklists, and class rules that teachers can display on their walls. These tasks can be used as opportunities for reflection in place of punishment or can serve as activities to be completed during detention. These worksheets are mostly intended for younger students and can be completed inside or outside of regular class time.
• Reflection Document : Pivotal Education provides this reflection worksheet to give to detention-serving students. The document is meant to outline an activity more productive than what is normally presented for students, and to prevent further behavior issues in the future. The questions on the worksheet force the student to identify and reflect on the people affected by their actions and ideas for preventing future issues. The open-ended questions within the document allow for flexibility for the worksheet to be used with virtually any age range.
• Discipline Packet : This online packet from Teacher Beacon provides worksheets and for responding to misbehavior. The packet includes printable warning slips, a behavior contract, and a sample letter to parents. Also included are writing assignments to be completed by students who break classroom ground rules. Most of these assignments serve as consequences for minor infringements such as gum-chewing, tardiness, and disruptive behavior. The writing assignments can serve as lesser consequences to stop the behavior before further action becomes necessary. Teachers can utilize items within this packet to establish ground rules and to keep track of recurring offenses.
• Do Detentions and Suspensions Work? : Here. Education World interviewed Annemarie Hillman, a policy fellow at Connecticut Voices for Children, to analyze whether detentions and suspensions prove themselves effective in schools. She classifies suspensions as ineffective since students tend to view them like vacations. Detentions, however, can work “if done right.” They can serve as an incentive to keep students from repeating misbehavior. When students serve detention during lunch, they miss out on a social opportunity and in turn will be less likely to act up in the future. 
• New Direction : James Paterson from District Administration Media examines ways that adults are trying to implement disciplinary action into their schools. The article establishes that African American and special needs students face disproportionate rates of exclusionary punishment. According to a number of cited studies, students who receive detentions are more likely to drop out of school altogether. This article highlights alternatives that teachers have found to the standard sit-silently style of confinement. Allowing students to reflect on their actions and for teachers to coach struggling students proves much more productive. Teachers can read this article to determine improvements for the established practice.
• Student-Run Courts : This article from The Guardian acknowledges the disproportionality of detentions in school systems and outlines a recent alternative to the custom: mock court systems. Rather than serve detention for certain offenses, students are to stand before a committee of their peers, make their case, and ultimately face fair consequences for their actions. The article praises this new approach, arguing that it prevents student-teacher discrimination in disciplinary systems and consequently fights the impelling school-to-prison pipeline.
• Informational Sites
• Defining Detention : Queensland Government provides a foundational understanding of detention and the common practices associated with it. The site outlines parameters for responsible behavior in a linked study, titled “Safe, Supportive and Disciplined School Environment Procedure.” This page can serve helpful for those who may desire a better understanding of what detention is, or for educators unfamiliar with how to lead a session.
• Responding to Bad Behavior : University of Florida’s College of Education lists possible ways in which educators can respond to bad behavior. The items on this list can serve as alternatives to detention, a practice which may be the first thing that comes to mind. The actions can be applied to students of most ages. The approaches range from keeping a behavior log, to requiring a writing assignment, to revoking parking privileges for older students. While detention is one of the listed consequences, teachers can choose from any item on the list to enforce in their own classrooms.
• Task Ideas : Study.com provides this list of tips and ideas for teachers choosing to hold students after school. The goal of the article and the tradition is to provide students with tasks that will prevent future mishaps and improve classroom behavior. The site lists tactics that teachers can employ, such as dialogue journals and reflection sheets, and links supporting articles for each strategy. The site lists four strategies for teachers, all of which can be stretched to fit students of almost any age range.

Young people often rave about how educational institutions take up so much of their time and teach them no real-life skills. They are, after all, full-time students by the age of six. Perhaps by making the time spent with students, detention included, more productive, teachers can allow students to further appreciate their education and apply themselves more in the future. Educators should make sure that any disciplinary measures they take have the students’ best interests in mind. Schools should weigh circumstances to decide what method of discipline would be most fair for the students’ and teacher’s time.

Additional Resources

• Middle-School : This neaToday article criticizes forms of discipline for middle-school-aged children. Author Sabrina Holcomb references the school-to-prison pipeline, a theory that correlates higher rates of suspensions and expulsions with a higher likelihood of those same students becoming unemployed and going to prison. When a student’s learning is interrupted by such punitive measures, they are more likely to drop out of school and rely mainly on government-provided welfare programs. Holcomb acknowledges that the issue is not the fault of the teachers, but rather that of the broader school disciplinary system.
•   Detention Is Not The Answer : This literature review by Stephanie McCann from Northwestern College examines practices of institutional discipline, especially detention, and attempts to determine the most productive method for everyone involved. In the past, the practice has discriminated harshly against certain students. The author gathers that students for whom detention becomes a pattern experience major social and emotional consequences that affect them “for the rest of their life.” She acknowledges alternatives for the penalty and suggests that schools find a consensus for what works for their students. 

Example Guidelines : This site lists the guidelines for after-school detention at Lakewood Junior High School in California. The page delineates the school’s specific regulations, including commonly broken rules, expectations for those serving detention, and principles of conduct for future reference. Teachers can utilize this site to gain a better understanding of how one school approaches its academic disciplinary system. Should they choose to administer detentions, educators can look to these clear-cut guidelines when crafting their own system.

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How to Deal With Detentions

Last Updated: January 31, 2023 References

This article was co-authored by Alicia Oglesby . Alicia Oglesby is a Professional School Counselor and the Director of School and College Counseling at Bishop McNamara High School outside of Washington DC. With over ten years of experience in counseling, Alicia specializes in academic advising, social-emotional skills, and career counseling. Alicia holds a BS in Psychology from Howard University and a Master’s in Clinical Counseling and Applied Psychology from Chestnut Hill College. She also studied Race and Mental Health at Virginia Tech. Alicia holds Professional School Counseling Certifications in both Washington DC and Pennsylvania. She has created a college counseling program in its entirety and developed five programs focused on application workshops, parent information workshops, essay writing collaborative, peer-reviewed application activities, and financial aid literacy events. There are 14 references cited in this article, which can be found at the bottom of the page. This article has been viewed 33,580 times.

Most students will receive a detention at some point in their education. [1] X Research source Whether you are guilty of the infraction you’re accused of or not, detention can be embarrassing and create lasting resentment. By putting your punishment in perspective and maintaining a constructive attitude, you can get through your detention and easily move on.

Understanding the Rules

• If you believe you didn’t break any of these rules, politely explain that the rule is not properly stated or should be clarified.

• Empathizing with your teacher can help you accept your situation and not take it personally.

• Consider your tone when asking or you may come off as combative and make the situation worse. Say something like "Excuse me. I understand you think I broke a rule but I can't seem to find it in the handbook. Can you explain which rule I violated?" to start the conversation. Make sure to have a copy of the rules on hand.
• If asked sincerely, this can demonstrate that you’re interested in avoiding issues in the future. [3] X Research source

Dealing with Your Guardians

• Even if your school doesn’t require a signature, your guardians will likely find out anyway so being forthright with them is your best chance at controlling the situation.
• Start the conversation by saying something simple like “Hey, I have to tell you something.” Avoid alarming introductions like “I have some bad news” because it may set a more negative tone for the conversation.

• They will likely be more upset if they find out you are not being honest about the situation.

• Try to deliver the news calmly. Make sure you’re not too emotional.
• If you tell them at the wrong time, they may react in anger and it will be more difficult for you to tell your side of the story. [5] X Research source

• Even if you are maintaining that you did nothing wrong, explain how you will avoid putting yourself in bad situations in the future. For example, by avoiding students that are known to get in trouble or creating a better relationship with your teacher. [6] X Research source

• Finding out their child has a detention can be stressful for your guardians. Try to understand that their first reaction will most likely be a disappointment and it’s your job to improve their perception by demonstrating you’re responsible and mature.
• If there is a punishment, accept it gracefully.

Dealing with the Teacher Who Gave You Detention

• Even if it’s an administrator, you’re likely to see them in the hallways or cafeteria.
• Find a constructive way to either repair your relationship with them or avoid further confrontations.

• Even if you don’t intend to create any problems, simply remaining angry can lead to negative confrontations in the future. Holding a grudge can also be bad for your health. [8] X Research source

• Approach your teacher before or after class and be direct. Say something like “I understand why you had to give me detention. I didn’t mean to cause any disruption. I’m ready to get back to work.”
• It may surprise you how quickly a teacher can go from having a negative attitude toward you to a positive one when you demonstrate maturity.

• This is also the best way to deal with any awkwardness between you and the teacher.

Making the Best of It

• The silence of a detention room can provide the perfect opportunity for you to get your work done. [13] X Research source
• Plan your work ahead of time. Make sure your textbooks, class notes, calculator, worksheets or anything else you’ll need to get something done during detention.

• Even if you aren't a particularly artistic person, practicing art on a regular basis can build your creativity, improve your mental acuity and relieve stress. [14] X Research source

• Creative writing during detention improves student behavior and academic outcomes. [15] X Research source
• You can use your experience getting or being in detention for inspiration.

• If you feel that you were punished by an unfair rule, ask if other students have had similar experiences and see if you can start a conversation with the administration to change it.

Expert Q&A

Other wikiHows

• ↑ http://www.educationworld.com/a_admin/admin/admin329.shtml
• ↑ Alicia Oglesby. Professional School Counselor. Expert Interview. 29 October 2020.
• ↑ http://www.skillsyouneed.com/ips/clarification.html
• ↑ https://www.mindtools.com/pages/article/establishing-credibility.htm
• ↑ http://www.healthguidance.org/entry/15752/1/Best-Ways-to-Break-Bad-News.html
• ↑ https://www.cmu.edu/teaching/designteach/teach/problemstudent.html
• ↑ http://www.wholechildeducation.org/blog/set-an-authentic-and-respectful-tone-at-the-top
• ↑ http://www.menshealth.com/guy-wisdom/let-go-grudge
• ↑ https://www.mindtools.com/pages/article/how-to-apologize.htm
• ↑ http://www.towardsmaturity.org/article/2016/06/13/focus-making-impact-demonstrate-value/
• ↑ http://forums.welltrainedmind.com/topic/303516-can-somebody-explain-detention-to-me/
• ↑ http://bebrainfit.com/the-health-benefits-of-art-are-for-everyone/
• ↑ http://jjie.org/healing-words-creative-writing-programs-as-therapy-for-kids-detention/99293/
• ↑ https://www.psychologytoday.com/blog/headshrinkers-guide-the-galaxy/201108/life-isnt-fair

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Face Off: Is detention an effective punishment for students?

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Detention Activities For Middle School: Exercises, Games, And Discussions

October 11, 2023 //  by  Michelle Mandel

Teachers do not like being the bad cop!  Detention is one punitive measure to take in response to negative behavior. Time to reflect on what you have done.  This is counterproductive, children are acting out because they are in need of attention and guidance.  So with these alternatives to detention, educators can connect, and boost students' confidence. gain trust and respect, and soon the detention room will be empty.

1. What's my purpose?

We are all special and have our own unique traits. As children get older they are told more often than not the negative feedback and not the positive behavior they demonstrate. Life is stressful and with the world changing around us, sometimes we forget why we are here, and why we all have a purpose.

Learn More: Prince Ea

2. Blackout poetry. Great instructional time 

This activity is so much fun and really it does inspire anyone to be a "poet" or at least try and give it a go. Children who have never been exposed to creative poetry will love this because there is no right or wrong. This is cool and interesting.

Learn More: The Daring English Teacher

3. You just got school detention!

This is a funny sketch video about how playing a trick on someone can backfire and have consequences! Students in detention can talk about how sometimes playing tricks is all in fun and other times not worth the risk and could have serious consequences for misbehavior.

Learn More: Youtube

4. Laughter = positive school culture

These games are meant specifically to make kids feel safe and relaxed, so they can release some stress. Harsh punishments don't work. Get kids talking to help reduce disruptive behavior!  For a middle school play Mad Dragon, The art of conversation, Totika, and more!

Learn More: Education And Behavior

5. Great assignment for detention-reflection 

This is a great way to get kids to do something with their hands while they are working on their self-portraits they can have guidance and assistance from the teacher.  This activity will relax them and put them at ease so they can reflect on any bad behavior.

6. Express yourself through a rap!

Rap music is loved by middle school children and creating your own rap about how things make us feel. "How we don't like school but being rude in class is not cool! " This exercise will give the children a chance to vent and de-stress while in detention. Great video and educational too!

7. Think Sheet

These are great reflection worksheets for students and can be adapted by grade level.  to fill out. easily and it can lead to some open conversation with the teacher or monitor. Children will learn what they can do better next time and how to avoid conflict.

Learn More: Art Teachers Help Al

8. Make Jails for phones- an original detention idea

Mobile phones in the classroom disaster!  Classroom expectations must be known, and it is imperative that we have some creative ways to get kids to give up their phones. These are easy to make and make class rule posters about why phones are so distracting.

Learn More: Pinterest

9. Lunch detention

Lunchtime is a break but others might be going to lunch detention, where they will eat in silence, not look at anyone and reflect. Well, this is the best opportunity to teach nutrition and have a talk about eating healthy and being responsible for our actions.

Learn More: 20 Teacher-Approved Nutrition Activities For Middle School

10. Punch Ball

Teachers think that if they use punch balls in the dentition room it will cause more aggressive behavior. On the contrary, children need to vent because sometimes life isn't fair. We have needed to change the old measure for decades and think creatively about time-outs.

Learn More: Therapy Sensory

• Our Mission

3 Alternatives to Assigning Detention

Developing relationships with students to help them make positive choices requires planning and patience, but the work pays off.

There may be times when you have reached the end of your patience with a student’s behavior. They may disrupt learning or repeat a negative behavior too many times. What do we do as teachers in these scenarios? Sometimes the simple answer is assigning detention.

Yet detention is not an effective discipline tool for some students , and in fact it might increase the recurrence of negative behavior. Detention and other punitive measures, like suspensions and expulsions, can contribute to other issues , such as recidivism among students, despite harsher or longer punishments. These measures have the potential to increase apathy and defiance. They can jeopardize teachers’ and staff’s efforts to build relationships and trust. Finally, they can have a negative effect on a student’s academic performance.

There is evidence of racial and ethnic disparities among students assigned to detention. In 2014, the U.S. Department of Education’s Office for Civil Rights sent a letter to educators outlining the disparities and offering alternatives to detention and suspension. Instead of detention, the DOE recommends restorative practices and positive interventions, such as counseling.

There may be severe circumstances that require removing a student from the school environment and placing them on off-campus suspension, such as hitting, fighting, threatening, or verbal assault. But before submitting a detention referral form for minor, day-to-day offenses, consider these three alternatives.

One suggestion is to create a reflection room in place of one for detention. In it, teachers, administrators, caregivers, and the student go through a reflective process to understand the root cause of a conflict and assist the student in understanding and identifying better options. Reflective practices teach students what actions they can take in the future when confronted with difficult situations.

As a middle school assistant principal, I recently had two students referred to me for pushing each other during recess. As I spoke with each of the students individually, I realized they had very different perspectives on what had occurred. “I tripped and landed on him. Really!” versus “He deliberately ran into me!”

These two students needed to learn how to see a situation from another person’s point of view. They each wrote a narrative description of the scuffle as if they were the other person. I followed up with each student separately, and both realized that perhaps they had misinterpreted the other person’s intentions. After writing a reflection, there’s no guarantee that they will never push each other again. But maybe they’ll take a moment to consider what the other person is thinking before they react physically.

Logical Consequences

If you are familiar with the concept of the Responsive Classroom , you might have heard about logical consequences . Instead of harsh punishment, the teacher gently instructs the student on how to correct their errors.

At the end of the discussion, students become empowered because the teacher assists them in reaching epiphanies like “When I knock things down, I have to help build them back up,” “I can fix things when I mess up,” or “My teacher helps me solve problems.” If a student leaves a mess at the lunch table, the obvious next step is to clean it up. Please keep in mind that this is not a suggestion to assign illogical chores, such as “You forgot your homework, now scrape gum off the sidewalk.”

The tone of the teacher is critical when using logical consequences. It should convey problem-solving and learning rather than anger or frustration. Maintaining students’ dignity is essential for assisting them in learning from an experience.

Logical consequences do not always have to be negative. When students make thoughtful decisions that result in good outcomes, note it. Ask your school administration if they will accept “positive office referrals” in which a teacher refers a student for helpful behaviors. How cool would it be if your students routinely wondered, “Is she there for a positive referral?” whenever the principal called a student out of class.

Restorative Practices

Restorative practices, in a nutshell, teach students how to right the wrongs they have caused. They provide alternatives to using punishment and build healthier learning communities. To quote Arkansas principal Chelsea Jennings , “Kids who are frequently in trouble are often testing a system that has repeatedly failed them, but a restorative approach says ‘we are not giving up on you.’”

If a student disrespects another student or staff member in words or actions, how can that student attempt to repair the harm done? A science teacher at our school implemented this approach when a student disrupted her class. The teacher informed the student that her disruptive behavior had taken away instructional time, and as a result, the student would have to help the teacher recoup some of the lost time by assisting with the prep for the next lab before school. Even if the student thought that prepping for a lab was enjoyable or fun, that student was fulfilling the spirit of the consequence: making up for the lost time.

Peer conflict resolution assists students in working to repair the harm done to another student. Students can be taught conflict resolution with the help of a faculty member or counselor. If a student uses a slur or disrespectful language, that student should investigate why that language is harmful. By conducting research first, the offending student can craft a more sympathetic and informed apology to the victim.

An example of this is a middle school student who made a racially insensitive joke. From speaking with the student, it was clear that he did not know the joke was offensive. He was repeating what he had read on the internet. After doing some research on the origins of the joke, the student realized why it was hurtful and sincerely apologized.

There would be no growth, no new understanding, no repairing of harm, if I simply assigned him detention.

The alternatives suggested above are not quick and easy. Some people will object, fearing that restorative practices are letting students off easy or with just a slap on the wrist. These are valid concerns, but one important point to remember is that restorative practices are preventive actions based on relationships.

Building the relationships necessary to guide students toward positive choices requires creativity, planning, and a lot of patience. So why do it? It pays off when students’ behavior improves and the community becomes a more positive environment.

The PBIS World Book

Reflection Sheets

Why should i do it:.

• We learn from reflecting on experiences, good and bad. A Reflection Sheet is a very effective tool to use when a student is displaying unacceptable or acceptable behaviors and can be used in conjunction with the Class Rules. The sheets can be used to help correct undesired behaviors or, alternatively, to reinforce those students following the rules and exhibiting expected and desired behaviors.

When should I do it:

• When students are exhibiting unacceptable behaviors
• When students are not following school/class rules
• When students are on task, displaying appropriate behaviors, and following school/class rules

How do I do it:

• The student is told to go to the reflection center
• The teacher explains briefly to the student why they are being sent and what behaviors or rules they were breaking
• The student is withdrawn to reflect on his/her behavior and completes the Reflection Sheet, discussing it with the Teacher after it is completed
• A timer may be used
• Alternatives to writing may be drawing pictures, talking into a microphone and recording responses, or typing responses into computer
• A desk set apart from the other students may serve as a reflection center
• When sending a student who is exhibiting appropriate behaviors and is following the rules, the student may share with the class what behavior and expectation they were “caught” doing correctly. Additionally, these students may receive a small reward or a sticker toward a reward.

Resources & Support for technique:

• Becoming A Problem Solver Sheet.pdf
• Behavior Improvement Form.doc
• Behavior Improvemen t Form Image Search
• Fixing Broken Rules Sheet.pdf
• Kindergarten Think Sheet.pdf
• Kindergarten Think Sheet Image Search
• 1st Grade Think Sheet.pdf
• 1st Grade Think Sheet Image Search
• 1st and 2nd Grade Think Sheet.pdf
• 3rd, 4th, 5th Grades Think Sheet.pdf
• Middle & High School Think Sheet.pdf
• Middle & High School Think Sheet Image Search
• Middle School Think Sheet.pdf
• Stop And Think Sheet.doc
• Stop & Think.pdf
• Stop & Think Image Search
• Think Sheet.doc
• Think Sheets
• Think Sheet Image Search
• Think Sheet.pdf Image Search

Lessons From Lunch Detention

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As an assistant principal, I handle most of the disciplinary issues in my school. In a middle school, these cover the spectrum from attendance to bullying and fighting. It’s common knowledge that middle school is a trying time, when kids push limits with their parents and their teachers and require a lot of adult intervention. At school, intervention typically comes in the form of a consequence.

I am very fortunate that a majority of my disciplinary issues are for minor infractions. The most common consequence I administer is lunch detention.

I enjoy lunch detention. No, my enjoyment doesn’t stem from a deep-seated love of torturing kids, but rather from being able to sit and talk to these kids, my kids, about anything and everything. Last year, my kids dubbed the detention table “the Table of Shame,” and the name has carried over to this school year. Our table sits in the front of the cafeteria in between two of the four hot-lunch lines. It is no secret that those sitting at the table are there for penance from some type of disciplinary infraction. Kids pass by and wave to their friends at the table; some stop by for a quick chat before being shooed away with a reminder that attendance at the table is by invitation only, while others simply shake their heads as they walk by.

As lunchtime passes, my kids share their weekend adventures, their after-school plans, and sometimes their dreams (and disappointments). We talk about family separations, sibling rivalries, accidents, and in one case, a grandmother who came to visit and never left. We sympathize with one another and offer support. We problem-solve issues presented during these discussions and strategize suitable solutions. Most of the kids at the table are “frequent flyers"—those who continually cannot get to class on time, choose not to dress out for PE class, or simply are not doing their homework. These kids wind up serving multiple detentions during the school year.

I benefit from my time with these kids. They keep me in touch with my constituents. I learn about trends I may not otherwise be aware of. I also get to see my kids in another light. We never know what kind of emotional baggage kids carry to school each day. My lunch-detention kids have invited me to their youth-soccer and -basketball games, and I’ve gone to them. They are always noticeably pleased to be seen in a different light showcasing their skills and interests outside school.

The detention kids and I discuss grades, attendance, and current science experiments. We negotiate on early release and sometimes have competitions on taking shots with empty milk cartons to see who can make the “three-point shot” into the recycling bin. Last year’s incentive for a five-minute early release from lunch detention was to eat all of the cooked vegetables on the lunch tray. Baked carrots and steamed cauliflower were choked down to allow for a small taste of freedom (and basketball). The kids cheered each other on until the last bite was taken. Who knew that lunch detention could be a team-building event?

Students do not willingly give up their free time. Lunch detention does come at a cost. Most of my kids love to play football or basketball. When assigned a detention, they lose the opportunity to play. They lose their freedom that day, while I gain an opportunity to mentor them.

We never know what kind of emotional baggage kids carry to school each day."

Lunch detention isn’t just an administrator’s responsibility. While our teachers have a duty-free lunch period, many give up their time to cover my table when I am out of the building or hold their own lunch detentions. The attention students receive during this time from me or one of their teachers can be the bridge that keeps them coming back each day. I’ve learned that a “negative” consequence can have a “positive” impact.

As an educational leader, it’s easy to support these kids when you are out and about monitoring the instructional process. A quick reflection back to the classroom observations that morning sets the stage to ask kids how a particular assignment is coming along or how they did on a quiz. They will be amazed that you know what they are doing in class. The school improvement process also plays a part in this dialogue when your mentor group rises from the detention table and becomes a documented intervention success story in your school improvement plan. Our time spent together each day tends to shape us as a family gathered around a large dining room table. It’s our own version of “ The Breakfast Club ” with a diverse group of kids, but participation is by invitation only.

A version of this article appeared in the November 13, 2013 edition of Education Week as Lunch Detention, by Invitation Only

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Detention and Deterrence: Insights from the Early Years of Immigration Detention at the Border

abstract: Throughout the past several years, in the Trump and Obama Administrations alike, federal immigration authorities have advanced the use of detention as a deterrent to dissuade immigrants from seeking refuge in the United States. That detention often lasts for months, and even years, causing some immigrants to give up their cases, while others fight on despite the obstacles detention poses. This Essay takes a step back and returns to the late 1800s and early 1900s, when immigration detention was first employed primarily to detain and inspect noncitizens arriving from Asia. Despite the xenophobia and racism that characterized that era, such detention remained limited in purpose and duration, unlike the prolonged, deterrence-based detention that faces many who arrive at or cross U.S. borders today. The Essay argues that this history matters when assessing the due-process rights of noncitizens in immigration detention—a question that federal courts are actively considering and that is likely to return to the Supreme Court. These early practices call into question the constitutionality of today’s detention system and suggests that stronger limits on its use and duration are needed to respect noncitizens’ due-process rights.

Introduction

Immigration detention may be the single most powerful tool the executive branch wields to achieve desired immigration policy goals. It is a particularly powerful weapon against noncitizens arriving at the border, often dashing their hopes for entry into the United States. In the past several years, administrations of both parties have used such detention to attempt to deter arriving noncitizens and those who cross the border—and in particular, asylum seekers—in an effort to control an influx of arrivals. 1

The tremendous hardships immigration detention imposes on those subjected to it is not new. The walls of the Angel Island Immigration Station—which features prominently in this Essay and is one of the country’s oldest detention centers—contain poems written by arriving Chinese noncitizens lamenting detention nearly a century ago. One poem reads:

Imprisoned in the wooden building day after day, My freedom withheld; how can I bear to talk about it? I look to see who is happy, but they only sit quietly. I am anxious and depressed and cannot fall asleep. The days are long and the bottle constantly empty; my sad mood, even so, is not dispelled. Nights are long and the pillow cold; who can pity my loneliness? After experiencing such loneliness and sorrow, Why not just return home and learn to plow the fields? 2

During my year as a Yale Law Journal Fellow and practicing attorney at the Northwest Immigrant Rights Project, I heard these same sentiments expressed by those facing months of detention while they fought their cases. The prospect of lingering in jail-like conditions for many months, facing highly uncertain odds of success, caused many to consider giving up—and some in fact to give up—their claims for relief.

But detaining arriving noncitizens for months on end to serve deterrence goals is a historical anomaly. Beginning in the 1870s, and for the first several decades that immigration detention became common for arriving noncitizens, detention was a short-term measure justified only as a means to determine an individual’s admissibility. This comparatively short detention occurred despite immigration policies grounded in hate, xenophobia, and explicit racism—strikingly similar to the treatment some politicians, pundits, and others direct toward immigrants today.

Early immigration detention—which was typically brief and unmotivated by deterrence—informs whether today’s detention of asylum seekers (and other immigrants crossing the border) for months, or even years, violates their right to due process. Indeed, when Congress did try to use deterrence to prevent migration—by passing a law that imposed hard labor for immigration violations by Chinese immigrants—the Supreme Court struck that law down. 3 The Court has often looked to historical practice in defining rights under substantive due process, and has also made clear that even noncitizens who cross the border unlawfully have such rights. It is therefore critical that federal courts understand that today’s prolonged detention and its deterrence rationale and effects are anomalous by historical standards. Indeed, instead of months or years in detention, immigrants during the era this Essay examines typically spent days or perhaps weeks detained, and courts exhibited concern for long detentions. This historical practice calls into question the constitutionality of the detention system facing noncitizens at the border, crossing the border, and inside the country today.

Because of its constitutional importance, this Essay focuses on the historical practice of short-term detention. In Part I, I review why this Essay is necessary, briefly noting recent policies and proposals that use deterrence-based, long-term immigration detention to achieve anti-immigration goals. Part II examines the historical record of immigration detention during the era of Chinese exclusion. This utterly shameful and repugnant period was nevertheless characterized primarily by short detention, which itself was justified only by the brief window required to determine an individual’s admissibility. In Part III, I tie these two threads together by examining the constitutional implications of these early norms for today’s immigration detention system.

I. current and recent policies: deterrence and prolonged detention at the border

A. recent developments: the trump administration and deterrence.

The past two years have been characterized by increasingly extreme policies intended to deter noncitizens who have recently crossed or arrived at the U.S. southern border. The most well-known of these policies was an effort to deter asylum-seeking families by separating parents and their children at the border, prosecuting the parents, placing the children into federal custody, and then detaining the parents for immigration proceedings. 4 A federal court issued a preliminary injunction suspending the family-separation portion of this practice. 5 But as many pointed out, the Trump Administration’s solution was to call for more detention of families. 6 Similarly, the current Administration is in the midst of an effort to dismantle a long-standing consent decree governing the detention of minors that it claims has “effectively prevented the Government from using family detention for more than a limited period of time” and created “a powerful incentive for adults to bring juveniles on the dangerous journey to the United States.” 7 In other cases, too, the Administration has sought to eliminate “incentives” for noncitizens seeking refuge by subjecting them to detention without the opportunity for a bond hearing. 8 Reading between the lines in these cases and proposals is not difficult: the Trump Administration wants to detain even more arriving noncitizens and recent entrants for more than a “limited period” to deter others from coming to the United States. 9

B. Prior Administrations and the Expansion of Immigration Detention

The Trump Administration, however, is not alone in embracing long-term, deterrence-based detention. The Obama Administration heralded such policies as well. In 2014, the Department of Homeland Security opened a new detention center that was billed as an “effective deterrent” to continued family migration. 10 Under President Obama, Immigration and Customs Enforcement (ICE) took that rationale a step further, citing deterrence as a reason to justify families’ continued detention during bond hearings where those families sought release. 11 A federal court eventually enjoined the use of deterrence as a rationale for long-term detention of asylum seekers. 12 The court reasoned that because of the constitutional concerns associated with deterrence-based detention, it would not read the Immigration and Nationality Act—and specifically, 8 U.S.C. § 1226(a)—to authorize detention based on deterrence. 13 While the Trump Administration has not sought to reimplement that policy, it has instead pursued deterrence by other means: eliminating the right to a bond hearing, 14 limiting parole for recent entrants seeking asylum, 15 and separating families, among others. 16

The scale of this detention system—and many of the problems associated with it—is a relatively new phenomenon. As recently as 1995, the federal government had bed space for fewer than 7,500 immigrants nationwide. 17 Since then, first the Immigration and Naturalization Service, and later, the Department of Homeland Security, rapidly expanded this detention capacity under the Bush and Obama Administrations. 18 For example, in fiscal year 2018, ICE’s average daily detention population reached 40,520, a level that Congress agreed to continue funding—but not expand—in 2019. 19

C. Why It Matters: Practical Implications and Emerging Constitutional Questions

This expanded detention system often means months and even years in jail-like conditions for those seeking refuge or admission to the United States. 20 For example, a recent study involving detained families seeking asylum noted that many families regularly spend several months—and often six or more—in detention. 21 Other data similarly suggest that asylum seekers who pass an initial screening process likely face at least six months in detention, nearly a year if they lose and appeal to the Board of Immigration Appeals, and much longer if they petition for review in a federal court of appeals. 22 Voluminous individual examples also exist of arriving noncitizens facing months and years of detention while they pursue immigration relief. 23 For some, this detention undoubtedly has a deterrent effect. Clients of mine have expressed dismay when I explain that they may face several months of additional detention if they choose to appeal their case to the Board of Immigration Appeals—and much longer if they seek review in a federal court of appeals. That experience is consistent with the stories of other immigrants’ rights advocates, who have similarly noted the deterrent effect of prolonged detention. 24 On the other hand, the fact that thousands of immigrants do choose to fight their claims despite this detention suggests that the deterrent effect has limits, as some studies have pointed out. 25

But the point here is that, regardless of detention’s actual effects, Republican and Democratic administrations alike have overseen long-term, deterrence-oriented detention of asylum seekers to stop large numbers of noncitizens from arriving and seeking asylum at ports of entry or after crossing the border. This policy’s popularity across ideological lines as a rationale for detention provides reason to explore further whether such practices are constitutional. That question is especially pressing now, in light of the Supreme Court’s 2018 decision in Jennings v. Rodriguez . 26 In Jennings , the Court concluded that 8 U.S.C. §§ 1225(b) and 1226(c) mandate detention without the opportunity for a bond hearing, even after the noncitizen has spent many months in detention. 8 U.S.C. § 1225(b) is critical here, as it governs the detention of arriving noncitizens and those detained shortly after crossing into the United States. However, the Court left open the question of whether long-term detention without a bond hearing is constitutional, remanding the case so that the lower courts could consider that issue. 27

II. the treatment of arriving noncitizens in early immigration detention

A. the purpose of immigration detention in its early years.

For much of the nineteenth century, Congress saw fit to leave immigration largely unregulated. That changed as the country moved west and, in particular, as California grew rapidly. The mid- to late-nineteenth century saw large numbers of Chinese nationals immigrate to California to meet growing labor demands. But as the economic boom associated with California’s gold rush dissipated, that demand quickly turned into animosity, xenophobia, and soon enough, restrictive admission policies designed to dramatically limit Chinese immigration. 28 And with the rise of those restrictive policies came Congress’s first real attempts to prescribe the terms of inspection and detention at the border.

The Chinese Exclusion Act of 1882 and the restrictive policies that followed were the product of unabashed racism and nationalist fearmongering. 29 Many of those sentiments seem eerily similar to the language and rhetoric that some politicians use today with respect to immigrants. 30 As I detailed above, those sentiments are reflected in serious current policy proposals that would use detention to deter further immigration. Yet, as this Section demonstrates, even in the heated immigration environment of the West Coast in the late nineteenth and early twentieth centuries, detention was never more than a tool to secure a noncitizen’s presence for a truly brief amount of time for inspection or to protect public safety.

1. Early Immigration Regulation: Inspection of Ships

Prior to the late nineteenth century, Congress largely regulated arriving noncitizens by requiring that incoming ships provide a manifest of passengers listing those on board, the passengers’ country of origin, and whether those passengers intended to become inhabitants of the United States. 31 These early acts also regulated the ships’ conditions and the number of passengers. 32 However, they did not provide for a formal inspection process or a detention scheme to aid that process. In other words, Congress used the regulation of ships to monitor entry into the United States, rather than providing a detailed inspection scheme. 33

2. The Advent of Detention: Inspection of Persons

A congressionally authorized inspection and detention system seems to have first developed with the passage of the Page Act in 1875. 34 Congress enacted the Page Act to regulate what it perceived as the problem of trafficking in Chinese and Japanese women for prostitution. 35 Specifically, the Act barred the “importation” of women from China, Japan, or other “Oriental” countries without those individuals’ “free and voluntary consent.” 36 The Act also more generally prohibited “the importation into the United States of women for the purposes of prostitution.” 37 Importantly for this Essay’s purposes, the Page Act provided for the inspection of arriving passenger ships “under the direction of the collector of the port at which it arrives,” and also stated that the collector should prevent the noncitizens on board from landing if the collector identified “obnoxious persons” on the ship. 38 The passengers on board an arriving ship were to remain there until the collector certified that the arriving noncitizens’ entry would not violate the Page Act. 39 Thus, in effect, the Act authorized an early form of brief detention aboard arriving passenger ships.

This practice expanded in the following years. In 1882, Congress passed the first of a series of laws enacted over the next few decades, primarily by regulating the admissions process. The first Chinese Exclusion Act in 1882 suspended the arrival of Chinese “laborers,” while continuing to permit the arrival of other classes of Chinese nationals, like merchants, teachers, and diplomats. 40 Consistent with Congress’s prior efforts to regulate immigration, the 1882 Act provided that passenger ship captains had to show customs officials a manifest of the individuals on board. 41 Section 9 of the Act then went on to state that “before any Chinese passengers are landed from any such vessel, the collector, or his deputy, shall proceed to examine such passengers, comparing the certificates with the list and with the passengers and no passenger shall be allowed to land in the United States from such vessel in violation of law.” 42

This inspection process resulted in the detention of many arriving Chinese passengers (as well as individuals from other nations), both on board ships and on the docks of the companies transporting them. For example, immediately following the passage of the Act, customs officials began to detain arriving Chinese immigrants perceived as possibly inadmissible in the hulk of a “large[] wooden-hulled” ship in San Francisco’s harbor. 43 Other abandoned ships also served as the site of immigration detention in these early years after Congress passed the Chinese Exclusion Act. 44 As historians Erika Lee and Judy Yung write, “steamship detention” was “the main system of detention for almost twenty years,” as “steamship companies . . . transferred Chinese passengers from ship to ship until the final decisions in their cases were made.” 45 After several years, this “makeshift detention system” began to take place on the docks in the San Francisco harbor belonging to the passenger ship companies. 46 Most importantly, “[i]n 1898, the Pacific Mail Steamship Company, one of the main transporters of goods and people across the Pacific Ocean, converted some of its general offices on Pier 40 into a detention facility, and Chinese detainees were moved there.” 47 In this detention facility, Chinese citizens “awaited the outcome of their cases.” 48 Conditions were crowded, unsafe, and unsanitary. The facility’s obvious inadequacy helped lead Congress to fund the creation of the Angel Island Immigration Station. 49

With the opening of the Angel Island Immigration Station in 1910, officials moved the existing ad hoc detention system into the new facility. They first screened arriving boats by boarding them, immediately clearing some individuals for landing, and ordering others transferred to the new detention facility for further screening. 50 This inspection reflected overt class and race dimensions: wealthy white passengers received cursory inspection and were generally permitted to land, “spar[ing] [them] . . . the exhaustive immigration inspections on the island to which most second- and all third-class and steerage passengers were subjected.” 51 Some returning Chinese citizens who had their papers in order might also make direct landfall, but immigration officials detained and transported most of them (together with other less wealthy passengers) to Angel Island. 52

3. The Legal Authority and Rationale for Early Immigration Detention

Once on the island, immigration inspectors would undertake the notorious, well-documented process of examining arriving noncitizens. 53 But our concern here is with why noncitizens (and in some cases, citizens) experienced this detention: Congress authorized immigration detention only for the short time necessary to examine arriving noncitizens in order to determine their admissibility. 54 The Chinese Exclusion Act of 1882 mandated inspection of arriving passenger ships, and prevented those Chinese arrivals who were subject to further inspection from landing. 55 The authority to detain for the purpose of determining admission became a feature of the immigration scheme in subsequent legislation as well. The Immigration Act of 1903 provided that immigration inspectors should “inspect all . . . aliens” on arriving passengers ships and provided that those “immigration officers may order a temporary removal of such aliens for examination at a designated time and place.” 56 Congress included similar authority when it passed the Immigration Act of 1917 ten years later. 57 And decades later, the Immigration and Nationality Act of 1952 also provided some of the same basic inspection and detention authority, along with other sources of detention authority for arriving noncitizens. 58

A secondary purpose of immigration detention—evidenced in restrictions on admissibility—was public safety, to ensure that dangerous or sick individuals could not enter (even though, as a practical matter, such concerns were unquestionably exaggerated and motivated by nativism and racist assumptions regarding those arriving from East Asia). 59 Medical examinations and diseases often served as a pretext to exclude or quarantine arriving Chinese citizens, by designating certain curable, nonthreatening diseases as a public-health concern and reason for exclusion. 60

Late nineteenth- and early twentieth-century sources also confirm that immigration detention for arriving noncitizens existed solely for (1) the brief time required to determine admissibility; or (2) to address some security or health risk that the individual presented. For example, late nineteenth- and early twentieth-century case law conceptualized or authorized the detention of arriving Chinese citizens for a “reasonable time” while immigration authorities determined admissibility. 61 Treatises from the period also understood the detention authority granted in these acts to permit detention only for the period necessary to examine an arriving passenger’s claim to entry. 62

Most importantly, in its 1896 landmark Wong Wing decision, 63 the Supreme Court found unconstitutional a portion of an 1892 law that authorized the imprisonment and forced hard labor of unlawfully present Chinese noncitizens without a criminal trial by jury. 64 In reaching that conclusion, the Court observed that, by contrast, “detention or temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens, would be valid.” 65 Thus, the decision made clear that detention was authorized for limited purposes during its early years, as Congress had otherwise recognized in defining the executive’s detention authority. This is particularly true given that the Court contrasted legitimate detention—in other words, detention to determine admissibility or deportability—with policies that sought to punish. The rejection of a punishment rationale, which is closely intertwined with deterrence, therefore provides further evidence that deterrence-based detention is an illegitimate immigration tool, at least absent the protections afforded to criminal defendants.

B. The Length of Early Immigration Detention

Another equally significant feature of this early form of detention for arriving noncitizens was its brevity. Immigration detention during the late 1800s and early 1900s was measured in days, or perhaps a few weeks—not the many months or even years that detention for removal proceedings requires today. 66 One estimate, based on a limited dataset before Angel Island became the primary site for detaining arriving noncitizens, suggests that Chinese detainees were held at the shed for an average of twenty-three days. 67 A more robust set of data reveals that arriving noncitizens experienced similar wait times on Angel Island from 1913 to 1918. 68 This second dataset encompasses detention at the height of Chinese exclusion, when Congress had passed its most restrictive laws and the Supreme Court had narrowed channels for judicial review of administrative decisions. 69 During this period, “[l]engthy detentions were rare.” 70 Instead, the average period of detention on Angel Island was only 10.2 nights. 71

One statistic underscores this point in particular: of the 3,369 arriving noncitizens detained during this period for at least one night, 72 only twelve were detained for more than 180 days. 73 This number is important because several recent pre- and post- Jennings federal court decisions have used the six-month mark as the point at which continuing detention presumptively requires procedural protections to remain constitutional. 74 In the early 1900s, the limited data available would suggest that what courts now consider “prolonged detention” was almost entirely nonexistent. Indeed, not only was “prolonged detention” as we know it today virtually unheard of, but the average detention times bear no resemblance to today’s months- or years-long detention system.

Further, detention beyond a few days was virtually unheard of at the other major arrival point for immigrants in the early twentieth century: Ellis Island, outside New York City. 75 “Most European immigrants processed through Ellis Island spent only a few hours or at most a few days there, while the processing time for Asian, especially Chinese, immigrants on Angel Island was measured in days and weeks.” 76

Admittedly, long periods of detention did occur for a limited number of arriving noncitizens. The best-known example is that of Quok Shee, who languished in the detention center at Angel Island for nearly two years, as her case worked its way through the immigration system, the federal courts and then back through that same process again. 77 Historian Lucy Salyer also relates the story of Chinese students detained for sixteen months upon arriving in the San Francisco harbor. 78 However, the data discussed above strongly suggest that such detention was highly abnormal, and the detention of arriving noncitizens was ordinarily “measured in days and weeks.” 79 Indeed, Quok Shee’s detention is the “longest known” at Angel Island. 80

The brevity of detention at the border may also reflect the fact that federal courts sometimes set bond for arriving noncitizens as an alternative to detention. For example, Quok Shee was eventually released on a bond set by a federal court. 81 Other examples of this practice also exist where detained noncitizens challenged immigration officials’ decisions using petitions for writs of habeas corpus. 82 These practices suggest that federal courts were concerned about the effects of lengthy detentions, and sought to ensure that noncitizens could continue their cases free of the pressures it posed. 83 Immigration officials might also decide to allow an individual to be released on bond. This practice—which the governing statutes did not explicitly provide for—may have helped to prevent frequent cases of lengthy detention among arriving noncitizens. 84

III. constitutional implications

This history of the early decades of immigration detention is important today. As an advocate for immigrants during my time as Yale Law Journal Fellow, I experienced this firsthand when representing detained immigrants. At the forefront of their mind—along with the likelihood of success in their case—is often the question, “How much longer will I remain locked up?” For some, the answer to that question—often many months or even years—is a burden they are willing to carry, but for others, it sometimes becomes too much, and rather than pursue another appeal or fight their case, prolonged detention leads them to give up. This is especially understandable given that “the circumstances of their detention are similar . . . to those in many prisons and jails.” 85 Facing such a situation, many detained noncitizens would rather abandon their cases than remain detained for months or years, especially since most struggle to find counsel, lowering the odds of success. 86

This problem poses serious constitutional questions under the Fifth Amendment’s Due Process Clause, given that the Supreme Court has repeatedly limited the length and purposes of civil detention, including in the immigration context. For example, the Court has warned that deterrence rationales cannot justify civil detention, 87 making clear that even where immigration is involved, such detention is appropriate only “in certain special and narrow nonpunitive circumstances.” 88 Thus, whether this practice of prolonged detention—and the deterrence it creates—withstands constitutional scrutiny is the subject of ongoing litigation around the country, in individual habeas petitions and class actions. And it is a question the Supreme Court will almost certainly revisit.

The Court has directly considered the constitutional due-process questions related to immigration detention on two previous occasions. First, in Zadvydas v. Davis , the Court presumptively limited immigration detention under 8 U.S.C. § 1231(a) to six months after the ninety-day period that Congress provided for the removal of noncitizens whose immigration proceedings are complete. 89 The Court did so to avoid the constitutional concern that indefinite detention poses, reasoning that lengthy detention was unrelated to the statute’s “purpose [of] assuring the [noncitizen’s] presence at the moment of removal.” 90 After Zadvydas , in Demore v. Kim , the Court considered the constitutionality of mandatory detention—that is, detention without the opportunity to post bond—for certain noncitizens who committed crimes enumerated by Congress and whom Congress deemed to be categorical flight risks. 91 The Court upheld such detention, but only because Congress mandated it for the “ brief period necessary for . . . removal proceedings.” 92 The Court also reached that conclusion due only to Justice Kennedy’s fifth vote. His separate concurrence noted that a noncitizen “could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” 93 Litigation since Demore has sought to answer the question that Justice Kennedy left open, and that the Supreme Court again left unresolved in Jennings . Thus, the next few years are likely to see new rulings on what limits the Constitution imposes on immigration detention. 94

Debates about due process in immigration detention involve both substantive and procedural components, and thus present two questions. First, substantive due process asks for what purpose the government may detain noncitizens and whether that purpose is related to the government’s use of detention. Second, if that purpose is constitutionally sound, procedural due process asks what process is required to protect noncitizens’ liberty interests and to ensure ’that detention actually relates to its purpose. Although these questions are connected, this Essay is primarily concerned with the first, substantive question. Put another way, we are concerned with whether the government may use deterrence to justify detention of those who arrive at the border or have recently crossed into the country. A closely related question is for how long the government may detain someone before it must accord protections that ensure detention does not arbitrarily deprive persons of their liberty and does not act simply to deter noncitizens pursuing lawful claims to remain in the United States. 95 The historical practices discussed above matter in answering these questions. That is because the Supreme Court teaches us that “history and tradition are the starting point . . . of the substantive due process inquiry.” 96 And while history is not the “ending point” for the constitutional debate, it certainly provides an important lens for examining whether prolonged, deterrence-based immigration detention is constitutionally acceptable.

Other cases involving immigration buttress the conclusion that this history of brief detention for limited purposes matters. Indeed, several members of the current Supreme Court have made clear that they consider historical practice relevant to the constitutional questions that immigration detention poses. 97 In addition, courts have used history to analyze whether noncitizens can challenge the legality of their detention using habeas corpus. In INS v. St. Cyr , the Court looked to historical practice to assess the scope of judicial review that habeas corpus and the Suspension Clause require. 98 It examined not only pre-Founding habeas practice in England and the American colonies, but also the precise era at issue here—the late 1800s and early 1900s. 99 The Court relied heavily on the availability of the writ of habeas corpus in this era, observing that “to conclude that the writ is no longer available in this context would represent a departure from historical practice in immigration law. The writ of habeas corpus has always been available to review the legality of Executive detention.” 100 Lower federal courts have since applied these same principles in the context of habeas corpus rights for arriving noncitizens, again relying on habeas practice during the Chinese Exclusion era to determine the writ’s scope. 101 History is, of course, particularly important in questions involving habeas corpus, as “at the absolute minimum, the Suspension Clause protects the writ ‘as it existed in 1789.’” 102 But the Court made clear that historical practice after the Constitution was adopted still matters to confirm what the Constitution requires. 103

Other decisions too, support the conclusion that the historical limits on immigration detention matter for constitutional purposes. For example, the Supreme Court has frequently examined historical practice in answering constitutional questions on issues like the separation of powers, 104 the First Amendment, 105 the Sixth Amendment, 106 and most significantly, the Due Process Clause. 107 In short, the historically limited purpose and scope of immigration detention should inform the constitutionality of today’s prolonged, deterrence-based detention system.

These conclusions might matter for any number of detention issues reaching the Supreme Court. For example, after Jennings , the question of whether the Department of Homeland Security may subject arriving noncitizens to prolonged detention remains to be decided. 108 Similarly, many courts are now addressing the question left open in Demore , regarding whether noncitizens who have committed certain enumerated crimes are constitutionally entitled to a bond hearing after six months in detention. 109 Although the historical evidence presented here primarily concerns arriving noncitizens, the limits on detention and their implications for due process may apply with even greater force to those who have lived in this country for many years, as have many who are subject to mandatory detention under 8 U.S.C. § 1226(c). Finally, as noted above, the Attorney General recently issued a decision eliminating bond hearings for noncitizens who have crossed the border and demonstrated a significant possibility of establishing a claim to asylum. 110 The historical evidence presented here calls into question the constitutionality of that decision. Indeed, the Attorney General’s decision has the effect of requiring detention of certain asylum seekers for many months and even years. Yet as we saw above, over a century ago, detention for arriving noncitizens—who likely have fewer due-process rights than those affected by the Attorney General’s decision—lasted only days or weeks, and federal courts sometimes intervened to shorten detention when noncitizens sought relief in federal court.

In sum, the early history of immigration detention countenanced neither deterrence-based goals nor long stays in detention facilities. As both a legal matter and a matter of practice, detention was closely tied to the brief period necessary to assess a noncitizen’s admissibility to the United States. Detention beyond six months was virtually unheard of—an important marker for today’s debates over how long the government may hold any person, including arriving noncitizens. Instead, detention typically lasted days or weeks, a far cry from the months and years of detention arriving noncitizens, recently entered noncitizens, and even long-time residents of this country experience today. Federal courts after last year’s decision in Jennings are now actively debating under what circumstances and for how long the government may detain noncitizens. Because historical practice informs what due process requires, courts and policy-makers would do well to heed the limitations on detention’s purpose and length evident in the immigration history of the late nineteenth and early twentieth century.

Aaron Korthuis wrote this Essay while working as a Yale Law Journal Fellow in the Impact Litigation Unit at the Northwest Immigrant Rights Project (NWIRP). He is now a staff attorney at NWIRP and is a 2017 graduate of Yale Law School. Thank you to the Yale Law Journal Forum editors for their helpful feedback and insight in reviewing this piece, and to my wife, Taylor Faranda, for reading my early drafts and proposals.

Volume 133’s Emerging Scholar of the Year: Robyn Powell

Announcing the eighth annual student essay competition, announcing the ylj academic summer grants program, this essay is part of a collection, yale law journal public-interest fellowship essays.

In this Collection, the 2018-19 Yale Law Journal Public-Interest Fellows draw from their on-the-job experiences. They show how New York locks up poor, disabled sex-offender registrants beyond their sentences; long detention is used to deter immigrants in historically anomalous ways; and students face obstacles when seeking to vote.

Fighting Back to Protect Student Voting Rights

Pushed out and locked in: the catch-22 for new york’s disabled, homeless sex-offender registrants.

Throughout this Essay, I use the term “arriving noncitizens” as a technical term for those who present themselves at a port of entry seeking admission to the United States. See 8 U.S.C. § 1225(b)(1) (2018). The constitutional concerns that this Essay discusses with regard to such noncitizens apply with even greater force to those already present in the United States, especially those with significant connections to this country. See, e.g. , Zadvydas v. Davis, 533 U.S. 678, 693 (2001).

Him Mark Lai, Genny Lim & Judy Yung, Island: Poetry and History of Chinese Immigrants on Angel Island 1910-1940 , at 82 (2d ed. 2014).

Wong Wing v. United States, 163 U.S. 228 (1896).

Ms. L. v. U.S. Immigration & Customs Enf’t, 310 F. Supp. 3d 1133, 1136-37 (S.D. Cal. 2018).

Id. at 1149. Since the Ms. L. preliminary injunction, the Trump Administration has pursued its deterrence-focused immigration policies through other means, such as attempts to suspend the right to seek asylum, see E. Bay Sanctuary Covenant v. Trump, 909 F.3d 1219 (9th Cir. 2018) (affirming preliminary injunction that enjoined policy barring asylum to noncitizens who unlawfully entered the United States between ports of entry on the southern border); E. Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922 (N.D. Cal. 2019) (enjoining policy that seeks to deny asylum to noncitizens who failed to apply for asylum in another country prior to seeking asylum in the United States), stay issued pending appeal , Barr v. E. Bay Sanctuary Covenant, 2019 WL 4292781 (Sept. 11, 2019), and an attempt to force asylum seekers to remain in Mexico while applying for asylum, see I nnovation Law Lab v. McAleenan, 924 F.3d 503 (9th Cir. 2019).

Affording Congress an Opportunity to Address Family Separation, Exec. Order No. 13841, 83 Fed. Reg. 29435 (June 20, 2018).

Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 84 Fed. Reg. 44,392, 44,403 (Aug. 23, 2019) (codified at 8 C.F.R. pts. 212 & 236 & 45 C.F.R. pt. 410) [hereinafter Custody of Alien Minors]; see also Muzaffar Chishti & Sarah Pierce, Trump Administration’s New Indefinite Family Detention Policy: Deterrence Not Guaranteed , Migration Pol’y Inst. (Sept. 26, 2018), https://www.migrationpolicy.org/article /trump-administration-new-indefinite-family-detention-policy [https://perma.cc/3PJG -GKDD] (noting the Trump Administration’s efforts to employ “mass family detention” as a deterrent to further migration); Miriam Jordan, Caitlin Dickerson & Michael D. Shear, Trump’s Plans to Deter Migrants Could Mean New ‘Voluntary’ Family Separations , N.Y. Times (Oct. 22, 2018), https://www.nytimes.com/2018/10/22/us/migrant-families-crossing-border -trump.html [https://perma.cc/R85A-MEZJ].

E.g. , Brief for Appellants at 32, Padilla v. U.S. Immigration & Customs Enf’t, No. 19-35565 (9th Cir. July 31, 2019), ECF No. 19-1.

Custody of Alien Minors, supra note 7, at 45,493.

Julia Preston, Detention Center Presented as Deterrent to Border Crossings , N.Y. Times (Dec. 15, 2014), https://www.nytimes.com/2014/12/16/us/homeland-security-chief-opens-largest -immigration-detention-center-in-us.html [https://perma.cc/L3FY-GT6D].

R.I.L-R. v. Johnson, 80 F. Supp. 3d 164, 175-76 (D.D.C. 2015).

Id. at 186-91.

Id. at 188-90.

See Matter of M-S-, 27 I. & N. Dec. 509, 509-10 (A.G. 2019) (eliminating the right of asylum seekers who establish a bona fide claim to asylum to seek release through a bond hearing). But see Padilla v. U.S. Immigration & Customs Enf’t, 387 F. Supp. 3d 1219, 1222-23, 1232 (W.D. Wash. 2019) (enjoining Matter of M-S- ). The author, along with others from the NWIRP, the American Immigration Council, and the ACLU, serves as counsel for the class in Padilla .

See, e.g. , Damus v. Nielsen, 313 F. Supp. 3d 317, 325 (D.D.C. 2018).

Ms. L. v. U.S. Immigration & Customs Enf’t, 310 F. Supp. 3d 1133, 1136-40 (S.D. Cal. 2018).

Dora Schriro , Immigration Detention Overview and Recommendations , U.S. Immigr. & Customs Enforcement 2 (Oct. 6, 2009), https://www.ice.gov/doclib/about/offices/odpp/pdf /ice-detention-rpt.pdf [https://perma.cc/548G-WVAS].

See J. Rachel Reyes, Immigration Detention: Recent Trends and Scholarship , Ctr. for Migration Stud . (Mar. 26, 2018), https://cmsny.org/publications/virtualbrief-detention/https://cmsny.org/publications/virtualbrief-detention/ [https://perma.cc/5U65-PM8L].

Id. ; see also H.R. Rep. No. 115-239, at 28 (2017) (recommending full funding for fiscal year 2018); Sarah Ferris et al., Negotiators Reach Deal ‘In Principle’ to Avert Shutdown , Politico (Feb. 11, 2019), https://www.politico.com/story/2019/02/11/shutdown-congress-border -security-1163824 [https://perma.cc/WR72-C2BV] (describing the 2019 compromise of 40,520 beds). ICE nevertheless detains far more noncitizens than Congress authorizes—as of August 10, 2019, it had nearly 50,000 people in its facilities. See Detention Statistics , U.S. Immigr. & Customs Enforcement (Oct. 26, 2019), https://www.ice.gov/detention-management [https://perma.cc/U6DY-ABUC].

Jennings v. Rodriguez, 138 S. Ct. 830, 861 (2018) (Breyer, J., dissenting).

See Ingrid Eagly, Steven Shafer & Jana Whalley, Detaining Families: A Study of Asylum Adjudication in Family Detention , 106 Calif. L. Rev. 785 , 842-45 (2018).

Declaration of David Hausman ¶ 8, Padilla v. U.S. Immigration & Customs Enf’t, No. 18-cv-00928 (W.D. Wash. May 28, 2019), ECF No. 132 (using federal data to calculate that bona fide asylum seekers who have entered the United States without inspection average five to six months in detention just to have their case heard before an immigration judge, and nearly a year if they appeal to the Board of Immigration Appeals).

See, e.g. , Rodriguez v. Robbins, 804 F.3d 1060, 1072 (9th Cir. 2015) (describing how noncitizens, including arriving noncitizens, are often detained for well over a year), rev’d sub nom. Jennings v. Rodriguez, 138 S. Ct. 830 (2018).

No End in Sight: Why Migrants Give Up on Their U.S. Immigration Cases , Southern Poverty L. Ctr. 27, 30, 36 (Oct. 3, 2018), https://www.splcenter.org/sites/default/files/leg_ijp _no_end_in_sight_2018_final_web.pdf [https://perma.cc/8GJ2-BSAV] (describing several instances of arriving noncitizens detained well over six months who did not pursue potential appeals because of prolonged detention).

Chishti & Pierce, supra note 7; Tom K. Wong, Do Family Separation and Detention Deter Immigration? , Ctr. for Am. Progress (July 24, 2018, 1:30 PM), https://www.americanprogress .org/issues/immigration/reports/2018/07/24/453660/family-separation-detention -deter-immigration [https://perma.cc/TN3C-32B6].

Jennings v. Rodriguez, 138 S. Ct. 830, 852 (2018).

Id. at 851-52.

See, e.g. , Lucy E. Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law 7-17 (1995) (detailing rising xenophobia and its sources in the mid- to late-nineteenth century, particularly in California); Erika Lee & Judy Yung, Angel Island: Immigrant Gateway to America 70-75 (2012) (same).

See sources cited supra note 28.

See, e.g. , Eugene Scott, Trump’s Most Insulting—and Violent—Language Is Often Reserved for Immigrants , Wash. Post (Oct. 2, 2019, 3:21 PM EST), https://www.washingtonpost.com /politics/2019/10/02/trumps-most-insulting-violent-language-is-often-reserved -immigrants [https://perma.cc/8MD7-ZM99].

See An Act Regulating Passenger Ships and Vessels, Pub. L. No. 15-46, 3 Stat. 488, 489 (1819); Robert E. Barde, Immigration at the Golden Gate: Passenger Ships, Exclusion, and Angel Island 54 (2008); Salyer , supra note 28 Error! No bookmark name given. , at 3.

See An Act Regulating Passenger Ships and Vessels, Pub. L. No. 15-46 § 4, 3 Stat. 488, 489 (1819)§ ; An Act to Regulate the Carriage of Passengers in Merchant Vessels, Pub. L. No. 29-16, 9 Stat. 127 (1847); An Act to Regulate the Carriage of Passengers in Steamships and Other Vessels, Pub. L. No. 33-213, 10 Stat. 715 (1855); see also Salyer , supra note 28, at 3 (“[T]he federal government assumed an accommodating and paternalistic role in the early history of immigration regulation, acting only to protect and to keep statistics on immigrants.”).

See An Act to Regulate the Carriage of Passengers in Steamships and Other Vessels, Pub. L. No. 33-213, § 17, 10 Stat. 715 (1855); sources cited supra notes 31-32. Local officials, however, often stepped in to inspect arriving noncitizens. As Robert Barde writes, local customs officials in San Francisco—the main point of entry for arriving Chinese immigrants—would use pretextual reasons to inspect arriving Chinese citizens. Barde , supra note 31, at 53-54.

Page Act, ch. 141, 18 Stat. 477, 477 (1875) (mandating imprisonment of Chinese and Japanese immigrants found after ship inspection to lack work permits); see also Salyer , supra note 28, at 3 (noting that “Congress did not pass any restrictive [immigration] legislation until 1875”). See generally Sucheng Chan, The Exclusion of Chinese Women 1870-1943 , in Entry Denied: Exclusion and the Chinese Community in America , 1882-1943, at 105-09 (1991) (discussing the effects of the Page Act).

See Lee & Yung , supra note 28, at 6, 75. As Lee and Yung write, the Page Act “served as an important step toward general Chinese exclusion.” Id. at 75.

Page Act § 2.

Chinese Exclusion Act, ch. 126, 22 Stat. 58, 59 (1882); Erika Lee , At America’s Gates: Chinese Immigration During the Exclusion Era 1882-1943, at 2-4 (2003).

Chinese Exclusion Act § 8.

Chinese Exclusion Act § 9; Barde , supra note 31, at 13-14 (describing the process of initial inspection aboard arriving passenger vessels). The “certificates” that this Section references permitted certain Chinese noncitizens present in the United States prior to the Chinese Exclusion Act to leave and obtain admission to the United States using a properly-issued certificate. See Chinese Exclusion Act § 4.

Barde , supra note 31, at 56-57.

Lee & Yung , supra note 28, at 10; see also Barde , supra note 31, at 59 (noting complaints among passenger-ship companies regarding the use of their ships as detention facilities).

Lee & Yung , supra note 28, at 10.

Lee , supra note 40, at 124.

Id. at 126-28; see also Barde , supra note 31, at 61-66 (describing in detail the detention shed on the docks, contemporaneous news coverage and perceptions of the shed, and complaints from detainees, immigration officials, and others); Lee & Yung , supra note 28, at 11 (same).

Lee & Yung , supra note 28, at 31-35; Lee , supra note 40, at 77-81.

Lee & Yung , supra note 28, at 35.

Lee , supra note 40, at 80-81.

See generally Lee & Yung , supra note 28, at 35-49; Salyer , supra note 28, at 58-68, 139-52; H. M. Lai, Island of Immortals: Chinese Immigrants and the Angel Island Immigration Station , 57 Cal. Hist. 88, 98-99 (1978).

See infra Part II.B (detailing the brief duration of detention during this period).

Chinese Exclusion Act, ch. 126 § 9, 22 Stat. 58 (1882).

Act of Mar. 3, 1903, Pub. L. No. 57-162, § 16, 32 Stat. 1213, 1217.

See Act of Feb. 5, 1917, Pub. L. No. 64-301, § 15, 39 Stat. 874, 885.

See Immigration and Nationality Act, Pub. L. No. 82-414, §§ 232, 235, 66 Stat. 163, 196, 198-200 (1952).

See supra note 28.

See Lee , supra note 40, at 81-83 ; see also Lee & Yung , supra note 28 Error! No bookmark name given. , at 38 (“Both public opinion and medical theory assumed that Asians were more susceptible to dangerous diseases and therefore posed a greater health risk to the public.”).

In re Chow Goo Pooi, 25 F. 77, 81 (C.C. Cal. 1884) (construing the Chinese Exclusion Act of 1882 to authorize the detention of arriving Chinese to determine their admissibility, and holding that the right of habeas corpus extended to Chinese passengers detained aboard arriving ships); see also United States v. Sing Tuck, 194 U.S. 161, 168-70 (1904) (upholding detention of habeas corpus petitioner alleged to be a U.S. citizen where the examination process was designed “to avoid the hardship of a long detention”).

See, e.g. , Clement L. Bouve , A Treatise on the Laws Governing and the Exclusion and Expulsion of Aliens in the United States 616 (1912) (“The arrest or temporary detention of an alien in such proceedings is no more than a necessary incident thereof, as part of the means required to give effect to the acts of exclusion or expulsion passed by Congress in the exercise of its constitutional right to exclude or expel . . . .”); William C. Van Vleck , The Administrative Control of Aliens 8 (1932) (noting that under the Chinese Exclusion Act of 1882, “immigration officers were empowered to remove aliens applying for admission to detention quarters while their inspection was being completed”).

Id. at 237.

Id. at 235.

See, e.g. , Declaration of David Hausman, supra note 23, at ¶ 8 (noting that, according to data kept by the Executive Office for Immigration Review, asylum-seekers who recently crossed the border and were detained during their removal proceedings experienced a “median case length . . . [of] 171 days if neither the individual nor the government appealed to the BIA, or approximately five months. Where a party did appeal to the BIA, the median case length was 343 days, or more than 11 months.”).

Barde , supra note 31, at 67.

Robert Barde & Gustavo J. Bobonis, Detention at Angel Island: First Empirical Evidence , 30 Soc. Sci. Hist. 103, 113 (2006).

See, e.g. , United States v. Ju Toy, 198 U.S. 253 (1905); Salyer, supra note 28, at 112-16.

Barde & Bobonis, supra note 68, at 103, 113.

Id. ; see also Lai, supra note 53, at 98 (“By the mid-1920’s, however, the delay averaged about two or three weeks.”); Salyer, supra note 28, at 63 (“Most Chinese stayed from a few days to a few weeks, but some remained confined in these quarters for as long as six months.”).

This figure excludes those who were merely inspected aboard a passenger ship and permitted to land without detention on Angel Island.

Barde & Bobonis, supra note 68, at 107. By contrast, members of the classes in Jennings —noncitizens in detention for over six months (many of whom were asylum seekers who arrived at the border)—”number in the thousands” and even tens of thousands. Jennings v. Rodriguez, 138 S. Ct. 830, 860 (2018) (Breyer, J., dissenting); see also Brief of 43 Social Science Researchers and Professors as Amici Curiae in Support of Respondents at 6, 8, Jennings , 138 S. Ct. 830 (No. 15-1204).

E.g. , Rodriguez v. Robbins, 804 F.3d 1060, 1072 (9th Cir. 2015), rev’d sub nom Jennings v. Rodriguez, 138 S. Ct. at 852; Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015), vacated sub nom Jennings v. Rodriguez, 138 S. Ct. at 852; Rodriguez v. Nielsen, No. 18-cv-04187-TSH, 2019 U.S. Dist. LEXIS 4228, at *18 (N.D. Cal. Jan. 7, 2019); Perez v. Decker, No. 18-CV-5279 (VEC), 2018 WL 3991497, at *4 (S.D.N.Y. Aug. 20, 2018) (holding that the primary factor in determining whether continued detention requires a bond hearing is whether the noncitizen has been detained for six months); Sajous v. Decker, No. 18-CV-2447 (AJN), 2018 WL 2357266, at *10 (S.D.N.Y. May 23, 2018) (“[D]etention that has lasted longer than six months is more likely to be ‘unreasonable,’ and thus contrary to due process, than detention of less than six months.”).

See, e.g. , Barde & Bobonis, supra note 68, at 106.

Lee & Yung , supra note 28, at 8.

Barde , supra note 31, at 49. After fighting her case for such a long period, she was released on bond and permitted to enter the United States. Id.

Salyer , supra note 28, at 149-50.

Lee & Yung, supra note 28, at 8.

Salyer , supra note 28, at 26, 49.

Barde , supra note 31, at 49.

In re Tsuie Shee, 218 F. 256, 259 (N.D. Cal. 1914) (ordering arriving Chinese passenger released pending determination of the passenger’s’ appeal); In re Chin Wah, 182 F. 256, 258 (D. Or. 1910) (holding that court had discretionary power to release noncitizen on bail during habeas corpus proceedings, and observing that “[p]rior to 1892 it was a common practice, when a Chinese person, seeking admission, but denied the right to land, was brought before a court under a writ of habeas corpus, for the court to admit him to bail pending the hearing”); In re Chow Goo Pooi, 25 F. 77, 78 (CC Cal. 1884) (“When his body, in obedience to the writ, is produced in court, we are also of opinion that the control of his person remains with the court, and that he may be committed to the custody of the marshal, or be held to bail to await the decision of the court.”); B ouve, supra note 62, at 257-58 (noting that federal appeals courts possessed the “ancient power to release a person” while habeas corpus proceedings continued, and that such courts were more likely to exercise this power where a habeas petition could not be “determined expeditiously”); see also Mary Roberts Coolidge , C hinese Immigration 212 (1909) ( documenting a sharp increase of habeas corpus cases in the courts from Chinese immigrants) .

See sources cited supra note 82; see also United States v. Sing Tuck, 194 U.S. 161, 168-70 (1904) (upholding detention of habeas corpus petitioner alleged to be a U.S. citizen where the examination process was designed “to avoid the hardship of a long detention”).

Since these early years of immigration detention, detention has remained relatively modest in scope. As noted above, its use has skyrocketed in the last two decades. See supra Section I.B.

See Ingrid Eagly & Steven Shafer , Access to Counsel in Immigration Court , Am. Immigr. Council 2-3 ( Sept. 2016), https://www.americanimmigrationcouncil.org/sites/default/files/research /access_to_counsel_in_immigration_court.pdf [ https://perma.cc/D856-ATYV ].

See Kansas v. Crane, 534 U.S. 407, 412 (2002).

Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (internal quotation marks omitted).

Id. at 701.

Id. at 699.

538 U.S. 510 (2003).

Id. at 513 (emphasis added).

Id. at 532 (Kennedy, J., concurring).

See, e.g. , Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018). How the Supreme Court will address these questions remains to be seen. Since Justice Kavanaugh’s confirmation to the Court, it has addressed only a question of statutory interpretation regarding immigration detention, and not any constitutional questions. See Nielsen v. Preap, 139 S. Ct. 954 (2019). In a concurrence in that case, Justice Kavanaugh suggested that Congress enjoys broad power to order the mandatory detention of noncitizens, but also noted the case did not address how long noncitizens may be detained before constitutional concerns arise. Id. at 972-73.

Zadvydas , 533 U.S. at 690-91.

Lawrence v. Texas, 539 U.S. 558, 572 (2003) (alteration omitted) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 857 (1998) (Kennedy, J., concurring)).

Jennings v. Rodriguez, 138 S. Ct. 830, 863-65 (2018) (Breyer, J., dissenting).

533 U.S. 289, 301-08 (2001).

Id. at 306-07.

Id. at 305.

See, e.g. , Thuraissigiam v. U.S. Dep’t of Homeland Sec., 917 F.3d 1097, 1115 (9th Cir. 2019) (“Because in the finality era the Court permitted even arriving noncitizens to invoke habeas review, we conclude that Thuraissigiam, who was arrested within the United States, may invoke the Suspension Clause.”).

St. Cyr , 533 U.S. at 301 (quoting Felker v. Turpin, 518 U.S. 651, 664 (1996)).

See id. at 305.

Youngstown Sheet & Tube Co. v. Sawyer ( Steel Seizure ), 343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring); see also Zivotofsky v. Kerry, 135 S. Ct. 2076, 2091-94 (2015).

Marsh v. Chambers, 463 U.S. 783, 790 (1983); Walz v. Tax Comm’n, 397 U.S. 664, 677-78 (1970).

Oregon v. Ice, 555 U.S. 160, 168-69 (2009).

See, e.g. , Medina v. California, 505 U.S. 437, 460 (1992) (Blackmun, J., dissenting); Schad v. Arizona, 501 U.S. 624, 640-43 (1991) (plurality opinion); Patterson v. New York, 432 U.S. 197, 202 (1977); Roe v. Wade, 410 U.S. 113, 129-47 (1973).

See Jennings v. Rodriguez, 138 S. Ct. 830 , 851 (2018).

E.g. , Reid v. Donelan, 390 F.Supp.3d 201, 216-19 (D. Mass. July 9, 2019); Rodriguez v. Nielsen, No. 18-cv-04187-TSH, 2019 U.S. Dist. LEXIS 4228, at *18 (N.D. Cal. Jan. 7, 2019).

See supra note 14.

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• ELP Annual Assessments
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• Curriculum Support Materials
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• Foster Care Liaison Update
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• State and Federal Requirements
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• Project AWARE
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• Prevention/Intervention SAPISP Coordinators
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• Continuity of Operations Plan (COOP)
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• The Superintendent's High School Art Show
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• School Orientation and Mobility Specialist
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• Fingerprint Office Locations
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• Small District Energy Assessment Grant
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