Upcoming Scholarship on Re-Conceptualizing Procedures as Punishment

Staying on the theme of my previous post, I thought I might as well take the opportunity to do a little bit of shameless promotion for the UCLA Law Review.  There are a couple of upcoming articles that do a good job of arguing that non-punitive procedural measures should be re-conceptualized as punitive.

Jonathan Hafetz's upcoming article is Detention Without End?: Reexamining the Indefinite Confinement of Terrorism Suspects Through the Lens of Criminal Sentencing.  Here is the abstract:

While there has been a great deal of focus on who may be detained in the armed conflict with al Qaeda and associated forces, (the so-called “war on terror”), there has been relatively little consideration of how long individuals may be held. The Article provides a new approach to this issue. It argues that review of long-term terrorism detentions should be addressed not merely through application of the laws of war, which permit detention until the end of the conflict, but should also draw upon principles rooted in criminal sentencing. 

The Article makes two main points: first, that criminal sentencing highlights the value of a judicial proceeding focused on the length of detention; and second that the United States should develop a detention standard that incorporates a broader range of factors about an individual, his background, and past conduct to assess whether he should continue to be held. This standard may be utilized whether review of continued detention takes place in a judicial or an administrative proceeding. 

The Article not only seeks practical solutions to the seemingly intractable problems posed by Guantanamo. It also attempts to re-frame the larger debate surrounding the war on terrorism, by demonstrating how traditional legal concepts, such as those governing the detention of combatants, must be adapted given the nature of the armed conflict the U.S. is waging.

César Cuauhtémoc García Hernández's upcoming article is Immigration Detention as Punishment.  Here is the abstract:

Courts and commentators have long assumed, without significant analysis, that immigration detention is a form of civil confinement merely because the immigration proceedings of which it is part are deemed civil. This Article challenges that deeply held assumption. It harnesses the Supreme Court’s instruction that detention’s civil or penal character turns on legislative intent and, buttressed by theoretical understandings of punishment, contends that immigration detention — apart from the deportation that often results — itself constitutes penal incarceration. In particular, legislation enacted over roughly fifteen years in the 1980s and 1990s indicates a palpable desire to wield immigration detention as a tool in fighting the nation’s burgeoning war on drugs by sanctioning and stigmatizing criminal behavior. Indeed, the immigration detention system that has developed has accomplished Congress’s punitive goal: immigration detention is experienced as severe and its occupants viewed as dangerous. Remaining true to the Court’s guidance to draw formalist boundaries between civil and penal confinement, immigration detention should be conceptualized as punishment. Rather than subjecting immigration detention to the constitutional limitations imposed by criminal procedure, this Article contends that, learning from the nation’s failed experience with mass penal incarceration, policymakers should step back from immigration detention’s punitive origins and create a truly civil immigration detention system.

Both of these articles argue that procedures that are currently deemed to be non-punitive should be considered punitive in light of practical realities and the underlying motivations for the laws.  The articles do a good job of exploring the realities and motivations for these laws and present convincing cases that viewing these laws as non-punitive requires selective, if not deceptive, observation of the facts.