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Genealogies of Immigration Detention: Migration Control and the Shifting Boundaries Between the ‘Penal’ and the ‘Preventive’ State

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Abstract

The aim of this article is to explore the ambiguous legal status of immigration detention by discussing the main theoretical perspectives on its nature and the functions it plays in contemporary migration policies. After presenting a typological and genealogical reconstruction of immigration detention, the article contends that it should not be seen as being related either to the politics of ‘exception’ or to the expanding reach of ‘penal’ power in a context of mass migration. Instead, the argument presented here is that immigration detention exhibits the characteristics of preventive measures typically related to the exercise of police powers and that its increased role in migration policies should be read in the wider framework of the shifting boundaries between the ‘penal’ and the ‘preventive’ state in contemporary societies.

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... The security rationale is rooted in the law stating that people with a criminal record or those who seriously threaten public order or other persons can be detained. Thus, this rationale covers simultaneously punitive and preventive dimensions (Campesi, 2020). On the one hand, the priority to detain people with criminal records reflects a punitive logic related to the moral perception of these non-citizens as the most 'undeserving' . ...
... First, it consists of suspecting that someone will abscond to avoid deportation. In this logic, irregular migrants and denied asylum-seekers are regarded as genuinely untrustworthy individuals (Campesi, 2020). This tool aims to ensure the presence of the person concerned for deportation and disciplines those who don't cooperate with their removal (Majcher & De Senarclens, 2014). ...
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... Decision-makers' interdependent relationships with these actors vary from one canton to another but directly shape the workload of immigration bureaucracies and the way they use their discretion regarding immigration detention. This implies that, while initially aimed at enforcing removals, cantonal use of immigration detention is also marked by other rationales (see C. Achermann, 2021), such as reducing expenses or fighting criminality, mixing both punitive (sanctioning illegality of stay) and preventive (crime control) logic (Campesi, 2020;Campesi & Fabini, 2019;Rezzonico, 2020). ...
... Their varying types and properties in each canton may lead to different uses of immigration detention. This reliance on other SLBs implies that while they initially aim to enforce removals, immigration detention decisions are also marked by the treatment of other "public problems" and follow additional logics, such as the fight against criminality, confirming its punitive function (Campesi, 2020;Leerkes & Broeders, 2010). ...
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Genealogy "opposes itself to the search for "origins"". "The development of humanity is a series of interpretations. The role of genealogy is to record its history: the history of morals, ideals, and metaphysical concepts, the history of the concept of liberty or the ascetic life". "Among the philosophers idiosyncrasies is a complete denial of the body". "Where religions once demanded the sacrifice of bodies, knowledge now calls for experimentation on ourselves, calls us to the sacrifice of the subject of knowledge. The desire for knowledge has been transformed among us into a passion which fears no sacrifice, which fears nothing but its own extinction. It may be that mankind will eventually perish from this passion for knowledge. If not through passion, than through weakness."
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From Mexico to the Bahamas, Mauritania to Lebanon, Turkey to Saudi Arabia, South Africa to Indonesia, Malaysia to Thailand, immigration-related detention has become an established policy apparatus that counts on dedicated facilities and burgeoning institutional bureaucracies. Until relatively recently, however, detention appears to have been largely an ad hoc tool, employed mainly by wealthy states in exigent circumstances. This paper uses concepts from diffusion theory to detail the history of key policy events in several important immigration destination countries that led to the spreading of detention practices during the last 30 years and assesses some of the motives that appear to have encouraged this phenomenon. The paper also endeavors to place the United States at the center of this story because its policy decisions appear to have played an important role in encouraging the process of policy innovation, imitation, and imposition that has helped give rise to today’s global immigration detention phenomenon. Nevertheless, many US offshore practices have not received nearly the same attention as those of other important destination countries. More broadly, in telling this story, this paper seeks to flesh out some of the larger policy implications of the externalization of immigration control regimes. Just as offshore interdiction and detention schemes raise important questions about custody, accountability, and sovereignty, they should also spur questions over where responsibility for the wellbeing of migrants begins and ends.
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Prevention ist der Versuch, gesellschaftliche Strukturprobleme in den Griff zu bekom- men. Das Strafrecht hat von diesem Versuch gelernt. Es rustet auf alien Ebenen des Kri minaljustizsystems auf und suggeriert gesellschaftspolitische Steuerungskraft. Die Politik profitiert von dieser praventiven Aufriistung: Sie kann politische Verantwortlichkeit zuruckweisen, politische Handlungsfahigkeit demonstrieren und gesellschaftliche Werte pflegen, vollkommen unverbindlich, ohne Willen zur Umsetzung. Der Autor kritisiert diese ideologische Aufrustung des Strafrechts und mahnt die Wanning rechtsstaatlicher Grundlagen des Straf- und Strafprozesrechts an.
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In recent years, and especially in reaction to actual and perceived security threats, there has been a growing interest in so-called preventive detention or preventive punishment, and an equally growing reaction against it. And although much of the reaction is well-founded, it may at the same time be mis-targeted. Prevention, broadly speaking, pervades the law in general, and the criminal law in particular. And so does the imposition on restrictions based on probabilities and predictions. Once we understand that the law enforcement techniques often criticized for their preventive, probabilistic, and predictive character share many goals and methods with the routine operation of the criminal law, we are better situated to identify more precisely the true source of the concerns.
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This article analyses contemporary trends in the deportation of undocumented immigrants, focusing on the past and present situation of the centres de rétention administrative, French confinement facilities where deportees await their removal. Studying the differential enforcement of legal protections for this particular population, we argue that the `rule of law', though integrated with the everyday practice of deportation, has been turned into a way to more easily `govern' the deported population.