Preventive Detention

When can the state imprison people without trial? That question lurks beneath many important civil rights issues of our time, from the recent massive increase in immigration detention and the President’s invocation of the Alien Enemies Act to the growing confinement of unhoused people, overcrowded urban jails, quarantines for infectious disease, and more. We will examine these practices, the constitutional law that binds them together, and the law governing challenges to them. 

The course will begin with an overview of the legal principles involved whenever the state imprisons anyone, with an eye toward examining the circumstances under which we might expect the law to allow imprisonment without the procedures utilized in the criminal process. We will then survey different types of imprisonment without trial. We will briefly cover several types in the first portion of the course—pre-trial criminal detention, detention of people with mental illnesses, detention of sex offenders, quarantines, and curfews. During the second portion, we will focus more intensively on immigration detention, and then in the final portion we will focus more on national security-based detention. Finally, we will study habeas corpus, which is the primary mechanism by which the law permits challenges to imprisonment without trial. We will study these topics primarily by reading cases, though we will also read court filings, news accounts, argument transcripts, and other materials that provide greater context. 
 
Each student will write three short papers during the semester, and then (along with other students for that same week) lead class discussion for a portion of class. In addition, during the semester each student will conduct an appellate oral argument and serve as a judge for an oral argument.