Preventive Detention

When can the state imprison people without trial? That question lurks beneath many important civil rights issues of our time, including the constitutionality of coronavirus lockdowns, the “caging” of children by immigration authorities, the indefinite detention of enemy combatants at Guantanamo Bay, and the overcrowded jails in places like Ferguson, Missouri. We will examine these practices and the constitutional law that binds them together in the eyes of the law.

The course will begin with an overview of the legal principles involved whenever the state imprisons anyone, with a focus on 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 four weeks of the course - pre-trial detention, detention of people with mental illnesses, detention of people convicted of sex offenses, quarantines, and curfews. We will then more intensively study two types of preventive detention - immigration detention, and detention on national security grounds – spending four weeks on each. We will study these areas primarily by reading cases, though we will also read court filings, newspaper articles, argument transcripts, blog posts, and other materials that provide additional context. Each student will write three short (500-650 words) papers critiquing or defending arguments from one of the cases we have read, in the style of an appellate brief. Each student will also conduct one appellate oral argument and judge another. Argument and judging assignemnts will be randomly distributed out of a pool composed of the cases we will read for class.