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HLS Review | Segregation by Citizenship, March 2019
In 1954, Jacob Javits, then a New York representative to Congress, "protested the use of prisons" on the ground that detaining noncitizens in penal institutions was "disruptive . . . of our social concept of the purposes of a prison."90

There are two ways to understand this objection. As Javits argued to the press, housing detainees in prisons scrambled the distinction between criminal and civil incarceration, casting all immigrants as criminals.91 Confining detainees in prisons also violated prevailing norms around the use of penal institutions. The mid-twentieth century was the height of the rehabilitative ideal, a theory of punishment in which prisons serve to reform criminals through individualized, therapeutic treatment.92 This conception of punishment presumed prisoners' eventual release and reintegration into the United States.93 Holding detainees -- a class of people not yet admitted into the polity, who might ultimately be expelled -- in prisons undermined this vision of "corrections" and conflicted with dominant assumptions about the relationship between prisons and American society.

BONUS popular, modern fallacy:
54 See LUCY E. SALYER, LAWS HARSH AS TIGERS: CHINESE IMMIGRANTS AND THE SHAPING OF MODERN IMMIGRATION LAW 3 (1995). As Professor Hiroshi Motomura has noted, federal laws regulating the movement of "free blacks and slaves" can also be understood as early immigration laws. HIROSHI MOTOMURA, IMMIGRATION OUTSIDE THE LAW 65 (2014).


Diversity is the key to economic and political evolution.
by Cat on Tue Apr 9th, 2019 at 08:52:32 PM EST
92 See CHARLES BRIGHT, THE POWERS THAT PUNISH: PRISON AND POLITICS IN THE ERA OF THE "BIG HOUSE," 1920-1955, at 306-07 (1996); Edgardo Rotman, The Failure of Reform: United States, 1865-1965, in THE OXFORD HISTORY OF THE PRISON: THE PRACTICE OF PUNISHMENT IN WESTERN SOCIETY 169, 169 (Norval Morris & David J. Rothman eds., 1995). I do not mean to endorse the rehabilitative ideal, nor to suggest that it was ever in fact achieved, but rather to highlight the conflict between a model of punishment in which prisoners are presumed reformable and one in which they are presumed deportable.

Hence the deterioration of a thesis, commanding equal protection of US citizens and "aliens".

Diversity is the key to economic and political evolution.

by Cat on Tue Apr 9th, 2019 at 09:05:20 PM EST
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