Where Congress eliminates executive discretion, courts remain as defenders of personal liberty in individual situations.1
Section 236(c) of the Immigration and Nationality Act imposes mandatory detention, pending removal proceedings, on noncitizens convicted of any of a number of crimes specified by the provision, including an aggravated felony.2 The provision contains no opportunity for any individualized determination of the necessity of detention before its imposition.3 Even lawful permanent residents who were convicted of relatively minor and nonviolent criminal offenses, who have meritorious challenges to removability and thus may not even be removed, and who are neither flight risks nor dangerous are subject to mandatory detention under section 236(c)4 The length of detention under the statute is indeterminate and often prolonged, particularly for lawful permanent residents, many of whom have established significant social, familial, and economic connections in the United States.5
In Demore v. Kim,6 the Supreme Court of the United States considered a challenge to the constitutionality of section 236(c).7 Hyung Joon Kim, a citizen of the Republic of South Korea, entered the United States in 1984 at the age of six and became a lawful permanent resident two years later.8 He was convicted of first degree burglary in 1996, and one year later he was convicted of "petty theft with priors."9 On the basis of these convictions, the Immigration and Naturalization Service detained him pursuant to section 236(c) and charged him with being removable.10 Kim did not dispute that one may be detained pending removal proceedings, but instead asserted that due process "conditions a potentially lengthyPage 898 detention on a hearing and an impartial decision-maker's finding that detention is necessary to a governmental purpose."11 The Court rejected his contentions and upheld the statute.12
This Note will explore both the deficiencies in the majority's decision and its departure from established precedent. First, this Note will analyze the Court's prior decisions concerning the freedom from physical restraint by the government. Next, it will review two past decisions by the Court on which the majority in Demore v. Kim relies, upholding the detention of noncitizens in two separate contexts. After reviewing the Seventh Circuit's decision in upholding section 236(c), this Note will then consider the Court's recent decision in Zadvydas v. Davis,13 in which the Court avoided a "serious constitutional concer[n]" by construing a post-removal-period statute to include a reasonable time limitation so as not to permit indefinite and potentially permanent detention for noncitizens.14 This Note will then review the decisions of four separate courts of appeals, which subsequently held section 236(c) to be unconstitutional in some form because of the Court's decision in Zadvydas. Finally, this Note will review the majority, concurring, and dissenting opinions in Demore v. Kim and present an analysis of the Court's decision.
Because of the Court's neglect of years of precedent concerning the limitations on the government's authority to confine citizens and noncitizens alike and its failure to distinguish its decision in Zadvydas in any material way, Demore v. Kim was wrongly decided. A proper characterization of the liberty interest at stake and a meaningful due process analysis reveal the constitutional infirmities of mandatory detention under section 236(c). Because it categorically infringes upon the rights of a broad class of individuals to be free from physical restraint by the government and provides no individualized determinations as to whether detention is even necessary, section 236(c), in its application to lawful permanent residents, violates the substantive and procedural components of due process.
In Zadvydas v. Davis, the Supreme Court recently confirmed, in the context of detention of noncitizens, that "[fjreedom from imprisonment- from government custody, detention, or other forms of physical restraint-Page 899 lies at the heart of the liberty that [the Due Process] Clause protects."15 The Court summarized the decisions concerning this liberty interest in avoiding physical restraint by the government, applicable to citizens and noncitizens alike, stating that "detention violates [due process] unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain . . . 'narrow' [or] nonpunitive 'circumstances,' where a special justification . . . outweighs the 'individual's constitutionally protected interest in avoiding physical restraint.'"16 According to the Court, these cases demonstrate that due process requires, at the very least, an individualized determination of the necessity of detention in light of the actual purposes of the statute.17
The Court's decision in United States v. Salerno,18 which concerned the pretrial detention of criminal defendants, demonstrates that such an individual's "strong interest in liberty" may be overcome only in certain limited circumstances and that adequate procedural protections are required.19 The Court considered the constitutionality of the Bail Reform Act of 1984,20 which permitted "a federal court to detain an arrestee pending trial if the Government demonstrate [d] by clear and convincing evidence after an adversary hearing that no release conditions 'will reasonably assure'" the safety of another individual or the community as a whole.21 The Act required a judicial officer to resolve whether detention was appropriate in each individual case22 and provided several procedural protections at this hearing.23 Many considerations specific to thePage 900 individual guided the judicial officer in his or her determination,24 and appellate review was available if detention was ordered.25
The respondents in this case challenged the Act as facially unconstitutional.26 The respondents argued that because detention authorized under the Act was equivalent to punishment before trial, the Act contravened the substantive component of due process.27 The Court sought to determine whether the "restriction on liberty [under the Act] constitutes impermissible punishment or permissible regulation,"28 and, if regulatory, whether detention under the statute "appears excessive in relation" to its purposes.29 Examining legislative intent, the Court concluded that Congress did not explicitly intend detention under the Act to be punitive and that the Act was regulatory in nature since its purpose was to prevent harm to the community.30 Furthermore, the Court held that detention under the Act was not excessive in relation to this regulatory goal of Congress, primarily because the duration of pretrial detention was limited and the arrestee was afforded a prompt detention hearing.31 The Court rejected the respondents' contention of an absolute constitutional prohibition against restriction of the right to liberty, stating that "sufficiently compelling governmental interests can justify detention of dangerous persons."32
Despite "the importance and fundamental nature" of the right to liberty in these circumstances, the Act "narrowly focuses on a particularly acute problem in which the Government interests are overwhelming."33 Therefore, the "careful delineation of the circumstances under which detention will be permitted" satisfied the requirements of substantive due process.34 The procedures under which the arrestee was determined to be dangerous were devised to ensure that this determination was accurate,35Page 901 and "the circumstances under which detention [was] sought [was limited] to the most serious of crimes."36
In the separate context of involuntary civil confinement, the Supreme Court has required an individual determination of its necessity. In Foucha v. Louisiana,37 the Court struck down, on due process grounds, a statute that required commitment of an individual to a psychiatric hospital after having been found not guilty by reason of insanity in a criminal case and that permitted continued confinement until the committed individual proved that he or she was not dangerous.38 After an individual is found not guilty of committing a criminal act by reason of insanity, the Court stated, it is permissible to assume that "the defendant was still mentally ill and dangerous and hence could be committed."39 However, the committed individual should be released when he or she is no longer insane or dangerous.40 Thus, even if confinement was initially constitutional, it could not continue if the reasons for commitment no longer existed.41 For this reason and because "[d]ue process requires that the nature of commitment bear some reasonable relation to the purpose for which the individual is committed,"42 the individual is "entitled to constitutionally adequate procedures to establish the grounds for his confinement."43 Also, in the absence of criminal liability, only "in certain narrow circumstances" could those who pose a danger to the community be subject to confinement44
According to the...