Prolonged Detention Research Articles

The Faulty Arguments Behind Immigration Detainers

In Arizona v. United States, Supreme Court made clear that states may not enforce civil immigration law unless explicitly authorized by Congress. But while generally providing a ringing endorsement of federal power, Arizona also limits power of federal executive to pursue immigration enforcement objectives. The executive branch, like states, has an obligation to implement the system Congress created and none other. The Arizona opinion leaves little doubt that immigration detainers do not comport with system Congress created. Detainers also raise substantial constitutional questions, including Fourth Amendment issue raised by prolonged detention — precise concern raised by justices concerning implementation of Section 2(B) of SB 1070. It is clear that such detention must comply with Fourth Amendment; it must be supported by probable cause and meet independent requirement of prompt neutral review. Federal immigration detainers cannot support prolonged detention. Those jurisdictions that have resisted immigration detainers have done so with sound legal justification. But some of these jurisdictions simultaneously assert a power to selectively comply with detainers. Given legal problems attendant to use of detainers, jurisdictions wanting to honor immigration detainers in some cases must do more than focus on seriousness of offense of which arrestees are accused. At a minimum, they must be sure that honoring a detainer in a particular case complies not only with the system Congress created for immigration enforcement, but also with state and federal constitutional requirements. By honoring immigration detainers that do not meet these threshold legal requirements, local officials and localities risk civil liability.

Economic man and diffused sovereignty: a critique of Australia’s asylum regime

Governing asylum, especially in Western migration zones, is correctly understood as an expression of centralized state power, or sovereignty. Still, there is much to learn about asylum regimes by turning critical attention to how sovereignty is de-centralized. This critique focuses on Australia where sovereign power is diffused into privatized detention, outsourced decision-making, and offshore processing. The reliance on diffused sovereignty, the article contends, is a maneuver by the state as it attempts to evade legal obligations enshrined in refugee law and human rights. As discussed throughout, economic mentalities figure prominently in the Australian asylum system. In particular, the notion of economic man continues to shape the government’s perception of asylum seekers as being highly rational and responsible, thus manageable by way of deterrence and prolonged detention. Special attention is given to recent disputes between the High Court and the then Gillard government with respect to the processing of refugees.

The Epiphany Approach to Habeas Corpus During the Military Commissions Circus

With the recent hunger strikes by prisoners at Guantanamo Bay that have captured global attention, in April 2013, President Obama vowed to eliminate the indeterminate detention facility and ostensibly the extra-judicial tribunal system that were initiated during the Bush Administration. It all began pursuant to Congress’s Authorization for Military Force that empowered the President to respond to individuals, groups, and states with a connection to 9/11, the Executive assumed carte blanche for a detention system that whittled down thousands of militant-detainees inside Afghanistan to several hundred “worst of the worst” who were transported across the Atlantic Ocean to a makeshift prison at the U.S. military base on Guantanamo Bay, Cuba, a location with an ambiguous legal status. The sweeping Commander in Chief authority commingled detainees who should have had distinct classifications under international law, resulted in edicts that directed coercive interrogation methods to garner “evidence,” imposed prolonged detention without explanation or proof of guilt, denied individual liberty and human rights protections to foreigners that would have been afforded to nationals, downplayed torture and Geneva Convention violations as unintended incidentals to mandatory programs that would preempt security threats, and exploited rhetorical discourse of fear to justify the system. However, after five years of indefinite detentions without clear cause, the Supreme Court held that the President did not possess the constitutional authority to unilaterally constitute the tribunals. After the tribunals began to regularly try suspects without interruption, scholars and some attorneys and military officers involved in the secretive tribunal process, condemned the awry procedures and evidentiary rules that guaranteed guilt, and even went so far as to deem them “kangaroo courts.” With only six defendants convicted in the military commissions system through March 2013, this article attributes the distance between public perception and successful convictions to the Executive’s ability to shepherd discourse by casting unchallenged assumptions of pervasive peril, which abets an unchecked power and dodges scrutiny with national security prerogatives. The system upended civilized legal procedures and human rights for over a decade. Reactive common law courts struggled to check the system, but could only gradually rebuild human rights protections closer to the point of origin by periodically visiting detainee appeals. Do false perceptions about the level of peril indirectly initiate a process to deny habeas corpus?

Seeking Asylum—Trauma, Mental Health, and Human Rights: An Australian Perspective

Asylum seekers represent a highly traumatized group with experiences of systematic oppression, loss, displacement, and exposure to violence. Around the world many are viewed with distrust and anxiety. The Australian response to asylum seekers is one that has used prolonged detention with significant negative impact on mental health. This has prompted much social debate and the involvement of clinicians and researchers in advocating for the human rights of asylum seekers. This article reviews the impact of mandatory prolonged detention on the mental health of asylum seekers and the significance of this for recovery and adaption. It concludes that the mandatory detention of high-risk and oppressed groups compounds trauma, with a potential long-term negative impact on mental health.

Mandatory assessment of drug users in Malaysia: Implications on human rights

Aim: The study is founded upon a critical analysis of the extent to which the mandatory drug assessment in funneling drug users under Malaysia's compulsory treatment and rehabilitation programme is consistent with the principles of human rights guaranteed under the Malaysian Constitution.Method: Empirical qualitative data from a case study encompassing direct observations of natural sites, a focus group comprising former and recovering drug users, secondary data from official documents and case files.Results: Findings show that the mandatory drug assessment of drug users is subject to arbitrary arrest, unnecessary prolonged detention, lack of medical assistance and non-compliance to due process.Conclusions: The mandatory drug assessment of drug users in Malaysia entails serious infringements of the principles of human rights.

Canine Sniffs and Policing the Drug War

The war on drugs has resulted in numerous policing reforms, partly a function of policy established through the court system. In Illinois v. Caballes (2005), the Supreme Court held that a canine sniff of a vehicle’s exterior is not a ‘‘search,’’ but acknowledged that a prolonged detention could result in a Fourth Amendment violation. This study examines the universe of federal appellate court decisions involving canine sniffs postdating the Caballes decision—a period spanning more than 4 years. Results show that court decisions have largely focused on motorist stops, while only a minority of cases has involved canine sniffs of residences. Additionally, courts have usually held that a canine sniff occurring during a prolonged vehicle stop is not an unreasonable seizure. However, in limited contexts police questioning and the extent of the roadside detention can result in a Fourth Amendment violation. Although one’s home is generally afforded the highest level of constitutional protection, appellate courts have ruled that canine sniffs of residences are less intrusive than technologically assisted searches. On the whole, findings reveal an overall suppression rate of 10%. Policy implications surrounding the use of canines in vehicle stops and residential searches are addressed.

The meaning and mental health consequences of long-term immigration detention for people seeking asylum

The aim of the present research was to examine the experience of extended periods of immigration detention from the perspective of previously detained asylum seekers and to identify the consequences of these experiences for life after release. The study sample comprised seventeen adult refugees (sixteen male and one female; average age 42 years), who had been held in immigration detention funded by the Australian government for on average three years and two months. They were interviewed on average three years and eight months following their release and had been granted permanent visa status or such status was imminent. The study employed a combination of qualitative and quantitative methods to explore detention and post-detention experiences, and mental health some years after release. The qualitative component consisted of semi-structured interviews exploring psychological well-being, daily life, significant events, relationships, and ways of coping throughout these periods. This was supplemented with standardised quantitative measures of current mental health and quality of life. All participants were struggling to rebuild their lives in the years following release from immigration detention, and for the majority the difficulties experienced were pervasive. Participants suffered an ongoing sense of insecurity and injustice, difficulties with relationships, profound changes to view of self and poor mental health. Depression and demoralisation, concentration and memory disturbances, and persistent anxiety were very commonly reported. Standardised measures found high rates of depression, anxiety, PTSD and low quality of life scores. The results strongly suggest that the psychological and interpersonal difficulties participants were suffering at the time of interview were the legacy of their adverse experiences while detained. The current study assists in identifying the characteristics of prolonged immigration detention producing long-term psychological harm.

The EU Directive on Return: Principles and Protests

The European Union has recently been the focus of much attention on the issue of human rights and migration. Without a common policy governing the admission of migrants in place, it has agreed on common standards and procedures for returning those residing irregularly in the territory of Member States. Overall the Directive on Return, which was adopted in December 2008, falls short of a principled policy on the return of migrants, which fully respects their dignity and human rights. Measures, such as prolonged pre-removal detention and a ban on re-entering the EU have attracted the strongest criticism, including from other regions in the world, which generate substantial migration to Europe and whose development depends to a variable degree on migrants’ remittances. The worldwide protests over the “shameful Directive” have highlighted that, with respect to migration, the EU is pursuing a policy that is expedient and short-sighted, criminalizes people who contribute to the well-being of the European society and weakens the Union’s standing on human rights.

The power of detention in the management of non-compliance with tuberculosis treatment: A survey of Irish practitioners and analysis of potential legal liability

SUMMARYObjectivesThe detention of patients infected with tuberculosis has recently been the subject of significant professional and public interest. In Ireland, the power to detain and isolate probable sources of infectious disease is found in the Health Act 1947. The objective of this study was to describe the use of the power to detain, and to examine relevant legal implications.Study designCohort survey.MethodsRespiratory and infectious disease physicians practising in the public sector were invited to complete a self-administered postal questionnaire.ResultsOf the 44 clinicians surveyed, 33 responded, representing a total of 356 years of specialist practice (mean 10.8 years). Although 70% of respondents had made use of threats of formal detention in dealing with non-compliant patients, only one formal detention under statutory powers was identified. Infrastructural and legal concerns with the use of detention were common. There was widespread support for a broadening of the range of additional public health powers, including a power of prolonged detention in the setting of multi-drug-resistant tuberculosis.ConclusionDetention and isolation of non-compliant tuberculosis patients remains in active use. Physicians detaining, or threatening to detain, patients continue to expose themselves to legal liability because of the outdated legal framework underlying those powers.

The Challenges of Representing Detained Non-Citizens in Expedited Removal Proceedings from the Perspective of the Dickinson School of Law Immigration Clinic

Persons deprived of their liberties as a result of administrative detention for immigration reasons face a multitude of serious challenges. There is currently no recognized right to the government-appointed representation in immigration proceedings. As a result, on a very small percentage of immigrants obtain pro bono or any other kind of legal representation. This problem is compounded by the fact that most immigration detainees are detained in remote rural areas where the private bar is virtually unavailable. Those who are fortunate to obtain pro bono or other types of legal representation also face some serious challenges at the different stages of the deportation or removal proceedings. This article discusses the challenges of representing detained non-citizens in deportation proceedings from the prism of the Penn State Dickinson School of Law's Immigration Clinic (DSL Immigration Clinic). The discussion is presented in a continuum. Most of the immigration detainees are placed in deportation proceedings after serving a state or federal criminal sentence. What transpires in the criminal proceedings often carries serious immigration consequences. As such, the continuum must necessarily begin with a discussion of the challenges faced in deportation proceedings. These challenges are discussed under the title Pretrial Challenges in Part II. Part III deals with the challenges associated with the merits hearing in the removal proceedings, including procedural and evidentiary issues. Part IV outlines post trial challenges, including prolonged detention and the complexities of obtaining judicial review. Part V provides a brief conclusion.

Peaks and troughs—an exploration of patient perspectives of dangerous and severe personality disorder assessment (Peaks Unit, Rampton Hospital)

AbstractRationale Although accessing user‐perspectives is a key National Health Service initiative, the literature reporting user's views of forensic services, particularly dangerous and severe personality disorder (DSPD) services, is in its infancy.Aim and Design This qualitative study applied thematic analysis to 12 semi‐structured interviews aimed to enhance professional understanding of how Peaks Unit treatment‐ward participants retrospectively perceive their experience of being admitted and assessed at the unit.Findings Reported themes include ‘fear’ associated with participants' personal safety concerns and apprehensions regarding inhumane treatment and prolonged detention. The local metaphor of the DSPD Unit as the ‘dark side’ exacerbated such fears. ‘Shock’ also emerged as a primary theme resulting from unexpected admissions, security measures and some staff responses. ‘Offering hope’ provided a further theme with many participants reporting a climate of therapeutic optimism within staff teams and ‘refreshing’ opportunities for change. Reservations were also expressed about the service potentially offering ‘false hope’. Several suggestions are proposed for future assessment strategy including escalating user‐involvement activity, managing expectations, promoting therapeutic optimism and helping patients to attain a realistic sense of hope in order to maximise therapeutic engagement. Copyright © 2008 John Wiley & Sons, Ltd.

Asylum, Detention, and Mental Health in Australia

Seeking asylum in the face of persecution is a fundamental human right. The system of arbitrary mandatory detention operating under Australian immigration law since 1992 has impacted on more than 15,000 adults and children, many with traumatic experiences in their country of origin. Restrictions on entry to the mainland, policies of “deterrence”, including prolonged detention in remote camps, and inadequate responses to trauma and mental health needs have contributed to mental deterioration and suffering of asylum-seekers. The responses of mental health professionals, lawyers, human rights advocates, and community groups to the detention system have focused on the need to protect the right to seek asylum and the need for a humane response to asylum-seekers.

No Refuge from Terror: The Impact of Detention on the Mental Health of Trauma-affected Refugees Seeking Asylum in Australia

The final decades of the twentieth century were accompanied by an upsurge in the number of persons fleeing persecution and regional wars. To stem the flow of asylum seekers, several countries in the west introduced policies of deterrence, including detention. Although many countries detain asylum seekers, Australia has been unique in establishing a policy of mandatory, indefinite detention. The impact of prolonged detention on the mental health of asylum seekers drew commentary from mental health professionals soon after the policy was introduced, but administrators and politicians disputed the assertion that detention was a factor in causing or exacerbating mental disorder. This overview examines the impact of mandatory, indefinite detention on the mental health of asylum seekers by drawing on evidence gathered during Commissions of Inquiry, from observations of health and mental health professionals who have worked in detention centres, and from the small body of systematic research undertaken among immigration detainees. The data from all sources converge in demonstrating that prolonged detention has adverse mental health and psychosocial impacts on adults, families and children. Recent studies suggest that the mental health effects may be prolonged, extending well beyond the point of release into the community. The Australian experience offers general lessons to health professionals worldwide about the importance of remaining vigilant in protecting the rights of vulnerable groups, and more specifically, to ensure that the traumas that cause mental suffering in refugees are not compounded as a consequence of immigration policy decisions in recipient countries. Documentation and research can be vital in achieving policy change in these settings.

Victims or Madmen? The Diagnostic Competition over “Terrorist” Detainees at Guantánamo Bay

This article traces the pathologization of suspected terrorists held captive at the U.S. military base in Guantanamo Bay, Cuba. The occurrence of several reported suicide attempts among the detainees provided “proof” for their captors that terrorists are indeed fanatical madmen. These same reports of suicide attempts, however, were contradictorily diagnosed by human rights and humanitarian organizations as evidence of psychological deterioration induced by prolonged detention. What is notable in this diagnostic competition over what, exactly, afflicts the detainees is that both advocates and resisters to the detentions pathologized the detainees by chalking up the suicide attempts to their purportedly impaired psyches. This is significant because the pathologization of the detainees is one condition of possibility for their excision from the global body politic. Authoritarian practices, such as the incarceration of the “mad” and the detention of “suspected terrorists,” are theorized as integral to global liberal governance, which divides up populations, and subjects those deemed mad, deviant, or dangerous to coercive measures in the name of order, security, and liberty. The article concludes with a consideration of the ways in which international relations (IR) could be more attentive to the operation of the “psy” disciplines in the conduct of international affairs.

Psychiatric status of asylum seeker families held for a protracted period in a remote detention centre in Australia

Objective: To document the psychiatric status of a near complete sample of children and their families from one ethnic group held for an extended period of time in a remote immigration detention facility in Australia.Method: Structured psychiatric interviews were administered by three same‐language speaking psychologists by phone to assess the lifetime and current psychiatric disorders among 10 families (14 adults and 20 children) held in immigration detention for more than two years.Results: All adults and children met diagnostic criteria for at least one current psychiatric disorder with 26 disorders identified among 14 adults, and 52 disorders among 20 children. Retrospective comparisons indicated that adults displayed a threefold and children a tenfold increase in psychiatric disorder subsequent to detention. Exposure to trauma within detention was commonplace. All adults and the majority of children were regularly distressed by sudden and upsetting memories about detention, intrusive images of events that had occurred, and feelings of sadness and hopelessness. The majority of parents felt they were no longer able to care for, support, or control their children.Conclusions: Detention appears to be injurious to the mental health of asylum seekers.Implications: The level of exposure to violence and the high level of mental illness identified among detained families provides a warning to policy makers about the potentially damaging effects of prolonged detention on asylum seekers. In their attempt to manage the international asylum crisis, it is important that Western countries do not inadvertently implement policies that cause further harm.

Detention and deception: Limits of ethical acceptability in detention research

The core of Australia's response to asylum seekers who arrive in an unauthorised manner has been to detain them in immigration detention centres until they are judged to engage Australia's protection obligations or, if they do not, until they are returned to their country of origin. For a number of asylum seekers this has resulted in very prolonged detention. This policy has aroused a storm of controversy with very polarised positions being taken by participants in the debate. In particular, the claim has frequently been made (including by this author) that the circumstances and duration of immigration detention cause substantial harm to the mental health of a significant number of detained asylum seekers. A rational debate on the effects of detention has been hampered by the fact that the Australian government has not allowed researchers access to the detention centres in spite of persistent requests for access by professional bodies. This paper is written in response to the following questions posed by the Journal: Is there a case to be made for individuals agreeing to participate in research studies and for the wider population of current and future detainees to be involved in research without informing either the detention provider or the host nation? Is is legitimate for a researcher to engage in potentially deceptive actions in order to obtain access to such detention facilities to undertake research? What ethical framework should underpin such research? Although there is very little guidance in the literature on the ethical conduct of research in settings such as immigration detention centres, a consideration of the ethical implications of carrying out research in the manner raised by these questions leads this author to conclude that such research cannot be ethically justified. Governments must be persuaded to allow, and to provide substantial support for, ethically conducted research on all aspects of detention. There is also a need for the development of an explicit ethical framework for the conduct of research in settings characterised by a very problematic human rights context.

Science and the common good: Indefinite, non-reviewable mandatory detention of asylum seekers and the research imperative

Despite a strong historical record of resettling and providing care for refugee populations, the Australian Federal Government has increasingly implemented harsh and restrictive policies regarding the treatment and management of asylum seekers. Most controversial of these has been the mandatory detention of asylum seekers, a policy applied indiscriminately and without discretion where individual cases have not been subject to judicial review or time constraints. From the outset health professionals have raised concerns about the possible adverse mental health impacts of prolonged detention. In contrast, government representatives have characterized conditions in detention as benign and comfortable, and have consistently contested criticism of detention, often citing a lack of scientific evidence as tacit support for the continuation of the policy. Nevertheless, requests for access to the detention centres to undertake rigorous scientific investigations have gone unheeded. In this context we argue that the Australian Government has failed to uphold its commitment to good governance by allowing transparency, openness and a willingness to have the impact of its policies scrutinized by scientists. The manifest conflict of interest in the government position leads to a breach in the normal social contract between mental health researchers and those responsible for the policy of detention. There is, we argue, a legitimate moral imperative in such situations for clinical researchers to breach the walls of enforced silence and give a voice to those who are afflicted. This imperative, however, must be carefully balanced against the risks that may face detainees agreeing to participate in such research.

Clinical hopes and public fears in forensic mental health

Forensic mental health services are charged with two potentially conflicting tasks: public protection and ethical patient care. The challenge to fulfil these dual roles is most acute when considering the prolonged detention of patients who have been acquitted of serious violent offences on grounds of insanity, or found unfit to stand trial. The duration of their hospital stay often far exceeds that required to treat the most acute manifestations of their illness. Despite this, it is often argued that the seriousness of the offence should not be taken into account when determining duration of hospitalization. This paper argues that risk assessment is a complex process, involving consideration of many factors in addition to acute symptomatology. All such assessments carry an inherent level of uncertainty, which can be minimized by lengthy rehabilitation and assertive community care. It is argued that authorities are justified in considering the seriousness of the index offence when making judgements as to what level of uncertainty in risk assessment can be considered acceptable in the long term management of forensic patients. The implications of this for services, legislators and politicians are discussed.

Seeking Refuge, Losing Hope: Parents and Children in Immigration Detention

Objective: To record observations made by the authors on a series of visits between December 2001 and March 2002 to two of Australia's immigration detention centers and to consider the mental health consequences of Australia's policy of mandatory immigration detention of asylum seekers for families and children. Conclusions: Parents and children in immigration detention are often vulnerable to mental health problems before they reach Australia. Experiences in prolonged detention add to their burden of trauma, which has an impact not only on the individual adults and children, but on the family process itself. Immigration detention profoundly undermines the parental role, renders the parent impotent and leaves the child without protection or comfort in already unpredictable surroundings where basic needs for safe play and education are unmet. This potentially exposes the child to physical and emotional neglect in a degrading and hostile environment and puts children at high risk of the developmental psychopathology that follows exposure to violence and ongoing parental despair. Psychiatrists have a role in advocating for appropriate treatment of these traumatized and vulnerable parents and children.

East Meets West: Human Rights and Democracy in East Asia (review)

Reviewed by: East Meets West: Human Rights and Democracy in East Asia Jerry Burke East Meets West: Human Rights and Democracy in East Asia. By Daniel A. Bell. Princeton: Princeton University Press, 2000. Pp. 369. In Daniel Bell's extremely rich new book, East Meets West: Human Rights and Democracy in East Asia, the medium is part of the message. The book is written in dialogue form, and its central message is the need for more cross-cultural dialogue between political theorists trained in Western and East Asian societies. Bell criticizes "West-centric perspectives," which assume that every society aspires to the ideal of [End Page 265]becoming a Western-style liberal democracy. West-centric perspectives foreclose the possibility of a genuine dialogue where both sides open themselves to learning something new and revising their initial assumptions. Genuine dialogue is needed to figure out which arguments for the promotion of human rights and democracy resonate best in East Asian societies. If Bell's text focused merely on this strategic aim, then his own account could be accused of being "West-centric," but Bell goes on to argue that non-Western input would also modify international understandings of human rights and democracy. Over the course of his book, Bell suggests a number of reasons why Western theorists are reluctant to engage in genuine dialogue with East Asian scholars. Western theorists suspect that political leaders in East Asia self-servingly use the idea of "Asian values" to justify authoritarian rule rather than make a constructive contribution to the cross-cultural dialogue on political values (p. 8). Bell hopes to avoid this problem by looking at the work of East Asian intellectuals who draw on their cultural traditions to explore areas of commonality and difference with Western views on human rights and democracy. Given this preference for intellectuals over politicians, Bell's choice of Lee Kuan Yew as the main interlocutor in part 2 of East Meets Westseems strange. However, Singapore's former prime minister has been a very articulate defender of Asian values. In constructing the conversations in part 2, Bell quotes at length from Lee's public statements and it is a testament to Bell's skill at constructing a believable dialogue that he is able to integrate these quotations into a seamless, flowing conversation. Bell's text also suggests that Western intellectuals are not open to a genuine dialogue concerning democracy because they assume that there is no alternative to democracy (p. 127). He argues that Westerners should be open to dialogue with decent non-democrats, where non-democratic regimes are decent if they do not endorse or practice gross violations of human rights (p. 116). Indeed, Bell makes it clear that the subject matter of a dialogue between East and West does not concern "customary international law." There is already broad agreement that slavery, genocide, murder, torture, prolonged arbitrary detention, and systematic racial discrimination are wrong. The real debate concerns "criminal law, family law, women's rights, social and economic rights, the rights of indigenous peoples, and the attempt to universalize Western-style democratic practices" (p. 3). Bell's text focuses almost exclusively on the last of these issues, and part 2 is an example of how a dialogue between a Western democrat and a decent non-democrat might proceed. The very title of Bell's book might raise the hackles of commentators like Edward Friedman, who was recently critical in this journal of simplistic and essentializing contrasts between a democratic West and a despotic East. 1Bell hopes to avoid this pitfall by employing a "multiple-voices approach" (p. 12). His fictitious Western interlocutor converses with characters from Hong Kong, Singapore, and mainland China. By having this interlocutor engage in these different conversations, Bell hopes to convey the idea that there are a plurality of Asian voices in the debate on human rights and democracy (p. 12). His interlocutor's name is Sam Demo, who is presented as the East Asia program officer for a fictitious U.S.-based nongovernmental [End Page 266]organization called the National Endowment for Human Rights and Democracy. In Hong Kong, Demo talks to a human-rights activist and business consultant named...