The U.S. was founded on the notion that people have “certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” The Fifth Amendment echoed this assertion, stating that “no person” should “be deprived of life, liberty, or property, without due process of law.” The amendment did not speak in terms of citizens but in terms of persons, and it was unambiguous: people deserved due process before being deprived of liberty. In 1798, Thomas Jefferson explicitly wrote: “Habeas Corpus secures every man here, alien or citizen, against everything which is not law.”
Jefferson was clear on his point that foreigners deserved due process, but perhaps he and the other Founding Fathers should have been more specific about what they meant by the seemingly unequivocal term “here.” After all, slightly over a century later Congress passed the 1891 law by which those stopped at the border were to be considered not “here.” This doctrine, which came to be known as the “entry fiction,” continues to dictate conditions for asylum seekers and migrants stopped at the border to this day.
Abuse and dehumanization have occurred no matter when, how, or why detention was being used— they are intrinsic to the system. Between the end of the 19th century and the mid-1950s, detention was conceived as a means of enforcing the nation’s exclusionary laws. At the time, the government sought to exclude from entry those migrants it considered undesirable, such as Chinese laborers, and those deemed to be “idiots,” “insane,” or likely to become a public charge. Migrants were detained while officials determined whether these foreign nationals had the right to enter the country or not. The purpose of detention was not to hurt the new arrivals, but the system nonetheless did. Migrants were incarcerated without knowing why or when they would be released. They were held in conditions so terrible that many died by suicide. Guards regularly beat them. Those detained lived in a world where spending time outside was rare, windows were barred, and quarters were overcrowded. At these sites, children were often separated from their parents and guardians.
In 1954, government officials decided that there were more compassionate and effective ways to deal with the migrants who were coming to America than caging them. The vast majority of new arrivals could be released on conditional “parole,” the term used for pretrial release in immigration cases, while their cases were being reviewed. Detention, officials held, was to be reserved for migrants who were deemed likely to abscond or who posed a threat to national security or public safety. In 1958, the Supreme Court, in Leng May Ma v. Barber, even held that “physical detention of aliens is now the exception, not the rule,” and pointed out that “certainly this policy reflects the humane qualities of an enlightened civilization.”