Genealogies of Immigration Detention: Migration Control and the Shifting Boundaries Between the ‘Penal’ and the ‘Preventive’ State
| Date | 01 August 2020 |
| Author | Giuseppe Campesi |
| Published date | 01 August 2020 |
| DOI | 10.1177/0964663919888275 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2020, Vol. 29(4) 527–548
Genealogies of
ª The Author(s) 2019
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DOI: 10.1177/0964663919888275
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the Shifting Boundaries
Between the ‘Penal’ and
the ‘Preventive’ State
Giuseppe Campesi
University of Bari Aldo Moro, Italy
Abstract
The aim of this article is to explore the ambiguous legal status of immigration detention
by discussing the main theoretical perspectives on its nature and the functions it plays in
contemporary migration policies. After presenting a typological and genealogical
reconstruction of immigration detention, the article contends that it should not be seen
as being related either to the politics of ‘exception’ or to the expanding reach of ‘penal’
power in a context of mass migration. Instead, the argument presented here is that
immigration detention exhibits the characteristics of preventive measures typically
related to the exercise of police powers and that its increased role in migration policies
should be read in the wider framework of the shifting boundaries between the ‘penal’
and the ‘preventive’ state in contemporary societies.
Keywords
Agamben, border criminologies, camp form, immigration detention, preventive state
Corresponding author:
Giuseppe Campesi, Department of Political Sciences, University of Bari Aldo Moro, Corso Italia No. 23, Bari
70123, Italy.
Email: giuseppe.campesi@uniba.it
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Social & Legal Studies 29(4)
Introduction
The use of custodial or other measures restrictive of personal freedom in the framework
of migration policies – what is now commonly referred to as ‘immigration detention’ – is
continuing to increase, especially in main migration destination countries (Bosworth and
Turnbull, 2015; Flynn, 2014; Sampson and Mitchell, 2013), where the immigration
detention estate has grown dramatically since the late 1990s.1 Immigration detention
is usually of an administrative or civil nature and is applied at the discretion of immi-
gration law enforcement agencies outside the framework of the criminal justice system.
It is not a punishment and usually concerns people lacking authorization to enter or
remain in the destination countries or whose legal status is otherwise still under evalua-
tion, who are thus deprived of their liberty ‘for reasons that are directly linked to the
administration of immigration policies’ (Cornelisse, 2010: 4).
In parallel with the expansion of the immigration detention estate, scholarly debate on
the subject has also intensified. However, the field appears divided between two different
theoretical perspectives reflecting not only different disciplinary traditions but also the
differing histories of immigration detention from country to country.
First, political and social theorists in continental Europe, where immigration deten-
tion has a relatively recent history, offer one particular perspective. In countries such as
France and Italy, migration-related detention has, from the beginning, been denounced
as a legal scandal, somewhat forcing governments to emphasize the alleged humani-
tarian nature of newly opened detention facilities (Campesi, 2013; Cl´emence and
Fisher, 2008). In response, public debate has denounced the birth of new ‘immigration
Lagers’ to emphasize the contrast between immigration detention and the basic prin-
ciples on the protection of personal freedom enshrined in many constitutions across
Europe. This position was also theoretically legitimized by the research of the Italian
philosopher Agamben (1998, 2000), who drew a parallel between immigration deten-
tion facilities and concentration camps. Following on from Agamben’s work, many
have analysed what they termed ‘the camps of our days’, characterizing them as places
where the rule of law is suspended, and the exception becomes the rule (Bietlot, 2005;
Caloz-Tschopp, 2004; Diken and Laustsen, 2005; Minca, 2005; Mirzoeff, 2009;
Rahola, 2007).
A second perspective emerged from the field of criminology especially in the United
States and the United Kingdom, where immigration detention has a longer history and
has long been regarded as an ordinary administrative measure that does not need to be
surrounded by the guarantees typical of the criminal justice system (Kanstroom, 2007;
Silverman, 2010; Wilsher, 2012). Many have seen the expansion of the immigration
detention estate as yet another sign of the extending reach of penal power in a carceral
age, underlining the increasing crossover between punishment and migration control, a
process that has been termed ‘crimmigration’ by Stumpf (2006). Even if immigration
detention is not intended as a punishment for irregular migration, the argument runs, it is
perceived as an inherently punitive measure by those affected, and has a powerful
stigmatizing effect, strengthening the public perception that irregular migration is tied
to crime and disorder (Bosworth, 2014, 2017; Bosworth and Turnbull, 2015; Garc´ıa
Hern´andez, 2014; Simon, 1998; Turnbull, 2017; Weber, 2003; Welch, 2002).
Campesi
529
In spite of the different theoretical matrices, the two perspective share many common
points. In particular, both start from the assumption that migration control in contem-
porary societies largely works by framing human mobility as a source of danger. Both
perspectives argue that the definition of migrants as legitimate objects of confinement
largely depends on their characterization, not just as unwanted outsiders but also as
potentially dangerous subjects. It is here, however, that the two theoretical perspectives
diverge. According to the perspective inspired by Agamben, the figure of the migrant is
indistinguishable from that of the enemy, representing an existential threat to which the
state responds by employing exceptional legal measures similar to those enacted in the
event of national emergencies. In the criminologically inspired perspective, the migrant
is perceived as a source of danger and disorder to which the state responds via an
increasing interlacing of criminal and immigration law.
In both readings of immigration detention, what is in question is its relationship with
the criminal justice system, yet the issue seems to be framed very differently. On the one
hand, immigration detention is criticized for being an offshoot of the criminal justice
system and for ‘overcriminalizing’ migrants; on the other hand, there is criticism of the
‘undercriminalization’ of immigration enforcement, which is implemented through the
use of administrative custodial measures outside the ordinary criminal justice frame-
work. In the former case, it is the idea of the expansion of ordinary penal power in the
field of migration control that is crucial; in the latter, the exceptional nature of the
measures taken to control migration is emphasized. Although the weight of history and
the traditions of the different disciplines have had an impact on the emergence of such
different theoretical perspectives, I believe that this is also an indication of the inherent
‘complex and contradictory nature’ (Bosworth, 2017; Turnbull, 2017) of immigration
detention.
The aim of this article is to explore the ambiguous legal status of immigration
detention by discussing the two main theoretical perspectives on its nature and the
functions it plays in contemporary migration policies. The article starts with an intro-
ductory section which outlines a typology of immigration detention facilities and, then,
continues by identifying three genealogies of immigration detention. However, rather
than being seen as an exercise in historiographic reconstruction, the genealogies I pro-
pose should be read in the light of the subsequent section in which the legal status of
immigration detention is discussed in further detail. By contending that the expansion of
immigration detention should be seen as being related neither to the politics of ‘excep-
tion’ (as in the critical-philosophical perspective inspired by Agamben) nor to the
expanding reach of ‘penal’ power in a context of mass migration (as in the criminolo-
gical–penological perspective), I argue that it possesses the characteristics of preventive
measures typically related to the exercise of police powers and that its increased role in
migration policies should be interpreted as an indication of the shifting boundaries
between the ‘penal’ and the ‘preventive’ state in contemporary societies.
A Typology of Immigration Detention Facilities
There is a complex variety of immigration detention facilities, and previous attempts at
classifying them have proved challenging. With the aim of specifying its mandate in this
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Social & Legal Studies 29(4)
area, the UN Working Group on Arbitrary Detention has, for example, identified at least
eight different types of facilities where migrants may be taken into custody: (a) custody
areas near borders, (b) police stations, (c) facilities managed by penitentiary adminis-
trations, (d) ad hoc facilities, (e) house arrest, (f) international areas and so-called ‘transit
zones’, (g) gathering centres and (h) hospitals (Working Group on Arbitrary Detention,
1998: para 33). However, these different facilities may host people with very different
legal statuses, which, according to the Working Group, can be divided into four main
categories: (a) people who have been denied access to the territory; (b) people who have
illegally entered the territory and have subsequently been intercepted by local authori-
ties; (c) people...
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