A recent report in the New York Times details how many Americans have been arrested and detained,
sometimes for many months, simply because the immigration authorities (known as ICE) mistakenly
took them for deportable immigrants. These false imprisonments -- ICE has no legal authority to detain
a citizen for deportation proceedings -- are not only alarming, they are unconstitutional deprivations
of liberty. Jacqueline Stevens of Northwestern has shown that violations occur with some frequency.
Yet they are probably just the tip of the iceberg; they will surely multiply as the Obama administration
ramps up its already record-setting deportation efforts.
How could this happen, and what should be done about it?
In any large-scale law enforcement operation, identification mistakes are inevitable -- especially in
immigration enforcement. Immigrants and citizens often have the same names. People can become
citizens in ways that don't leave obvious paper trails. Few of us carry around documents proving our
legal status or have a lawyer at the ready. The immigration agency's databases on people's legal status
are notoriously incomplete and error-prone, despite decades of costly efforts to improve them, and the
agency is under immense -- and legitimate -- pressure to arrest and remove illegal immigrants, especially
criminals.
But to say that false arrests are inevitable says nothing about who should bear the consequences,
and how they can be prevented in the future. The first goal, rectification, requires compensation for
the indignity, loss of liberty, and other harms that these false arrests have inflicted on our citizens,
particularly since these harms fall disproportionately on citizens who happen to fit the immigrant
stereotypes. Certain well-established legal remedies exist. The wronged citizen could either sue the
United States for money damages under the Federal Tort Claims Act, or sue the individual Homeland
Security agents who caused the false arrest, using a so-called Bivens remedy (for the 1971 Supreme
Court decision that allows victims of certain constitutional violations to sue individual officials). In
reality, however, the citizen would have to find a lawyer to represent him for a fee that the law sets at
an unconscionably (perhaps unconstitutionally) low level, making it more difficult to find a good one. In
addition, the defendants might be able to invoke certain legal immunities from suit. Even if the citizen
eventually won, it could take years and the damages might not compensate him for his full dignitary
harm. (If he sues the United States, no punitive damages are possible).
The question of deterrence is even more difficult. Since any judgment against the government would be
paid from the general Treasury, not from ICE's budget, the ICE officials in the field who decide whether
to arrest would not feel any direct sting or threat from these judgments. Alternatively, officials who
are sued directly under Bivens may not have enough money to pay damages to the citizen. But the
deterrence goal is even harder to reach because it is subject to another constraint: the risk of over-deterrence. If the threat of liability makes officials so fearful about being sanctioned for any arrests
that turn out to be false, they may be so risk-averse that they hang back passively rather than actively
discharge their important responsibilities. We should want them to be more careful in deciding whom
to arrest, but not so careful that they take action only on the easiest cases.
To this difficult challenge of combining adequate compensation for victims with effective but not
excessive deterrence, there is a workable solution. For compensation, Congress should enact a law
requiring ICE to pay a statutorily-defined penalty to those citizens who are arrested because they
were mistakenly thought to be immigrants and who can document that they were in fact citizens at
the time. The administrative compensation process should be simple enough that the citizen doesn't
need a lawyer. The penalty should have two components: lost wages and other pecuniary losses from
the detention, and a fixed amount for each day of wrongful detention designed to monetize (insofar
as possible) the citizen's loss of freedom, stigma, and mistreatment. ICE should also be required to
apologize directly to the wronged citizen, and the penalties paid should come out of the agency's
budget. (If ICE already possesses the legal authority to make such payments, it can establish such a
system by its own regulation).
This compensation scheme, if funded out of ICE's budget, would certainly motivate the agency to
change its officer training, internal disciplinary system, and incentives in order to minimize the risk of
such behavior in the future while encouraging its officials to vigorously enforce the immigration laws.
Striking the right balance is essential to protecting the public from both law-breaking immigrants and
law-breaking officials alike.
Peter H. Schuck is a law professor at Yale and the co-editor (with James Q. Wilson) of Understanding America: The Anatomy of an Exceptional Nation (Public Affairs).