300 Years of Detaining Migrants

Detention policies didn’t stop migration from Switzerland in 1744 either

Käfigsturm or “prison-tower,” in Bern, Switzerland, where Peter Inäbnit was incarcerated in 1744 for allegedly helping people emigrate to Carolina. Photo by Leonid Andronov/Alamy.com.

As of last Sunday, the U.S. government was confining 39,111 people in immigration detention. The overwhelming majority of those people – 66.9%  – had no criminal record. Many more had only minor convictions, such as traffic violations, according government data analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

Why? Under the Immigration and Nationality Act (INA), there are essentially three reasons:

• First, some migrants are subject to “mandatory detention” under Section 236(c) of the INA because they either (1) have connections to terrorist activities or (far more often) (2) committed or admitted to acts constituting a crime – even, in some cases, a relatively minor one like shoplifting, as a I wrote about last week.

• Second, Section 235(b) of the INA requires the detention of certain “arriving aliens” – people applying for admission at a border or present in the country without having been admitted or paroled in. (Exactly who must be detained under that section, a question left open by the Supreme Court when it allowed the end of Trump’s “Remain in Mexico” policy in 2021, underlies the impeachment of DHS Secretary of Anthony Mayorkas.)

• Third, Section 236(a) allows (but does not require) ICE to detain other people after DHS has started removal proceedings against them in immigration court.

This last group of detainees is entitled to a bond hearing with an immigration judge, but the individual bears the burden of proving that they (1) won’t avoid their immigration court hearings; and (2) aren’t a danger to the community. Even the criminal justice system doesn’t put the burden of proof on the individual and doesn’t require them to prove a negative. This standard stacks the deck heavily in favor of detention – and in a system that is supposed to be civil and non-punitive.

Digging Deeper on Immigration Detention Policy

That’s what the law currently says. But why does the law say that?

In 1955, the United States had four – that’s right, four – people in immigration detention seeking admission. According to the attorney general, that was “practically a 100 percent reduction” from prior policies.

In short, it’s our country’s choice to detain 39,000 people – and it’s not the only choice, or even the most sensible one. For one thing, it’s well established that incarceration doesn’t reduce violent crime, and may even increase it. And it’s expensive. As Matthew Boaz has argued, a more effective and efficient way of ensuring people show up for immigration court would be to appoint them a lawyer, since studies have shown that 93% of people with publicly-appointed counsel showed up for their court hearings.

If immigration detention doesn’t really make sense from a fiscal or public safety standpoint, we must do it for some other reason. I suspect it’s because we can’t really stop people from migrating, but in the face of more than 2 million people arriving at the border each year, we want to say we’re doing something. Even if we know that something doesn’t work.  

Emigration Detention: 18^th Century Switzerland

We’re not the first country to resort to detention of migrants as a last-ditch policy measure to stop migration. In the Upper Rhine in the eighteenth century, Swiss and German officials worried immensely about the threat of migration – to the sending state. And they took harsh measures against it, including detention of violators.

In a recent post, I explored a document that appears (to me) to be a vigorous attempt at negative persuasion in 1756 by the authorities in Württemberg, home state of my biography subject’s ancestor, Hans Michel Finter. In the cantons of Switzerland, documentary evidence demonstrates even more drastic measures, including outright prohibition of emigration. Similar policies may have been followed in German states in which less evidence has survived. (The Swiss documents were published (in German) and analyzed by Albert B. Faust in The American Historical Review in 1916.)

Zürich acted quickly to the migration threat. In 1734, it issued a decree prohibiting its people from traveling to the new colonies in the Carolinas, preventing them from selling property, and promising punishment of anyone enticing others to leave. A few months later, it added further penalties, such as loss of citizenship and land rights forever for emigrants, and punishment of people who purchased their property.

Bern, in contrast, waffled. In 1738, it decided against a measure to increase the emigration tax because “the RABIES CAROLINAE” had disappeared. Within a few years, Bern authorities realized they were sadly mistaken; migration was higher than ever. In 1742, it enacted an anti-emigration law with severe penalties. Three months after departure, all citizenship, land rights, and property of an emigrant would be forfeited. Children who were under age at the time of emigration would be permitted to return, but all others who returned would be treated as agents attempting to illegally recruit others.  In 1744, as the tide of emigration continued, Bern further provided that people would be allowed to emigrate, but any who returned would be put in prison.

These policies may seem draconian or even laughable to an American audience today. But Swiss and German authorities then – like U.S. authorities today – often viewed migration as a serious national security threat. In the century after the devastating Thirty Years War and other conflicts and pestilences had wiped out populations in Central Europe to sometimes half of previous levels, population was power. Emigration spelled extreme vulnerability to states poised precariously between major powers like Bourbon France and Hapsburg Austria.

The loss of young, able-bodied men particularly threatened national security. As I’ve described here, small states not only had to keep armies to secure their own states and the territories to which they belonged; they also entered into soldier treaties with larger states in exchange for funding and, especially, protection. In Central Europe, a shrinking state was a highly vulnerable state.

Swiss Migrant Detainees: The Story of Peter Inäbnit

Bern placed officials on the streets to enforce their migration restriction measures. Returning emigrants came under particular surveillance. Swiss authorities detained and held suspicious emigrants for questioning and determination of their guilt.

One detainee in Basel and later Bern, Peter Huber, was detained and questioned about a box in his luggage that contained a special compartment on the bottom where letters could be stored. Huber admitted he had the container but denied carrying enticement letters. He was busted when authorities caught him tossing a piece of paper out of his cell, telling the recipients to proceed to Basel and wait for him there. He was apparently released but banished, possibly under threat of the death penalty if he were to return.

Another Bern detainee, Peter Inäbnit, appeared to have learned some lessons from Huber, but his detention ended in tragedy. Inäbnit had left Switzerland nine years earlier as a teenager, so the law permitted him to return. He attracted suspicion, however, since crowds gathered around him at public gatherings, seeking information about Carolina. When questioned by authorities whether he sought to entice others to emigrate, Inäbnit vigorously denied the charges; in fact, he said, he intended to remain in Switzerland himself as he had found life in the colonies very unpleasant. Authorities continued to press him (translations here are from Faust):

Q:  What had he told to the people about Carolina, making so many of them anxious to go there?

A: He had not said anything specially about it, except in answer to questions; moreover, he had neither praised nor blamed the country but of course told them what the conditions were, and that over there as here, whoever brought nothing was in a bad way … he did not wish to go back, because he could not pull through very well.

They tried to connect him with Peter Huber, who had taken people back with him the preceding year, but Inäbnit only conceded that nine or ten people traveled with Huber, and he could not have made any money from their transport since one of them had to enter into indentured servitude to redeem his passage. They continued:

Q: He should once for all tell the truth, and say, whether he had not been sent expressly to bring people into the country?

A: No, he had merely wished to see his fatherland again, and remain here, or in Germany.

Inäbnit refused to confess, but authorities didn’t stop there. They threatened him with torture, brought in the executioner, took him to the torture chamber, threatened him again with torture; still he insisted that he had not tried to recruit anyone to Carolina. The authorities condemned him to stand in the stocks and then banished him.

But Inäbnit didn’t leave Switzerland immediately. The next month, he was apprehended at Basel and transported back to Bern; apparently authorities had obtained several letters he’d written telling others how to prepare for the journey to Carolina. In Bern, he was imprisoned in the Käfigturm (“cage-tower” or “prison-tower”, pictured above in 2015). Friends provided him with a rope by which he tried to escape from the tower one night, but the rope broke or he fell. He was discovered on the ground outside the tower at 9 that night and died at 7 the next morning.

Requiem for a Detained Migrant

The rulers of Bern wrote off Inäbnit as a criminal who would not be mourned: “Owing to clearly proven and partly confessed crimes of the deceased, the body was ordered to be buried under the place of public execution”.

Boaz has argued that ICE often uses the same tactic when immigration detainees die in custody: For example, when a 72-year-old man who had tested positive for COVID died in ICE detention in 2020, ICE listed his crimes in its press release.

Neither Swiss nor U.S. detention policies have stopped people from migrating. (Even the Trump-era Remain in Mexico policy only temporarily displaced it to Mexico, and stoked it once that diplomatically, not to mention humanely, unsustainable policy was lifted.) Perhaps, after three hundred years, it’s time we look for smarter solutions for managing the challenges of migration.