How We Used to Do This—and Why It Matters

By Cliff Potts, CSO, and Editor-in-Chief of WPS News
Baybay City, Leyte, Philippines — April 22, 2026

A Recent Past We Seem Determined to Forget

The most damning fact about today’s civil detention regime is not that it is harsh. It is that it is unnecessary.

Within living memory, the United States handled civil immigration violations without incarceration, spectacle, or cruelty. The law has not fundamentally changed since then. What has changed is institutional behavior—and the incentives that shape it.

Understanding how civil enforcement once operated is essential, because it proves that today’s system is a choice, not an inevitability.

Civil Enforcement Before Carceral Expansion

In the early-to-mid 1990s, civil immigration violations such as visa overstays were treated as administrative problems requiring administrative solutions. Individuals detained at ports of entry were supervised, housed temporarily in non-carceral settings, and returned on the next available flight.

They were not jailed.
They were not criminalized.
They were not used as symbols.

Supervision was exactly that—supervision. Facilities resembled apartments or holding spaces, not detention centers. Food, rest, and basic dignity were provided. The objective was compliance and removal, not punishment.

This system was quiet, effective, and inexpensive.

“Tough on Crime” Without Abandoning Civil Law

Notably, this approach existed during an era often remembered as punitive. Political leadership at the time emphasized law and order, yet still respected the distinction between civil and criminal authority.

Civil violations were resolved administratively because that was what the law required. There was no perceived need to turn overstays into enemies of the state or to stage enforcement as theater.

The assumption was simple: if someone violated the terms of entry, they would be returned. There was no moral panic attached to the process.

What Changed Was Not the Law

The transition to mass civil detention did not follow a wave of statutory reform. It followed a shift in enforcement culture.

Detention infrastructure expanded. Contracts were signed. Metrics were introduced. Visibility became a priority. Once cages existed, they were used. Once numbers were tracked, they were maximized.

Civil enforcement adopted the posture of criminal punishment not because it was required, but because it was institutionally convenient.

The Myth of Necessity

Defenders of the current system often argue that scale made earlier methods impossible. The historical record does not support this claim.

The United States has always processed large numbers of visa holders. Administrative return, supervision, and rapid removal scaled because they were designed to. The modern detention model did not solve a problem of volume. It solved a problem of optics.

What changed was not feasibility. It was appetite.

Why This Will Come Back

History is unkind to systems that rely on technical legality to justify ethical collapse. The United States has already paid this price before.

Policies once defended as lawful have later been recognized as unjust, resulting in formal apologies, reparations, and lasting damage to institutional legitimacy. Civil detention is following the same trajectory.

Future courts, historians, and oversight bodies will ask a simple question: why were people jailed for civil violations when proven alternatives already existed?

There will be no credible answer.

The National Cost of Forgetting

This is not merely a policy failure. It is a national one.

A government that treats liberty as an administrative inconvenience trains its institutions to value control over law. A public that accepts this logic becomes accustomed to injustice so long as it is directed at others.

That erosion does not stop at immigration enforcement. It spreads.

The record matters because it forecloses excuses. We know another way was possible because we used it. The choice to abandon it was deliberate—and it will not be forgotten.

---

From Alamo to Anarchy argues that saving U.S. democracy requires breaking Texas into five states. In a sharp Zoomer voice, Dorah Zurino traces Texas from slave republic to today’s “lab of extremes” (Rangers, Jim Crow, ERCOT, SB8) and maps a constitutional, step-by-step plan to un-monopolize power and let real communities govern.
https://books2read.com/u/mdBD9R

---

APA References

Legomsky, S. H. (2009). Immigration and refugee law and policy. Foundation Press.

Motomura, H. (2014). Immigration outside the law. Oxford University Press.

U.S. Department of Justice. (1996). Immigration enforcement and administrative detention practices. DOJ Archives.