In December 2016, the Supreme Court ordered additional briefing in Jennings on the constitutionality of detaining people for months and years without access to a bond hearing. Last month, the ACLU and the Trump Administration filed supplemental briefs, and the NYU Immigrant Rights Clinic and the Immigrant Defense Project submitted a follow-up "stories" amicus brief, available here.
This unusual request for further briefing signals that the Supreme Court is, at the very least, interested in addressing the constitutionality of prolonged detention without access to a day in court. When the case was argued on November 30, some Justices expressed deep concern about our government's current practices. Justice Elena Kagan said, for example, that "[y]ou can't just lock people up without any finding of dangerousness, without any finding of flight risk, for an indefinite period of time . . . ." When the Government offered that 90% of cases conclude after 19 months, Justice Sonia Sotomayor replied, "We are in an upended world when we think ... 19 months is a reasonable time to detain a person."
But the Government argued that there was no problem with detaining an immigrant for three years without a bond hearing, and even refused to draw the line at twenty years, conceding only that it "might be a concern." For Hilarion Warren Joseph, a decorated combat veteran from the Gulf War, three years in detention was nearly unbearable. Mr. Joseph, who is now a U.S. citizen, had been placed in mandatory detention based on a conviction for which he was sentenced to only probation. He explains that the harsh conditions of detention are "a form of intimidation, so we could be forced to 'sign out' and be deported. We had to make a decision between that or to stay and suffer."
Further arguments are not anticipated in Jennings and a decision is still expected by late June or early July.