ABSTRACT
This chapter investigates the contemporary relevance of Hannah Arendt’s claim that it is better to be a stateless person than a criminal and Giorgio Agamben’s related contention that the camp and not the prison is the key institution of modern power. It finds that rather than one sphere being better than another, in recent decades the criminal justice and immigration systems have each operated extra-constitutionally, even as each is legally authorized. Furthermore, while the two systems are supposed to be distinct – the prison system is part of the criminal justice system while the immigration system is civil – they often share space. A second question that is investigated is how these mutually informing and sometimes overlapping spaces are configured – is the excess of rules, documentation, and surveillance a sign of “hyper-legality” and thus, too much law? Or are these spaces legal voids, as forms of psychological and physical torture become increasingly accepted? The author proposes that both Arendt and Agamben would find that these systems are a hybrid of legal and extra-legal, constituted in such a way that looser standards of “cruel and unusual” in prisons set lower standards in immigrant detention. In turn, the increasing tolerance of torture at Guantánamo is not merely coincidental but connected to these other two spheres.
