concurring:
I concur wholeheartedly in the majority’s judgment and I concur in the majority opinion insofar as it goes. I write separately to emphasize my belief that the liberty interest at issue — freedom from governmental detention and restraint — is a fundamental right expressly protected by the fifth amendment to the Constitution. Indeed, freedom from governmental restraint is the core, the very crux of any governmental system dedicated to preserving the integrity and inviolability of the individual. I write separately also to highlight the two distinct deprivations of liberty occasioned by the INS’s policy.
A. The Right at Issue
The original panel opinion in this case and the current dissent denominate the right at issue as the “right to be released to unrelated adults.” This characterization of the children’s liberty interest stands the Constitution on its head. It presumes the government’s right to detain and requires children, who have committed no offense greater than being suspected of being de-portable, to prove their entitlement to release. Even assuming that non-textual rights need to be carefully articulated, there is no reason to afford “liberty”— language right out of the Constitution’s text — such a cramped interpretation.
I agree with the majority’s conclusion that one textual source of the right to freedom from governmental restraint is the Constitution’s habeas corpus guarantee. U.S. Const, art. I, § 9. The majority’s analysis of the constitutional basis for the right at issue is not complete, however.
Physical freedom from governmental detention and restraint — liberty in its most elemental form — is a fundamental constitutional right guaranteed by the due process clause of the fifth amendment. This freedom from governmental restraint is both a substantive right and an entitlement to certain procedural protections when the government acts to deprive a person of physical liberty.
A recent acknowledgment of the substantive due process right to freedom from governmental restraint can be found in De-Shaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). In DeShaney, the Supreme Court expressly stated:
In the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf — through incarceration, institutionalization, or other similar restraint of personal liberty — which is the “deprivation of liberty” triggering the protections of the Due Process Clause.
Id. at 200, 109 S.Ct. at 1006.
The DeShaney court’s observation was not novel. Numerous precedents already recognized the individual’s fundamental right to freedom from restraint. See, e.g., United States v. Salerno, 481 U.S. 739, 749, 107 S.Ct. 2095, 2102, 95 L.Ed.2d 697 (1987) (“Respondents [invoke] ... the ‘general rule’ of substantive due process that the government may not detain a person prior to a judgment of guilt in a criminal trial. Such a ‘general rule’ may freely be conceded....”); Youngberg v. Romeo, 457 U.S. 307, 309, 316, 319, 102 S.Ct. 2452, 2454, 2458, 73 L.Ed.2d 28 (1982) (Court recognizes “substantive right[] under the Due Process Clause” to “freedom from bodily restraint” and observes that “[i]n other contexts, the existence of such an *1366interest is clear in the prior decisions of this Court. Indeed, ‘[I]iberty from bodily restraint always has been recognized as the core of liberty protected by the Due Process Clause from arbitrary governmental action,’ ” (quoting Greenholtz v. Inmates, Nebraska Penal & Correctional Complex, 442 U.S. 1, 18, 99 S.Ct. 2100, 2109, 60 L.Ed.2d 668 (1979) (Powell, J., concurring in part and dissenting in part))); Parham v. J.R., 442 U.S. 584, 600, 99 S.Ct. 2493, 2503, 61 L.Ed.2d 101 (1979) (“It is not disputed that a child, in common with adults, has a substantial liberty interest in not being confined unnecessarily for medical treatment.”).1
These cases recognize explicitly what our constitutional jurisprudence historically has acknowledged implicitly through presumptions and assumptions about the relationship between government and the governed in this country. Liberty is the norm; arrest, detention, or restraint by the state is the exception. To operate otherwise makes a mockery of “government of the people, by the people.” Some of our most cherished rights—freedom of speech and of religion, the right to vote, travel, and to be free from unreasonable searches and seizures — would mean nothing if we had to live under the heavy hand of government.
The strict burdens that the Constitution imposes on government’s efforts to deprive individuals of their liberty reveal that freedom from governmental restraint is a fundamental right and the cornerstone of democratic government. Government may not incarcerate a person unless it proves that person’s guilt beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). Government may not arrest and detain persons absent probable cause to believe a crime has been committed by them. Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54 (1975). The brief delay in physical freedom occasioned by a stop-and-frisk cannot be imposed absent a reasonable and particularized suspicion of danger. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). The operative assumption in our society is that government may not intrude into the private sanctuary of the individual. Exceptions will be made if, and only if, the state makes a very strong showing of necessity.
To reduce liberty, as the original panel and the dissent suggest, to nothing more than an entitlement to certain procedural protections and thereby to burden the children with showing a “right to release” ignores the very substance of the Bill of Rights. The Bill of Rights, including the fifth amendment, is our country’s blueprint for individual freedom. It maps out limits beyond which the government may not step. Our conception of liberty should thus be drawn in terms of what government may not do (restrain) rather than in terms of what children must do (show entitlement to release).
To see the right in strictly procedural terms fails to recognize that the genesis of these procedures and presumptions is our Constitution’s fundamental belief in the sovereignty of the individual. It is this principle that defines the substantive right to liberty, to freedom from governmental restraint. The rules and presumptions mandated by procedural due process are not themselves “liberty.” Rather, they are the indispensable guarantees and requirements of the substantive right to freedom from governmental restraint. Liberty under the due process clause is thus both a process and a condition, and it is a right with which the children who brought this action are endowed.2
*1367B. Procedural Due Process
Defining the right at issue only begins our constitutional inquiry. That a right is fundamental does not mean that it is inviolable. See, e.g., Youngberg, 457 U.S. at 319-20, 102 S.Ct. at 2459-60 (liberty interest protected by substantive due process is not absolute). Just as government may on occasion limit speech or religious practices, so may government restrict or deny physical liberty to some extent, upon making the constitutionally-mandated showing of necessity. We thus must determine whether the limitations imposed by the INS on the children’s liberty comport with the substantive and procedural components of the fifth amendment’s due process clause.
Much of the unease occasioned by the INS’s policy and the original panel’s opinion derives from the fact that the INS imposes conditions on a child’s release before there is even a neutral and independent review of its authority to detain a child (and, concomitantly, to limit her release). This puts the cart before the horse. We cannot fairly discuss the INS’s ability to condition the children’s release or its interest in ensuring the children’s return and safety until the INS has established its authority to detain the children in the first instance. Unlike the majority, I turn therefore to the procedural due process issue before addressing the constitutionality of the release conditions.
Much of the parties’ debate focuses on whether Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54, or Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), prescribes the appropriate framework for the procedural due process analysis. I agree with Judge Rymer’s conclusion that Mathews governs. Deportation is a civil, not a criminal, proceeding. See Carlson v. Landon, 342 U.S. 524, 537-38, 72 S.Ct. 525, 532-33, 96 L.Ed. 547 (1952). The Supreme Court has repeatedly invoked Mathews to test the constitutionality of civil deprivations of liberty. See, e.g., Landon v. Plasencia, 459 U.S. 21, 34, 103 S.Ct. 321, 330, 74 L.Ed.2d 21 (1982) (INS exclusion proceedings); Parham, 442 U.S. at 599-600, 99 S.Ct. at 2502-03 (commitment of children to mental health facility); Greenholtz, 442 U.S. at 14, 99 S.Ct. at 2109 (parole hearings); Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979) (involuntary commitment of children to mental hospital); Ingraham v. Wright, 430 U.S. 651, 675, 97 S.Ct. 1401, 1414, 51 L.Ed.2d 711 (1977) (corporal punishment of students); see also Salerno, 481 U.S. at 746, 107 S.Ct. at 2101 (regulatory pretrial detention under Bail Reform Act); accord Youngberg, 457 U.S. at 320-21, 102 S.Ct. at 2460-61 (involuntarily committed patients). While the children correctly point out that the Court frequently cites Gerstein in these cases, the opinions speak, and the analysis is conducted, in the language of Mathews. Because the Supreme Court has used Mathews to test the propriety of a variety of civil incarcerations, including an INS proceeding, we must apply Mathews in this instance.
In applying Mathews, we must balance (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substantive procedural requirement would entail. Mathews, 424 U.S. at 335, 96 S.Ct. at 903.
The private interest at issue is, of course, the children’s liberty from governmental detention and restraint. This interest is substantial and compelling. “[C]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” Addington, 441 U.S. at 425, 99 S.Ct. at 1809; see also Salerno, 481 U.S. at 750, 107 S.Ct. at 2103 (noting the “importance and fundamental nature of this right [to liberty]”); Schall v. Martin, 467 U.S. 253, 265, 104 S.Ct. 2403, 2410, 81 L.Ed.2d 207 (1984).
Moreover, the adverse consequences of detention are legion, consequences exacerbated by the youth of the detainees. Detention by the government stigmatizes children, regardless of the ultimate resolution *1368of their respective cases. Children in INS detention centers enjoy, at best, very limited educational and recreational opportunities. They are away from family and friends; every aspect of their daily life is regulated by strangers. See Plasencia, 459 U.S. at 34, 103 S.Ct. at 330 (right to regain family “ranks high among the interests of the individual”). They have very little privacy, may be shackled and handcuffed, and lead a very regimented life.
Furthermore, the risk of an erroneous deprivation of liberty'by the INS is sub-' stantial. As Judge Fletcher pointed out in her dissent from the original panel’s decision in this case, many persons arrested by the INS will ultimately prove not to be deportable. Some of these children will be found to be citizens, legal aliens, or entitled to political asylum.
Currently, an officer’s determination of deportability is subject only to review by a second immigration officer, who determines whether prima facie evidence of a violation of the immigration laws exists. 8 C.F.R. § 287.3. If no second officer is available, the prima facie determination may be made by the original arresting officer. Id. At no point does an official detached from the enforcement function test the sufficiency of the evidence to arrest and detain. See id.3
Our Constitution has long recognized that combining the roles of prosecutor and adjudicator in a single entity is a recipe for fundamentally unfair and erroneous decision making. See, e.g., Schweiker v. McClure, 456 U.S. 188, 195, 102 S.Ct. 1665, 1669, 72 L.Ed.2d 1 (1982) (“As this Court repeatedly has recognized, due process demands impartiality on the part of those who function in judicial or quasi-judicial capacities.”); Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287 (1970) (“an impartial decision maker is [an] essential” component of due process); Tumey v. Ohio, 273 U.S. 510, 534, 47 S.Ct. 437, 445, 71 L.Ed. 749 (1927) (“A situation in which an official perforce occupies two practically and seriously inconsistent positions, one partisan and the other judicial, necessarily involves a lack of due process.”); see also Parham, 442 U.S. at 606, 99 S.Ct. at 2506 (civil commitment of mentally ill children must be reviewed by neuT tral fact finders); Gerstein, 420 U.S. at 114, 95 S.Ct. at 863.
These cases recognize the importance of neutral and detached review as a protection against the overzealous prosecutor or law enforcement official.
A democratic society, in which respect for the dignity of all [persons] is central, naturally guards against the misuse of the law enforcement process. Zeal in tracking down crime is not in itself an assurance of soberness of judgment. Disinterestedness in law enforcement does not alone prevent disregard of cherished liberties. Experience has therefore counseled that safeguards must be provided against the dangers of the overzealous as well as the despotic.
McNabb v. United States, 318 U.S. 332, 343, 63 S.Ct. 608, 614, 87 L.Ed. 819 (1943); see also Shadwick v. City of Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119, 2122, 32 L.Ed.2d 783 (1972) (probable cause for issuance of an arrest warrant must be determined by an official independent of the police and prosecution); Coolidge v. New *1369Hampshire, 403 U.S. 443, 450, 91 S.Ct. 2022, 2029, 29 L.Ed.2d 564 (1971) (prosecutor’s responsibility to law enforcement is inconsistent with the constitutional role of a neutral and detached magistrate).
The INS's procedure does nothing to protect against the risk of error and unfairness. The field officer’s determination is, at best, reviewed by another law enforcement officer. At worst, the arresting officer reviews his own decision. The INS cites no case, nor have any been found, where the Supreme Court has tolerated a deprivation of physical liberty unaccompanied by any provision for independent and neutral review of the decision to incarcerate. To the contrary, statutory schemes for detention (civil or criminal) previously reviewed by the courts have involved some measure of independent review of the initial decision to detain. See, e.g., Salerno, 481 U.S. at 750, 107 S.Ct. at 2103 (pretrial detention predicated upon governmental showing by clear and convincing evidence to a neutral decisionmaker of need to detain); Schall, 467 U.S. at 269-70, 104 S.Ct. at 2412-13 (juvenile detention reviewed for probable cause by member of judicial branch); Parham, 442 U.S. at 606-07, 99 S.Ct. at 2506-07 (commitment of children must be reviewed by a neutral and detached trier of fact); see also In Re Gault, 387 U.S. 1, 30, 87 S.Ct. 1428, 1445, 18 L.Ed.2d 527 (1967) (child committed to juvenile detention entitled to hearing containing “the essentials of due process and fair treatment”). Our Circuit’s precedent similarly insist upon the neutral review of decisions to restrain individuals for any significant period of time. Gary H. v. Hegstrom, 831 F.2d 1430, 1433 (9th Cir.1987) (due process hearings for adolescents detained for criminal behavior); Doe v. Gallinot, 657 F.2d 1017, 1023 (9th Cir.1981) (involuntary commitment decisions must be reviewed by independent decisionmaker to reduce error, since consequences of liberty deprivation are so severe).
With respect to the third Mathews factor, the INS asserts in vague and conclusory terms that it will be burdened by a mandate to provide prompt impartial review of its officers’ findings of probable cause to arrest and detain children. The INS provides no specifics, however. Both the record and common sense, on the other hand, reveal that the requirement need not be unduly burdensome. A quasi-judicial scheme of administrative judges (immigration judges) already exists within the INS that could provide the necessary detached review. The institution of such a practice, moreover, will relieve INS law enforcement officers of the duty to review their fellow officers’ arrests to determine whether a prima facie case for deportability exists.
Given the substantial liberty interest involved, the proven record and constant risk of error, and the failure of the INS to articulate anything more than vague and unsubstantiated objections to neutral review, I conclude that the due process clause requires the INS promptly to afford detained children an impartial and detached review of their detention. At such a hearing, the burden must be on the INS to demonstrate the propriety of detention. Gallinot, 657 F.2d at 1023 (“It is the state, after all, which must ultimately justify depriving a person of a protected liberty in-terest_”).
C. Conditions on Release
Once the INS has demonstrated before a neutral and detached decisionmaker a pri-ma facie case of deportability, the INS’s legitimate interests in ensuring that child’s return for future hearings and, to some extent, that child’s safety entitle it to impose conditions on the child’s release. Those conditions, however, may not restrict the child’s liberty any more than is necessary to achieve the INS’s stated goals of ensuring return and safety.
I wholeheartedly agree with the majority’s holding that the regulation’s prohibition on release to responsible third parties cannot survive scrutiny under the due process clause. Where, as here, the children detained have not individually been shown to be a flight risk, a threat to the community or to themselves, or guilty of any crime, governmental restrictions on liberty must be narrowly tailored to promote the government’s articulated interests.
*1370As the majority aptly demonstrates, the INS has not shown that precluding release to child welfare agencies, church groups, immigration rights’ groups, and other responsible third parties increases the risks of flight or injury to the child. Unsubstantiated speculation that flies in the face of the historic record of successful releases to third parties cannot outweigh the children’s compelling liberty interest. On the other hand, the tragic consequences of prolonged detention are readily discernible. Nor are the INS’s liability concerns sufficient to justify confined detention. As the majority notes, the legal liability accompanying prolonged detention greatly exceeds the INS’s unproven and overblown apprehensions about legal exposure after release to a responsible third party.
CONCLUSION
While the majority and I differ to some extent in our analyses of the constitutional issues presented, our points of agreement are much more numerous. I believe that the children’s fundamental right to freedom from government detention has its roots, not only in the Constitution’s guarantee of habeas corpus, but also in the fifth amendment’s protection against deprivations of liberty without due process. I also agree with the majority’s reasoning and conclusions concerning the conditions on release and procedural due process. I write separately on these issues only to emphasize that we are dealing with the constitutionality of two distinct deprivations of liberty — the initial decision to detain and secondly the conditions imposed upon release after detention. Only when the initial and most drastic deprivation of liberty has been accomplished in a manner that comports with the Constitution can we then address the legality of the INS’s release conditions.
. Indeed, the Supreme Court’s recent opinion in Cruzan v. Director, Missouri Dep't of Health implicitly acknowledges this substantive right when it affirms the individual’s right, under the due process clause of the fourteenth amendment, to refuse unwanted medical treatment. -U.S.-, 110 S.Ct. 2841, 2851, 111 L.Ed.2d 224 (1990).
. The dissent and the original panel attach significant weight to Justice Scalia’s statement in Cruzan, — U.S. at-, 110 S.Ct. at 2859 (Scalia, J., concurring), that the due process clause "does not protect individuals against deprivations of liberty simpliciter. It protects them against deprivations of liberty 'without due process of law.’” Yet no other member of the Supreme Court joined Justice Scalia’s straitened reading of the fifth amendment.
. This regulation covers arrests of persons without a warrant. The issuance of a warrant is covered by 8 C.F.R. § 242.2(c). These arrest warrants are issued by INS officers, not neutral third parties. Thus even the presence of an arrest warrant does not indicate that the decision to detain has been reviewed by an official independent of the law enforcement function.
The majority correctly notes that a child may have the propriety of her detention or of conditions on her release reviewed by an immigration judge if she specifically requests such a hearing. 8 C.F.R. § 242.2(d). INS officers, however, are not required to inform arrested children of this right. See 8 C.F.R. § 242.-2(c)(2). This provision thus does nothing to cure the constitutional defect in the INS’s procedures. Freedom from governmental restraint is not a right reserved exclusively for those schooled in the intricacies of INS regulations. "No matter how elaborate and accurate the ... proceedings available under the [regulation] may be once undertaken, their protection is illusory when a large segment of the protected class cannot realistically be expected to set the proceedings into motion in the first place.” Doe v. Gallinot, 657 F.2d 1017, 1023 (9th Cir.1981) (footnote omitted).