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Why “the law is the law” is the Wrong Answer

In April of this year, the Trump administration, speaking through Attorney General Jeff Sessions announced a new “zero-tolerance” policy for dealing with those who cross our borders illegally. The tolerance that was being eliminated was that which allowed parents and their children to be put in detention facilities, but remain together while their case was waiting to be heard by a judge. Because of the backlog of cases, many families were held indefinitely, which was ruled illegal by a federal judge and so they were often released to await trial. Many never showed up and disappeared into the world of illegal immigrants. This earned the program the name of “catch and release” by the Trump administration. Back in October of 2017, the Trump administration began experimenting with a policy of arresting and jailing parents and then declaring their children “unaccompanied alien children” and separating them from their parents and putting them in detention centers run by the Department of Health and Human Services. This became the official program in April after Attorney General Sessions’ announcement.

The laws governing the legal status of parents and children did not change. Parents who entered the country illegally have always been subject to prosecution and jail while their cases are awaiting trial, even if their defense is that they are seeking asylum. (If they present themselves as seeking asylum but have not entered the U.S., they are not subject to prosecution – this latter situation is called “affirmative asylum seeking” and when an asylum request is made after being caught in the U.S. illegally, it is called “defensive asylum seeking.")  What has changed is that prior to the Trump program, parents accompanied by their own minor children were not jailed unless they were also guilty of another crime or presented a threat to national security.

Clearly, what has changed has been the policy that determines how families are treated, not the law which governs this procedure. The law allows considerable variability in how it is applied. Zero-tolerance is one variation. Family detention centers is another variation, which was in effect in previous administrations.

Throughout history we have had numerous examples of laws that could produce harm if applied without thought to their humanitarian consequences. The  Fugitive Slave Act of 1850 fined anyone $1000  if they aided a runaway slave and also refused slaves the right of a jury trial. Black Codes and Jim Crow Laws segregated blacks from whites, prosecuted Blacks as vagrants if the refused to sign onerous work contracts with White landowners, and kept Blacks and Whites from marrying. Under Public Law 503, 127,000 Japanese-Americans were placed in detention camps during WWII, many of them losing their possessions, because of the belief that they might be more loyal to the country of their ancestors than to the U.S. As late as 1967, fifteen states still had laws preventing marriage between people of different races, all of them overturned that year by a Supreme Court decision.  In 2003, the Supreme Court ruled that “Sodomy Laws,” which made homosexuality and some sexual practices even between married heterosexual couples illegal were unconstitutional. Such laws were still on the books in fourteen states at the time.

Many of the egregious laws mentioned above were applied differently or not at all by different states and municipalities. In virtually all cases, “zero-tolerance” policies would now be seen as inhumane, based upon prejudice and, looking back, can be seen as robbing people of their fundamental rights.

It’s not a fundamental right to enter a country illegally. It is a fundamental right to protect one’s children, for children to remain with their parents unless it is impossible to do so, and to have one’s day in court without undergoing cruel and unusual circumstances while awaiting that court date. The situations in the countries from which the majority of the families crossing our border are fleeing are horrendous and life threatening to the children. The so-called “northern triangle” countries of El Salvador, Guatemala and Honduras, from which the majority of these families are fleeing, have soaring homicide rates, rampant drug gang violence, dysfunctional legal and law enforcement systems and unemployment rates from 30-65%. The source of many of their ills is the lucrative drug trade in the U.S. 

Parents are doing what they believe they must do to try to give their children a chance at a better life. A zero-tolerance arrest policy that separates families is inhumane. It is based on the kind of prejudice that claims, as our president has, that we are becoming “infested” (a word normally used for insect and animal pests) with immigrants, or that prompted an administration supporter on CNN to refer to illegal immigrants as “invaders.”  By implementing this policy, the U.S. has abdicated any moral leadership in the world that it could still claim. It has put property rights above human rights. It values territory over people. There is no denying this, and our country should be ashamed of itself for allowing this to happen. Laws are meant to make us all feel safer. The implementation of laws using policies that make some of us feel safer while removing the safety of maintaining a family from others—whether they are legal U.S. residents or not— is not right. When we see other countries doing such things we object. We need to stop doing it ourselves.


Note: At the time of this writing, President Trump is considering an executive order to change this policy. I hope he signs it and we can leave this period of national disgrace behind. 

Reader Comments (13)

He may sign what he will, Casey, but this period of national disgrace will be with us for a time since children who've been sent to detention centers and/or to foster homes in other states will have to be retrieved and reunited with parents, prolonging the time in which both sides will be distraught. The world will not forget, so it'll be very difficult for the United States to talk about human-rights abuses with other countries.

June 20, 2018 | Unregistered CommenterAnca Vlasopolos

This was never a case about valuing property rights over human rights. It’s a case about valuing lawfulness over anarchy. Besides, the separation policy only applied to felonious, second-time offenders seeking defensive asylum. Now that President Trump has mercifully signed the executive order to end parent-child separation, l hope people will be just as strongly advocating for the children of United States felons to be housed with their parents. This type of separation must be equally immoral and must generate an even greater stain on the American panorama since it is far more widespread and devastating.

June 20, 2018 | Unregistered CommenterMark Wheeler

Merciful? Trump is about as merciful as a guy who promises to stop beating his wife. A U.S. citizen accused of a felony can live with his/her family, provided he/she can make bail, until convicted and sentenced. These people being separated from their children haven't been convicted and sentenced. They are under arrest, awaiting their day in court. And I don't buy the argument that the policy is being applied only to "felonious, second-time offenders seeking defensive asylum." Sounds like an "alternative fact" to me.

June 20, 2018 | Unregistered CommenterC.W. Spooner

Why don’t we make sure that all accused felons can stay with their kids regardless of their economic status? President Trump is a remarkably merciful man. No president in my lifetime has so strongly advocated for the safety and well-being of the American worker and the American family. If you think I’m wrong about who was being impacted by separation, look it up. I’m right. Alternatively, you’re not.

June 20, 2018 | Unregistered CommenterMark Wheeler

I can’t find any statement to the effect that the separation policy applies only to second time offenders. In fact , many of those being held are being held on the misdemeanor offense of crossing the border illegally, which only applies to first time offenders .. If they go to trial quickly and plead guilty the can reunite and go back (if they can locate their children). If they apply for asylum, they remain separated. This info comes from a (biased) article in The definitely right wing National Review. https://www.nationalreview.com/2018/05/illegal-immigration-enforcement-separating-kids-at-border/amp/

June 20, 2018 | Unregistered CommenterCasey Dorman

Prior to the zero tolerance policy, most first time offenders not charged with other crimes We’re out in detention and then deported but never jailed for a crime. Only those jailed (ie second time crossers or those charged with another crime) were jailed and charged as criminals, this separating them from their children because the parent was in prison. Under zero tolerance, all border crossers, including first time offenders are charged as criminals and jailed ( that’s what zero tolerance means), resulting in separation from their children. These are not alternative facts. They are the program as described by Jeff Sessions.

June 20, 2018 | Unregistered CommenterCasey Dorman

Do you honestly believe that separating children, including "tender age" children, from their parents contributes to the "safety and wellbeing of the American worker and the American family"? And if your answer is yes, then why did Trump issue today's executive order? The administration set this policy in motion and then tried to hide the impacts. Where are the "tender age" kids being held? Where are the girls? What are the protocols for allowing parents to contact their kids? Are the 2,300+ children currently being held going to be reunited with their parents? What's the process for doing that? It's fine if you believe you are right. I think the American people are coming to a different conclusion. Let's see how it goes. .

June 20, 2018 | Unregistered CommenterC.W. Spooner

As the National Review article clearly states "The criminal proceedings are exceptionally short, assuming there is no aggravating factor such as a prior illegal entity or another crime. The migrants generally plead guilty, and they are then sentenced to time served, typically all in the same day, although practices vary along the border. After this, they are returned to the custody of ICE.

If the adult then wants to go home, in keeping with the expedited order of removal that is issued as a matter of course, it’s relatively simple. The adult should be reunited quickly with his or her child, and the family returned home as a unit. In this scenario, there’s only a very brief separation."

So basically, a first-time offender's children are given a few hours in day care while the parent pleads out and is released, where they can then collect their kids and at a later point, possibly return to a checkpoint where they can then properly apply for asylum. That's a fairly meager penalty for anybody caught trying to sneak into a country illegally.

Separating children from parents (in the cases where it was more than just a day-care stay) has nothing to do with safety, it's merely an unavoidable consequence of a parent's wrongdoing. The way in which the parent is prosecuted is in fact about safety, which is why the zero tolerance policy remains in the President's executive order. The EO merely allows for extended communal housing of families where the parent is awaiting an outcome of their case. The President's EO is obviously an illegal stopgap measure designed to give congress a chance to change the law so that the children can stay with the parents beyond the current twenty day limit. I'm not suggesting it's not a horrible thing to separate parents and young children in these circumstances, because it is. But the US is a remarkably generous country and we allow anybody to hold their hand up at a border crossing and ask for asylum or protection. We've always treated asylum seekers incredibly well. Sure, there is sometimes a lengthy investigation involved into any asylum seekers claim, but the families have always been allowed to stay together in that circumstance. So for the life of me, I'm not sure why asylum seekers are trying to sneak into the country illegally. Why knowingly break US law when you get a much better deal by respecting the law? We all live that philosophy everyday. It's a great deal. We get all the freedoms and benefits of this country by following the laws that have been created to protect us. Anybody who wants to come here should start by doing the same.

June 21, 2018 | Unregistered CommenterMark Wheeler

As I said, the National Review article is biased. While it claims that a trial can happen in a day, by making all the proceedings criminal ones, the actual amount of time has bloomed into weeks- which is why people have said that assigning more judges could alleviate the process. Furthermore, claiming asylum doesn’t compound an offense since asking for asylum isn’t an offense-it is the reason the families came to the U.S. and by the way, the claim that immigrants are jailed only if they have a second felonious charge or crime against did turn out to be an alternative fact.

June 21, 2018 | Unregistered CommenterCasey Dorman

There’s a big difference between being jailed for a crime and being detained for processing. First time offenders are detained, screened, processed and released. It may have the appearance of being jailed, but it’s really just a way to identify these particular migrants and impress upon them that the next illegal crossing is a jailable offense. I’m also curious why no one seems worried about the ten thousand other children who were separated from their parents prior to illegally crossing the border? Where is the outrage at the people and processes responsible for that tragedy? And who gets credit for caring for and attempting to reunite these children with the parents who’ve abandoned them? Selective outrage is a political attitude, not a humanitarian belief system.

June 21, 2018 | Unregistered CommenterMark Wheeler

I'm relieved to learn that separations will amount to a few hours in day care. Does Jeff Sessions speak Spanish? Maybe he could drop by and teach a Bible lesson, or two.

June 21, 2018 | Unregistered CommenterC.W. Spooner

Mark: the whole point of “zero-tolerance” is that everyone is jailed and awaits trial- even first time offenders. That’s why it’s called zero tolerance, and that’s why it resulted in family separations, because kids can’t accompany their parents to jail.

June 21, 2018 | Unregistered CommenterCasey Dorman

“Zero tolerance” is really just a way of saying no more “catch and release.” Catch and release involved only felonious migrants, not the first time offenders. They are still being detained.

June 21, 2018 | Unregistered CommenterMark Wheeler

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