The Jury Talks Back

6/19/2018

The Recasting of Prosecution of Illegal Border Crossers as an Attack on Children

Filed under: Uncategorized — Patterico @ 7:28 am

Everywhere you look, people are talking about how Donald Trump is putting children in cages, and separating children from their families.

It’s accompanied by what is certainly sad audio of children crying because they have been separated from their parents.

It would be easy to get the impression that the Trump administration recently came to the decision to start arbitrarily separating families for cruel sport. A typical headline can be found in the New York Times: How Trump Came to Enforce a Practice of Separating Migrant Families. And yet that very article admits:

Technically, there is no Trump administration policy stating that illegal border crossers must be separated from their children. But the “zero tolerance policy” results in unlawful immigrants being taken into federal criminal custody, at which point their children are considered unaccompanied alien minors and taken away.

The lefties at PolitiFact elaborate:

Attorney General Jeff Sessions in April announced a “zero-tolerance” policy, meaning every person caught crossing the border illegally would be referred for federal prosecution.

A good number of these people are adult migrants traveling with children. By law, when adults are detained and criminally prosecuted, their children cannot be housed with them in jail. Instead, kids are placed in a Department of Health and Human Services shelter until they can be released to a legal guardian.

Past Presidents gave illegals a pass on prosecution if they brought their kids with them. Trump isn’t. That’s the difference.

Now: whether we have devoted sufficient resources to be able to actually enforce such a zero-tolerance policy is a separate question. But the media is simply taking the necessary consequence of a policy of prosecuting lawbreakers, and acting as though it is the entire point. It’s not. Prosecuting lawbreakers is the point.

Ultimately, someone who is not a citizen can keep their family together through a simple expedient: do not enter the United States of America illegally. If you want to enter, follow the laws and get in line with everyone else.

13 Comments »

  1. Too much noise on the main site so I’m posting this here.

    You wrote:

    Now: whether we have devoted sufficient resources to be able to actually enforce such a zero-tolerance policy is a separate question. But the media is simply taking the necessary consequence of a policy of prosecuting lawbreakers, and acting as though it is the entire point. It’s not. Prosecuting lawbreakers is the point.
    Ultimately, someone who is not a citizen can keep their family together through a simple expedient: do not enter the United States of America illegally. If you want to enter, follow the laws and get in line with everyone else.

    Emphasis mine.
    I don’t think it is accurate to say that separating 2000 children from their families is a necessary consequence.
    1. Several representatives from the white house have made it clear that they’re using the separation as leverage to achieve their policy goals. This includes the president and his chief of staff.
    2. The AG has made it clear that this is also a deterrent.
    3. Given the relatively small number of children in question and the vast resources of the federal government I’d like to understand what alternatives were investigated and rejected before the current approach was chosen.
    4. The last several administrations haven’t had to use this approach. What forced us into this without developing countermeasures? Why was this the lesser evil?
    5. Even if this had to happen, the current situation was foreseeable. What steps were taken to prepare people? What steps were taken to mitigate? What plans are in place to address the unfortunate consequences as quickly as possible?
    I think this is a horrible, foreseeable consequence that competent professionals should have foreseen. They probably did. If those competent professionals were acting like decent human beings they would have taken extraordinary steps to mitigate this consequence. It looks to me like they knew it was coming and not only didn’t care, but wanted it to be unpleasant to the children and people who care about children (both these specific kids and kids in general) to achieve other policy goals.

    Comment by Time123 — 6/19/2018 @ 11:15 am

  2. 4. The last several administrations haven’t had to use this approach. What forced us into this without developing countermeasures?

    The Trump Administration is enforcing the asylum laws as written, as opposed to the expansive views used by the Obama Administration that led to a dramatic increase in asylum applications since 2012.

    Comment by DRJ — 6/19/2018 @ 4:51 pm

  3. There is much false news regarding this issue. I don’t mean merely the pictures of children in cages that the left got all hysterical about at the start (which turned out to have been taken in the Obama admin.) but the claims that these are “asylum seekers” are getting their families split up when the pally for asylum. That is patently false on several levels.

    If an actual asylum seeker family applies at the border checkpoint, they are not split up. The ones being split up are being split up because the parents decided to take their kids on a dangerous and illegal criminal act (illegal border crossing). No different from if they took the kids along while knocking over a liquor store.

    These are not asylum seekers. Think it through; if someone has a legitimate claim to asylum, what are they going to do when they reach the border? Walk up to the border checkpoint and apply for asylum and protection, or, travel to a remote area, pay 4 to 6 thousand $ per person to a coyote, and make a perilous and difficult journey across (often carrying a 40 lb. pack of drugs on their back) with a fringe benefit of imperiling their asylum claim via breaking the law? I real asylum seeker wouldn’t do that.

    I liked Patterico’s post. Well done. I’ll only quibble slightly (or rather, expand a bit) with one small part; “Ultimately, someone who is not a citizen can keep their family together through a simple expedient: do not enter the United States of America illegally. If you want to enter, follow the laws and get in line with everyone else.”

    The same actually applies to citizens, too. I’m a citizen. Suppose I decide to re-enter the country by hiking in from Mexico? Would I be arrested and prosecuted if caught? Almost certainly (it’s illegal entry). Would my kids (assuming for the sake of argument I had any) be taken away while I was in prison? Yep.

    As the saying goes, if you can’t do the time, don’t do the crime.

    Comment by Arizona CJ — 6/19/2018 @ 7:49 pm

  4. I was on a jury two years ago in a case where a party girl and her friends were driving home drunk and slammed into a grandmother on her way to her early morning shift (4am) at a job she had worked at for decades. The grandmother died at the scene. The party girl, the driver that fateful night, was on trial and was 8 months pregnant (some on the jury wondered if that was planned to make her more sympathetic). I couldn’t believe the deliberations in the jury room where half the jury wanted to go easy on her because she was pregnant and had another kid she was caring for as a single mother (that kid was born a few years prior to the night of the accident). I’ll never forget the look on the faces of that poor grandmother’s family when I had to stand and deliver the only sentence we, the jury, were able to agree upon, a sentence that I felt was far too lenient.

    Perhaps had I not been on that jury and heard these same ridiculous arguments that the left and the media (and some idiotic right-leaning figures) are making today about separating a mom from her newborn and toddler I might be more sympathetic. But every time they open their mouths to complain about this separation of families I suddenly see the faces of that grandmother’s family. The shock. The utter contempt they felt that justice was denied.

    We shouldn’t allow emotion to overrun the law, just because we don’t like the optics or consequences of the actions on the part of law breakers.

    Comment by Sean — 6/20/2018 @ 1:15 am

  5. DJR, my point was that the separation of many families in this way was not necessary, but rather a foreseeable result of decisions that were made by this administration. Further, there is evidence that they wanted this result to act both as a deterrent and as leverage in legislative negotiations. The argument that we had no choices other than status quo or family separation is a false choice.

    Comment by Time123 — 6/20/2018 @ 5:04 am

  6. How is it not necessary if you intend to enforce the law as it is written? You come into this country illegally and unsupervised as a minor, you’re detained. You come into this country with your family illegally, you’re detained. The difference is if the government then decides to enforce the law and prosecute you on criminal charges. Once that happens, then the unsupervised minors are put into facilities since we don’t prosecute minors for jumping the border unsupervised (unlike most other countries), but if you’re an adult then you’re sent to what is essentially jail. Since we don’t incarcerate kids along with their parents the kids get sent to the facility while the parent’s await trial… just like every other criminal detainment in this country.

    The only way the above doesn’t happen is if you continue the lax enforcement of the current laws and implement the old catch-and-release program.

    Comment by Sean — 6/20/2018 @ 6:46 am

  7. It is a deterrent, possibly an effective one. Enforcing laws is supposed to deter unlawful conduct. I prefer a wall and quicker adjudications/deportations. I wish Sessions had been open to that, but it’s also true we do this everyday to American citizens who commit crimes with their children. IMO Trump and/or Sessions were careless here but they weren’t wrong.

    Comment by DRJ — 6/20/2018 @ 9:16 am

  8. I’m reading that the white house is directing that all possible steps be taken to avoid family separation.
    Did they not take this action before the policy changed to zero tolerance because they didn’t think of it? Or was it because they wanted family separation to serve as a deterrent and political leverage?

    Comment by Time123 — 6/20/2018 @ 1:32 pm

  9. They’re following the law, as it was written back in the 90’s. Was Obama called out for using these separations as a deterrent even after he admitted that was exactly what his Administration was doing? No. Do I think there are better ways of dealing with this situation, sure, but I haven’t heard a single loudmouth reporter or talking head offer any such solution outside of calls for open borders and the reinstatement of catch and release.

    Comment by Sean — 6/20/2018 @ 3:07 pm

  10. My guess:

    1. Trump didn’t have a clue about this because he doesn’t care about details.

    2. Sessions announced the zero tolerance policy in April but it took time to start seeing the results of the change in policy. It’s easy to think everything is fine when problems take time to develop.

    3. Sessions wants the deterrence effect so this outcome is not negative. He may not have anticipated the PR outcome, perhaps because the press overlooked when Obama did the same thing. Maybe he thought saying “Obama did it, too” would be enough. Or maybe he didn’t think it through.

    4. Saying we won’t separate families whike adhering to zero tolerance — which means the parents will be criminally prosecuted for illegal entry — is impossible. We cannot keep families together in criminal cases unless we are willing to put kids in jail with their parents.

    5. I assume the next best thing is to buikd or lease facilities where families stay together while the parents are in criminal custoday. Maybe we can use the minimum security federal prisons or federal prison camps.

    Comment by DRJ — 6/21/2018 @ 6:03 am

  11. Sorry for the typos: build, custody.

    Comment by DRJ — 6/21/2018 @ 6:05 am

  12. A link for Obama did it, too. It isn’t a Democratic or a Republican problem, and there are no easy solutions.

    Comment by DRJ — 6/21/2018 @ 6:09 am

  13. By the way, Bernard Kerik was in a federal prison camp. It us the least restrictive federal prison but there aren’t enough of them, they aren’t on the border, and they aren’t designed for families.

    It’s clear to me that no matter who makes the decision — Congress that passes laws or the President who implements them — this isn’t something they can fix. There is no such thing as family prisons. Thus, we are back to leasing, buying or building apartments and motels to use to house families with parents arrested for illegal entry.

    It is the same as what FEMA does to house people who need shelter after hurricanes. It is expensive and disruptive to communities, but unlike that situation these people will be prisoners. Security will add far more costs and putting them in cities will endanger communities. If I were a Trump-type, I would suggest moving them to New York City.

    Comment by DRJ — 6/21/2018 @ 6:18 am

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