Today is Juneteenth, and I have an oped on CNN.com drawing a parallel between family separation under slavery and family separation under contemporary zero tolerance. Here is the gist:
On Juneteenth, let's commit to ending separation of parents and children at the border
On this day in 1865 — commemorated now as Juneteenth — news of emancipation reached the enslaved people of Texas. The complete abolition of slavery, which became irrevocable later that year with the ratification of the 13th Amendment, meant the end of involuntary servitude and the beatings, assaults and torture that often accompanied it. It also meant the end of forced family separation.
It is likely that no one celebrating the original Juneteenth could have imagined that family separation would again become officially authorized — in fact, required — by the United States government over 150 years later.
And yet here we are in 2018, watching the Trump administration forcibly remove children, including nursing infants, from their mothers, in the name of a "zero tolerance" policy toward illegal immigration.
You can read the entire piece here.
Excellent essay, but there is no mention of natural law theory …
Very well done Steve. I couldn't agree more, and I am honestly surprised that we haven't seen resignations over this issue.
Our Dear Leader is keeping his promise to the one people. That was when America was Great. Spot on. Its an exciting time. Go have me a dry chicken sandwich and greasy waffle fries. Bye
I'm very concerned about this issue, but in all the press coverage I've seen, I have yet to see an actual solution. First, it is important to acknowledge that separations such as this are common place in law enforcement – if both parents are arrested for operating a meth lab and there is no appropriate available family member, any minor children will be separated and held by state family services. Of course, here, the violation (illegal immigration) is not nearly as severe, which is what makes the impact of zero tolerance so disturbing. It is also important to acknowledge that zero tolerance is not creating this problem – any detention of parents illegally crossing the borders with children results in family separation (and there were family separations under the previous administration). But zero tolerance does dramatically increase the number of family separations.
I think it is important to look at the alternatives, because it is always easy to criticize something as awful as family separations, but without putting forth real policy alternatives, we accomplish nothing.
The following are what I see as the available policy options and likely results:
1. Don't enforce immigration law. This may appeal to many, but both Democrats and Republicans have largely agreed over the years that the U.S. should not have open borders.
2. Enforce immigration law through catch and release. This would ameliorate, but not end family separations. The criticism of catch and release is that it is effectively almost the same as open borders – court dates are often missed with impunity. It does not end separations because (i) unless the release occurs almost immediately, there will still be some incarceration pending processing and short-term family separations, (ii) if the parents are later denied entry, they will be held for deportation, resulting in family separation, and (iii) if the parents ignore court dates and are later caught, they may be held for deportation, resulting in family separations.
3. Enforce immigration law with zero tolerance (or really, anything more severe than catch and release), but with an exception for families with children. This one sounds right, but it creates bad incentives. Once border crossers and, more importantly, human smugglers, learn that illegal crossers with children are exempt from holding, the obvious incentive is to increase the number of dangerous border crossings with children. This may well be an example where the feel-good cure just makes the situation worse.
4. Enforce immigration law with zero tolerance, but give parents with children the option to waive asylum and be deported immediately with their children. This still has the problem of selective enforcement creating adverse incentives, but the incentive (avoidance of prosecution for illegal crossing) is not nearly as high as the incentive in option no. 3 (a free, albeit potentially temporary, free pass into the U.S.) and can be further mitigated by a one-time policy which is clearly communicated to the immigrant. Under this scenario, the immigrants themselves make the choice of the lesser of two evils. If the situation from which they are fleeing is sufficiently bad, a temporary family separation may be a price well-worth paying. If not, they likely would not qualify for asylum in any event. Of course, this still does not solve the problem as family separations would still occur.
5. Enforce immigration law, but create housing or humanitarian camps in which families can remain together. This option actually solves the family separation issue without creating de facto open borders or perverse incentives. However, in addition to the cost, creating what are, in effect, refugee camps on our southern border hardly sounds appealing and is likely to create a host of additional problems similar to the refugee camps now existing in other locations.
Please let me know if there are any better policy options which I've missed.
Just to be clear. I am not trying to defend the current situation. I just think it's time to move beyond the easy first two steps: identify the problem and vilify the Trump administration, and time to move to the solution stage. And if the solution requires absolutely no family separations, it should be clear that we can't just revert back to the previous administration's policies.
r – "separations such as this are common place in law enforcement" is not correct. In fact in pretty well every jurisdiction I have worked (US, Japan, UK, Ireland) this sort of separation is remarkably rare.
First, the existence of minor children is a major factor considered by most judges when the issue of bail arises.
Second, state, county or city 'child welfare' or 'family services' will usually go to considerable lengths to try to place the children with a suitable relative, i.e., a sibling, aunt, uncle or grandparent – and this is almost always treated as preferable to separating the child from family.
Only when there is no viable family member to take custody is the child taken into custody in the way that is happening here. Moreover, as I pointed out in my post, neither DHS or HHS have experience in operating these sorts of custody systems – which raises serious risks. These children are not just being take from their parents, they are being taken by organisations who are transparently 'half assed' when it comes to managing these things. That's a recipe for disaster.
By the way, what does enforcing immigration law with zero tolerance mean – other than making you tumescent? Do you mean ignoring legitimate asylum claims? Do you mean sending parents and children back into war zones. It sounds so macho – but it ignores the realities. But hey, whatever helps you sleep at night!
Try and grasp something – many of these people are fleeing circumstances that are singularly awful – the choice you offer them is between bad and worse.
The migrant and refugee problem is not something that is solved by border enforcement – it is a problem that starts in the countries that these people are fleeing from – from the lawlessness (promoted by US gun sales, at least 60% of the guns recovered from their gangs were legally sold in the US), from their damaged economies, from the mess that the US has often not only not done anything to fix, but from time to time actively promoted.
r – indeed "First, it is important to acknowledge that separations such as this are common place in law enforcement – if both parents are arrested for operating a meth lab and there is no appropriate available family member, any minor children will be separated and held by state family services." is just not true – because as it happens most judges, police officers and prosecutors are not malignant lunatics.
As I said: "if there is no appropriate family member available."
I suppose you can argue over the meaning of commonplace, but this does happen on regular basis:
"While there is little reliable data to indicate how many children each year are in need of emergency placement because of parental arrests, Cole indicated that thousands of children could require such care."
https://www.usatoday.com/story/news/nation/2014/07/31/children-left-behind-parents-arrested/13333909/
See e.g. http://www.nmlea.dps.state.nm.us/safePursuitAct/docs/Children%20of%20Arrested%20Parents%20Protocol.pdf
7. If the non-arrested parent is not available, and the officer is unable to identify another adult to care for the children, SCI can provide the officer with contact numbers for shelters in the area closest to the place necessary.
8.If the officer believes protective custody is necessary, SCI will notify the CYFD worker
on-call. The CYFD worker will ask any officer placing a child in protective custody to sign a “Statement of Reasonable Grounds for Emergency Custody.”
You can argue over the word commonplace, but these separations do happen in criminal proceedings with regularity:
"While there is little reliable data to indicate how many children each year are in need of emergency placement because of parental arrests, Cole indicated that thousands of children could require such care."
https://www.usatoday.com/story/news/nation/2014/07/31/children-left-behind-parents-arrested/13333909/
Also, http://www.nmlea.dps.state.nm.us/safePursuitAct/docs/Children%20of%20Arrested%20Parents%20Protocol.pdf
7.If the non-arrested parent is not available, and the officer is unable to identify another adult to care for the children, SCI can provide the officer with contact numbers for shelters in the area closest to the place necessary.
8.If the officer believes protective custody is necessary, SCI will notify the CYFD worker on-call. The CYFD worker will ask any officer placing a child in protective custody to sign a “Statement of Reasonable Grounds for Emergency Custody.”
You can argue about the word commonplace, but these separations do occur in the criminal process with regularity:
"While there is little reliable data to indicate how many children each year are in need of emergency placement because of parental arrests, Cole indicated that thousands of children could require such care."
https://www.usatoday.com/story/news/nation/2014/07/31/children-left-behind-parents-arrested/13333909/
Also – http://www.nmlea.dps.state.nm.us/safePursuitAct/docs/Children%20of%20Arrested%20Parents%20Protocol.pdf
7.If the non-arrested parent is not available, and the officer is unable to identify another adult to care for the children, SCI can provide the officer with contact numbers for shelters in the area closest to the place necessary.
8.If the officer believes protective custody is necessary, SCI will notify the CYFD worker on-call. The CYFD worker will ask any officer placing a child in protective custody to sign a “Statement of Reasonable Grounds for Emergency Custody.”
"Try and grasp something – many of these people are fleeing circumstances that are singularly awful – the choice you offer them is between bad and worse."
I provided 5 policy alternatives, none of which I particularly like. So far, you have provided none. I can respect those that argue in favor of open borders – there are good arguments in favor of that, as well as good counter-arguments. I could also respect someone that argues that catch and release is the best alternative, although it is certainly not ideal.
My point here is that you can't just say this is a really bad situation and isn't Trump so horrible. You need to provide and support some type of viable solution.
The Obama administration addressed this problem through some catch and release and quite a lot of family detentions. I think the previous policies were generally better than the current policy, but as described in my post, both of these solutions have real problems. See also https://www.americanimmigrationcouncil.org/research/guide-children-arriving-border-laws-policies-and-responses Thus, going back to the Obama policies may make this somewhat better, but it certainly doesn't solve the problem.
As for the critique that the problems start in the countries that these people are fleeing from, I completely agree. As a long-term solution, we certainly should try to help build up Cental American countries. But that won't solve anything for years, if not decades. The current crisis needs a short-term solution, and so far, I haven't heard anything that really works.
r,
What you're probably looking for is Family Detention Purgatory. A facility where families can be kept together, but where they are not expected to remain for very long. I don't think anyone wants people living for years in a large refugee camp like in Jordan. But there's no reason for people to stay after their case is processed.
Either they're deported, or they're given a legal refugee status and can get integrated into the rest of the country. You're in the camp only so long as it takes to determine if you're allowed to stay; if you are allowed to stay, you can stay wherever.
r – again you are missing the point. One deals with an officer faced with an arrested parent and no immediately available carer – it is not a long term, send them to a camp or foster care for weeks solution, and because police officers are mostly not malignant lunatics, they do their best to find a family member or friend to take the child. You, in your zero tolerance ecstasy, are converting this to long term custody.
If the officer thinks "protective custody" is necessary is because the officer finds the child in actual danger from the child's care-givers – not because the police are creating that danger.
You need to treat your love of the expression "zero tolerance" – how about – place a brick and a hammer on your desk, and each time you type the words '
"zero tolerance" place and finger on the brick and give it a slam. It's a sort of aversion therapy … who knows, it might work. At least it might make you think.
Ad for your defence, it has not led me to conclude that Trump is any less horrible, but his defenders deserve some of that glory….
[M][a][c][K] – This is really tangential, but what support do you have that child-parent separation is uncommon in the criminal justice system. Of course, they look to an unarrested parent or family member, but they are not always available, willing, or safe. And this isn't just short-term. If the parent is arrested, they might or might not be released on bail. But this also applies if the parent is convicted and sent to prison. That is often a much longer duration than anything happening at the border.
Also tangential, but could you tell me what part of my post has generated so much vitriol in your responses. Did I say or even imply that zero tolerance is the best solution or that children should, as a matter of policy, be separated from the parents as punishment?
Derek Tokaz –
Considering this further, I think I agree that the family detention option might be the most palatable so long as the immigration decisions can be made relatively quickly and the detention conditions can be maintained at a reasonable high standard. I do not know whether either of those requirements can reasonably be assumed.
r – knowledge and experience of practicing law. You maintain it is commonplace – it is not.
Frankly you are BS-ing and trying to fish around for justifications. In the context of the criminal justice system as a whole, placing children in prison, or separating them from their custodial parent or family is something the criminal justice system goes to very great lengths to avoid, on grounds of common decency as well as cost. When parents are convicted the usual approach is to try to place the child with relatives or the other parent. Taking the child into custody is considered an extreme last resort.
Why the vitriol – because you are trying to present specious and dishonest argument to defend a disgraceful policy, a shameful policy. But hey, your a tough guy, you can type "zero tolerance." So yes, the vitriol is because I have reached imho a conclusion about your moral character and common decency. You don't like it – well tough.
Some of you might benefit from learning about the prior administration's actions and policies. As usual, these issues are not "new" and the way the prior administration approached these issues is directly relevant to your speculations.
As for the disgusting comparisons to slavery, to the internment, to the Holocaust!, all one can say is that this demagoguery is reprehensible.
If there is any comparison to slavery here, it is the elite liberals (conservatives too) who exploit illegal immigrants' labor: to clean, to garden, to care for their children. In the elite, almost always segregated communities in which these white liberal lions live, the joke has been for years that, tickle one of their toddlers, and the child will exclaim "Mas!"
These liberal lions have no problem benefitting from the suffering and exploitation of those who come to this country for "opportunity." They exploit them without a second thought.
That is a modern form of slavery (substandard working conditions and pay for elite white people who couldn't care less about their servants, so long at their toilets are clean, their pristine lawns trimmed, their construction done, etc.). Attempting to stem a wave, as the prior administration did in 2014, is nowhere near as morally reprehensible as making those who slip thru instruments of wealth's privilege.
Great column, Steve. Thank you.
How can any human being be illegal? I have no problems with open borders. When I was a kid, we stopped in Canada for some ice cream. Rather than spending money on ICE, Border Patrol, Immigration Courts, why not give the money to local law enforcement to fight real crime? People only become a problem when they break the law and that's usually a local issue.
The more I think about "liberal concern" for "the kids" the more I think, not only about the typical elite, white liberal exploitation of immigrant labor (cleaning their toilets, picking their fruit, washing their cars, gardening their stately homes in segregated neighborhoods, caring for their spoiled children, etc.), but also the vulgarity of the "liberal" desire to import voters (they lose the white vote, college educated included, by substantial numbers, including in the most recent election).
How often do you hear the liberals getting hysterical about the way that immigrant labor is treated, especially by these white liberals themselves, in their everyday lives?
Yes, they treat their servants just as the rich always have, and, as such, they reveal themselves and their crass demagoguery in the media (timed precisely to drown out the DOJ IG report and testimony over the past two days.)
Of course slaves were born into slavery. Persons trying to enter the country without authorization do so voluntarily. I don't think they are equivalent populations.
If it weren't for open borders and immigration, I wouldn't be here defending three bill retail theft cases. Golly, I never thought about it: But some real American with the long form birth certificate, no less, would not have the effective assistance of counsel for boosted liquor from Jewel. Life is strange…taking us down these paths….Spiritual.
MACK @3:24 "knowledge and experience of practicing law. You maintain it is commonplace – it is not."
On the Internet no one knows your a dog. So do you have any verifiable sources or do we have to take Fido's word for it?
My own fleabag experience in the law tells me that, when a parent is detained, separation from his/her child is the rule rather than the exception. That is true whether the detention is for a criminal conviction, a nonbailable charge, contempt, civil confinement, etc.
And yes, placing a child with another relative is still separating the child from the detained parent. If ICE could find relatives who were nearby and lawfully in the U.S. to place these children with, I'm sure that's what they would do, if only to contain costs. The point is that ICE is not doing anything that the government does not routinely do when it detains parents under analogous circumstances.
Steve — effort points for the slavery analogy, but no A without a Nazi reference. Please rewrite.
IF you dare, and one suspects that a liberal lion can't allow himself to know the truth, here are photos of the camps operated by the prior administration:
dailycaller
add dot
com/2018/06/19/photos-obama-immigration-detention-facilities/
Congratulations to [M][a][c][K] – he is a great example to us all. Like many on both sides of the left/right debate, he thinks he can judge moral character from a couple of posts in the comments section and, of course, his self-righteousness will take a back seat to no one. He misreads others' arguments to push his own agenda, and his own personal experience trumps evidence-based arguments. At the same time, he provides no solutions, just ad hominem attacks.
This self-righteous indignation and inability to even think through arguments (on a law faculty website no less) is a large part of the problem, exhibited in equal parts by neo-cons, nationalists, and ivory tower liberals.
Thank you [M][a][c][K] for this great example of how to argue like Trump from the left.
Thank you Steve.
And to "r" here is my solution: do nothing, let the immigrants come and work. A person doesn't risk everything, come to a strange country, take any possible job, and send all their money home — if they are here to create trouble. They are here to work and that is what they do. Just leave them alone. It's a fake "problem" that Trump is trying to solve.
Chicago D
You appear to be just repeating speculative tropes.
The studies appear to show that about 35 – 40% of undocumented persons in this country are unemployed. (THis is different from the "unemployment rate" which uses a "workforce" measure.) It is difficult, to be sure, to get information that is precise on these matters, for obvious reasons, and most news agencies avoid reporting on this issue.
Please correct these stats, if you are able.
Today marks the observance of the UN’s “World Refugee Day” (‘International Migrants Day’ is observed on December 18), so I’m posting notice of my latest (87th) bibliography, The Ethics, Law, and Politics of Immigration & Refugees: A Select Bibliography. It is freely available on my Academia page for viewing and/or download as a pdf doc (unlike, say, Oxford bibliographies online). Most Americans are notoriously poorly educated and thus ill-informed on any number of subjects germane to humane and principled government and governance in a would-be democratic society, and this topic exemplifies this inexcusable ignorance on an appalling scale. What follows is the introduction:
This compilation, which is not intended to be exhaustive (although I hope it’s representative of the extant literature), was motivated in part by way of honoring the United Nations’ World Refugee Day—20 June—in 2018. This date “commemorates the strength, courage and perseverance of millions of refugees” who are forced to flee their home countries owing to “a well-founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group, or political opinion” (United Nations 1951 Refugee Convention) or in order to escape the devastating effects of natural or human-made disasters. A related UN observance is International Migrants Day (December 18), which is viewed as “an opportunity to recognize the contributions made by millions of migrants to the economies of their host and home countries, and secondly to promote respect for their basic [international legal] human rights.”
As with most of my bibliographies, two constraints affect the contents’ scope: books, in English. These constraints are not meant to imply sources in other languages, or journal articles, are any less significant for research purposes. Not all of the titles fall, strictly speaking, within the “ethics, law, and politics” of immigration and refugees, but in such cases there are sufficient family ties to warrant their inclusion. I welcome suggestions for additional titles (Chris Bertram* suggested a handful of titles upon posting of the first draft, for which I’m grateful.)
* His latest book is a work of political philosophy (normative theory): Do States Have the Right to Exclude Immigrants? (Polity Press, 2018).