GUEST COLUMN: Bipartisan group of former U.S. Attorneys to Sessions - End family separation

Posted June 20, 2018 5:00 a.m. EDT

EDITOR’S NOTE: The following was signed by from more than 75 former United States Attorneys, including Ripley Rand (Middle District, N.C.), Anne Tompkins (Western District, N.C.) and Thomas Walker (Eastern District, N.C.) For a full list of signers, click here.

Dear Attorney General Jefferson B. Sessions:
We write as former U.S. Attorneys who have served under both Republican and Democratic presidents. Like the majority of Americans, we have been horrified by the images and stories of children torn from their families along our nation’s Southwest Border.  And like a majority of Americans, we are appalled that your "zero tolerance" policy has resulted in the unnecessary trauma and suffering of innocent children. But as former U.S. Attorneys, we also emphasize that the "zero tolerance" policy is a radical departure from previous Justice Department policy, and that it is dangerous, expensive, and inconsistent with the values of the institution in which we served.

When parents and their children arrive at our border, particularly when they come seeking the protection of the United States under our asylum laws, we witness a universal story of humanity: parents willing to face all odds to protect their children. Every administration for decades has grappled with the complexities inherent in families illegally crossing our borders. Until now, every administration has chosen a path that has balanced the need for effective enforcement and deterrence with humanity and compassion.  This balanced approach is especially critical when we are faced with persons seeking entry who may be eligible under established U.S. laws for the protection of asylum, as they flee persecution, horrific violence, or danger in their home countries.

In the name of deterring illegal immigration, your "zero tolerance" policy abandons that balance. Instead, your new "zero tolerance" policy requires federal prosecutors in U.S. Attorney’s Offices in Southern California, Arizona, New Mexico, Western Texas, and Southern Texas to depart from a decades-long approach — approved by Republican and Democratic administrations alike — for charging illegal immigrants.  Under your policy, federal prosecutors in those districts must charge, arrest and detain the individual in each and every “illegal entry” case under 8 U.S.C. § 1325(a). “Illegal entry” constitutes a Class B misdemeanor — a crime that has a maximum punishment of only six months in jail.

In our experience, U.S. Attorneys under both Republican and Democratic administrations have for decades been given discretion to determine how and when to charge misdemeanor illegal entry cases to address the needs of their districts. Crucially, the Department of Justice has also worked to ensure that families apprehended while attempting to enter the country illegally are treated with compassion, are detained together whenever possible, receive expedited deportation, are allowed to remain together pending an asylum determination, and are always reunited. Now, under your policy, because children cannot accompany their arrested parents to an adult criminal detention center, these children, apparently including infants and toddlers, are routinely separated from their parents.  Under the auspices of the Department of Health and Human Services, the parent-less children  —  who often do not speak English  —  are transferred to and detained at a tent city, a refashioned Wal-Mart, or other detention facilities in cities like Chicago, thousands of miles away from their parents.

The law does not require the systematic separation of families under these circumstances. Collectively, as former United States Attorneys, we have prosecuted tens of thousands of cases involving far more serious crimes than misdemeanor illegal entry offenses. And even in those far more serious cases, decisions involving the separation of children from their parents were made with extraordinary caution, and only after an evaluation of the specific circumstances of a particular case.  Today, by contrast, your "zero tolerance" policy has produced a tragic and unsustainable result, without taking into account each family’s specific circumstances. Under your policy, families and children are greeted with unexpected cruelty at the doorstep of the United States, instead of with relief or asylum in the greatest country in the world.  Until now, no Republican or Democratic administration, nor any prior Attorney General, has endangered children in order to deter illegal entry.

Traumatizing children by separating them from their parents as a deterrent for adult conduct is, in our view, sufficient reason to halt your policy. But as former U.S. Attorneys, we know that the collateral consequences of this ill-advised approach ultimately render us less safe as a nation. Running a United States Attorney’s Office, or the Department of Justice itself, requires the thoughtful and careful management of limited resources. In short, there are only a finite number of federal prosecutors to address the broad swath of dangerous and illegal activity that takes place in our country.

It is a simple matter of fact that the time a department attorney spends prosecuting misdemeanor illegal entry cases, may be time he or she does not spend investigating more significant crimes like a terrorist plot, a child human trafficking organization, an international drug cartel or a corrupt public official. Under your "zero tolerance" policy, firearms cases, violent crime cases, financial fraud cases, and cases involving public safety on Indian reservations all take a back seat to these lesser, weaker misdemeanor cases. In fact, requiring U.S. Attorneys to bring these misdemeanor cases in every instance detracts from your own stated priority to fight gangs and violent crime by groups such as MS-13.

The combination of unnecessary child trauma and dangerous national security impact is exacerbated by the crushing expense of arresting and detaining every “illegal entry” misdemeanor defendant. At a time when federal prison costs are threatening to blow an unfillable hole in the Department of Justice’s budget, the United States must now bear the cost of detaining parents and their entire families for months as their misdemeanor cases wind through the court system. This fiscal burden also falls on the Department of Homeland Security, whose officers and agents process the parents; federal defenders’ offices who represent them; the Department of Health and Human Services which houses the children; and the already overburdened federal courts which must provide these parents due process and, ultimately, justice.

As former U.S. Attorneys, we know that none of these consequences  —  nor the policy itself  —  is required by law. Rather, its implementation and its execution are taking place solely at your direction, and the unfolding tragedy falls squarely on your shoulders. It is time for you to announce that this policy was ill-conceived and that its consequences and cost are too drastic, too inhumane, and flatly inconsistent with the mission and values of the United States Department of Justice. It is time for you to end it.  Effective leadership and the integrity of the world’s leading law enforcement agency require nothing less.

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