HIDDEN HORRORS OF “ZERO TOLERANCE” — MASS TRIALS AND CHILDREN TAKEN FROM THEIR PARENTS
FEDERAL MAGISTRATE JUDGE Ronald G. Morgan is in his 60s, with a bright-pink face and a crisp, friendly manner — though lately he has been making disconcerting little mistakes in court. He has spent eight years on the bench in Brownsville, a small Texas city on the U.S.-Mexico border. Morgan knows how to run a court smoothly, but during a morning session I attended in early May, he announced that he’d just dealt with 35 defendants — all at one time — when the actual number was 40. And after the proceedings, he forgot to pronounce their guilt. Marshals had already led them out, so Morgan sheepishly had to call the 40 defendants back to the courtroom to correct his error. These days, he seems distracted and troubled.
That is understandable. In late April, magistrates’ courts in Brownsville suddenly turned into “zero tolerance” factories for criminalizing migrants, many of whom have no prior criminal record. Many are from murderously violent countries in Central America and have fled to the U.S. seeking asylum, and they often arrive with children in tow. It used to be rare to charge migrants seeking asylum with crimes. If they did so, they were put into detention with their children while they pursued their claims. Or they were released with supervision — along with their children. The best interests of the children were considered paramount, and those interests including keeping families together.
But now, in federal courts like Morgan’s, not only are parents are finding themselves charged with the crime of “illegal entry,” but the government is breaking up families, sending children to detention centers, often hundreds of miles from their mothers and fathers, or to distant foster homes.
These family separations had been occurring intermittently since last fall, and mass trials have been occurring off and on since “Operation Streamline” was first introduced in 2005. But on May 7, Attorney General Jeff Sessions announced that the U.S. government will prosecute “100 percent of illegal southwest border crossings.” He added that people who were “smuggling a child” will be prosecuted “and that child will be separated from you as required by law.” In practice, this means that even parents fleeing violence to protect their young children will be deemed smugglers — that is, criminals. Sessions’s announcement came just two weeks after an official with the Department of Health and Human Services told Congress that the agency had lost track of 1,475 unaccompanied migrant children it had placed with sponsors.
The anguish that parents communicated in Morgan’s courtroom, and the spectacle of dozens of migrants being convicted and sentenced en masse, in proceedings lasting just a few minutes and with only the most perfunctory legal representation, has shocked courthouse employees. And not just in Brownsville. Taking photographs of federal court proceedings is strictly forbidden. But in the federal courthouse in Pecos, Texas, someone apparently felt so bad about the new policies that they secretly shot a photo — obtained by The Intercept and published at the top of this page — of dozens of immigrants clogging a court in orange jumpsuits.
But most Americans do not attend these courts. They live far from the border, and Sessions’s new “zero tolerance” plan seems distant and theoretical. On the border itself, however, the new policy feels close and horribly real. Sessions’s policy of deliberately breaking up families is a new low in U.S. border policy. Today “zero tolerance” is playing out from Texas to California. In Brownsville, it’s driving Judge Morgan to distraction.
Until recently, the procedure that brought a handful of defendants a day to the Brownsville courtroom for criminal prosecution was straightforward. First, Border Patrol agents arrested people after they arrived in the U.S. “by swimming, wading or floating across the banks of the Rio Grande River,” as the government’s boilerplate complaint puts it. Subsequent to their arrests, the detainees were processed at a Border Patrol station that everyone complains feels as cold as an icebox: in Spanish, an hielera.
If a detainee expressed fear to the Border Patrol agents about returning to their country, criminal charges were rarely brought. When immigrants were bussed to the federal courthouse in Brownsville, attorneys from the Federal Public Defenders office also asked the migrants if they feared returning to their country. If anyone expressed credible fear, the public defenders asked the federal prosecutors to drop the criminal illegal entry charges and refer the person directly to the asylum system.
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