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"The president revels in portraying immigrants as drug smugglers in the making, using the mere mention of drugs to justify the harshest criminal treatment," writes Trivedi. "America has used this war-on-drugs playbook for decades to jail its black and brown citizens, often for addiction, which instead should be treated as the medical condition it is."  (Photo: Ilana Panich Linsman/ACLU)

The Family Separation Crisis Exposes America’s Addiction to Incarceration

The truth is that the criminal justice system we are imposing on immigrants is a reflection of the one we impose on our own — and both need fixing.

The continuing cruelty on display at our southern border has unleashed a righteous, primal scream of revulsion from Americans across the ideological spectrum. The outrage, plus a successful ACLU legal effort in San Diego, hopefully has helped turn the tide toward family reunification. However, the common refrain seems to be, “This is not who we are,” as if ripping families apart to punish or deter crime is so novel and grotesque that it’s unrecognizable as American.  

The truth is that the criminal justice system we are imposing on immigrants is a reflection of the one we impose on our own — and both need fixing. At the border, we are taking children from desperate parents based on misdemeanor border crossing — or based on no illegality at all, if the family has properly presented itself for asylum.  

But every day inside the United States, we do a version of this to tens of thousands of our own citizens. Judges and prosecutors impose cash bail that keeps parents locked up and apart from their families prior to trial, and children’s services agencies often remove kids from their parents based on unsubstantiated criminal allegations as proof of parental unfitness.

Every day, roughly 450,000 people are held in jail pretrial — meaning they are presumed innocent of any crime — and a significant portion of those are behind bars because they cannot afford bail. Worse yet, the arrest that resulted in pretrial detention is routinely used to justify a criminal temporary order of protection, or triggers the removal of children by a family court, even before the state proves the crime.

In other words, this is precisely who we are.

The parallels don’t end with bail and family separation, either.  

Even though Congress has decided that first-time border crossing is a misdemeanor, Attorney General Jeff Sessions’ zero-tolerance policy has led to a drastic reallocation of resources toward these prosecutions and away from more serious ones, such as cyber crime and public corruption. That may seem like a radical new shift, until you realize that — despite Sessions’ and other prosecutors’ professed focus on “serious violent crime” — misdemeanor dockets across the country typically are four to five times that of felonies. This wrongheaded, empirically falsifiable obsession with deterring crime by coming down hard on the most minor among them — once called “broken windows,” though more aptly called “broken families” — has bled to the border.  

The president revels in portraying immigrants as drug smugglers in the making, using the mere mention of drugs to justify the harshest criminal treatment. America has used this war-on-drugs playbook for decades to jail its black and brown citizens, often for addiction, which instead should be treated as the medical condition it is.  

Scapegoats change, but tactics stay the same. The border catastrophe is merely the latest manifestation of our reflexive, counterproductive instinct to prosecute our way out of everything, to jail our perceived enemies rather than fix our real problems.  

What we need on immigration is a holistic policy solution, including an eyes-wide-open approach to drugs that encompasses regulation, treatment and targeted legalization. We also need better tracking of and support for immigration defendants released on recognizance. These and other policy measures won’t solve the problem overnight. And humane enforcement bounded by due process unquestionably is part of the mix — as long as it never separates families without a judicial determination of unfitness, or holds anyone for longer, or in worse conditions, than the law requires. But only such a comprehensive approach gives us a fighting chance to address the problem without compromising our values.

Instead, what we get, is prosecution as panacea: a myopic focus on jailing families as a deterrent, even though nothing could deter the next mother from trying to save her daughter from the clutches of a cartel.  

Of course, our stubborn insistence on incarceration-as-policy doesn’t end with immigration. Homelessness, poverty, political dissent — you name it, we’ll jail it. Indeed, many of those who oppose the over-criminalization of American life simultaneously hope that special counsel Robert Mueller can jail us out of President Trump himself. Mueller’s work is vital, but, as many have noted, the president is more symptom than disease. The underlying cancer of know-nothingness and bigotry that hastened the rise of mass incarceration — and the attendant erosion of meaningful policy engagement — has been with us since at least the post-civil rights era, and it shows no signs of letting up. There is no jail for this.

A functioning, fair criminal justice system, staffed by public servants dedicated to the rule of law, is a vital component of our democracy. But it is just that: a component. To solve the biggest problems now — such as immigration and addiction and the integrity of our democracy itself — we need the scalpel of policy, not just the hammer of prosecution. 

And that’s why the primal scream is so encouraging. To be sure, it’s difficult to talk silver linings while kids are trapped in steel cages. But there’s an opportunity here. The bipartisan moral outrage that felled the worst elements of this border catastrophe can be bottled and turned inward. We can train it on an ever-expanding criminal justice apparatus that too often disserves its people, and that should never be the default answer to our toughest questions.


© 2021 ACLU

Somil Trivedi

Somil Trivedi is staff attorney with ACLU's Trone Center for Justice and Equality.

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