Did you know we’re keeping children in cages?
I actually wrote a different blog yesterday, about how I fear that Trump’s success – or at least the positive things that are happening around him, even if they’re not because of him, like the unemployment rate going down – will encourage a cultural shift towards bullying. But I can’t post that one until I write and post this. Because this is the first thing that needs to be discussed. In fact, we should start every conversation with this until the answer can genuinely be, “No, we’re not; they stopped that.” Walk into Starbucks, and the barrista should say, “Hi, there are children in cages, but can I take your order?” And you should say, “Unnecessary family separation as a deterrent policy is a crime against humanity, and I’ll have a latte.”
So. Because of the attack on the media from Trump and the right (And because the corporate media has been sliding down into the muck for a generation at least), let’s establish facts.
First fact: when you type “children” into the Google search box, the first option is “Children in cages.” This is America. Childish Gambino released that video a month early.
Second fact: is this actually happening? Yes.
Federal officials said Tuesday that since May, they have separated 2,342 children from their families, rendering them unaccompanied minors in the government’s care.
Third fact: are these children being kept in cages? Here’s a good explanation of the semantic argument. If I may, the answer is: Yes. They are detention facilities, they do provide for the basic needs of the children, with the exception of the most obvious one: their parents aren’t there. But the essential point is: the children are held in enclosures made of chain-link fencing on concrete floors, and they are not allowed out of those enclosures. They are not able to see or communicate with their parents unless they can wend their way through an enormous bureaucracy.
Fourth fact: The children separated from their parents include infants and toddlers. Being kept in “Tender age shelters.”
Fifth fact: this is not, despite the administration’s stance, required by law, nor is it the fault of the Democrats. Unless we stop believing in free will. The administration has claimed – I heard White House spokesman Hogan Gidley reference all three of these elements during an interview with NPR – that the separation of families and the detention of children is the result of three things: the Flores Agreement from 1997, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, and the 2016 decision by the 9th Circuit Court which included accompanied minors in the previous laws regarding unaccompanied minors.
If I may quote Inigo Montoya: “Lemme ‘splain. No, is too much: lemme sum up.”
The Flores Settlement agreement (Which settled a class-action lawsuit actually going back to the Reagan Administration) says that aliens in the custody of INS (now ICE) who are unaccompanied minors must be held in the “least restrictive setting” possible. Specifically, it says,
“The INS shall place each detained minor in the least restrictive setting appropriate to the minor’s age and special needs, provided that such setting is consistent with its interests to ensure the minor’s timely appearance before the INS and the immigration courts and to protect the minor’s well-being and that of others.”
This means, to the Trump administration, that children can’t be jailed, and if their parents have to be, then the children must be separated from the jailed parents. I’ve seen various sources say that the settlement requires unaccompanied minors be released within 20 days, but I can’t find that passage in the agreement. If you’d like to try, look here.
The 2008 law applies because it says:
Except in the case of exceptional circumstances, any department or agency of the Federal Government that has an unaccompanied alien child in custody shall transfer the custody of such child to the Secretary of Health and Human Services not later than 72 hours after determining that such child is an unaccompanied alien child.
This means that, once the children are separated from their parents (and therefore, according to the Trump administration, they are unaccompanied minors), they cannot be held by either INS, if the parents are being held pending an immigration hearing, nor by the U.S. Marshals, who hold the parents if they are being accused of a federal crime – which, under this administration, they are; that’s the “Zero Tolerance” policy that Jeff Sessions announced in April. Sessions’s memo to the state attorneys general is here, and the law that he cites, the law against unlawful entry, is here.
Please note that the maximum penalty for a first offense is six months in jail, which makes this crime a misdemeanor. Most adult immigrants, once they reach a hearing, are released with time served.
Finally, the 2016 decision from the 9th Circuit Court of Appeals broadened the Flores Settlement to include accompanied minors, meaning that they, too, had to be held in the least restrictive setting available, and, as with the 1997 settlement, the government had to prioritize release of children in custody to family members over any other solution; the decision says that this was also the case with minors detained with their parents, though it does also make clear that this does not require the government to release the parents in order to provide a custodial parent for the children. It does require, as the Flores Settlement did, that parents be released with their children if they are not a legal or flight risk.
So what does all this mean? It means that the Trump administration is arguing that they must uphold the law, and they must do something drastic to reduce the crisis of immigration across the southern U.S. border. They claim that those who cross the border have committed a crime, and therefore they must be prosecuted. If those people brought their minor children with them in the commission of this crime, those children have to be separated from their parents as they cannot be held in a prison with their parents, but must be remanded to the custody of Health and Human Services, as per the Flores Settlement, the 2016 decision by the 9th Circuit, and the 2008 Wilberforce Reauthorization Act. HHS then places those kids into tents and warehouses, wherever they have facilities that meet the standard of the Flores Settlement (Which says that they have to have the basic needs, and also opportunities for exercise, entertainment, education, and contact with their parents. Well.). This, they say, is all required by law, and at various times, various members of the administration from President Trump on down have all claimed that this is the fault of the Democrats: first they claimed that Democrats passed the laws (They didn’t), then they claimed that this has been going on since either the Obama administration or the Clinton administration (Neither is true; both administrations detained unaccompanied minors in similar settings, but neither intentionally separated accompanied minors from their parents and then treated them as unaccompanied minors. Generally they released families. It should also be noted that there were not nearly as many families trying to immigrate with their minor children in the past. Source), and then they claimed that the Democrats could end this any time by passing legislation to change the laws or the policies – their preference, apparently, is for the alteration of the Flores Settlement, so that they can detain children, accompanied and unaccompanied, for as long as necessary. This is also untrue in that the Republicans control all branches of government; it is true that they need Democrat votes to pass a law through the Senate, but the first obstruction to any legislation is and has been the President, who just will not say what he is willing to support; the two bills currently being debated in the House, one more conservative without a path to citizenship for the DACA recipients, one more moderate (but still Republican/conservative) with a path to citizenship (along with limiting legal immigration and funding the Trump border wall) have BOTH got his support, whatever the hell that means.
But please, in this era of lies and exaggeration and political spin, let’s just get down to brass tacks. This policy of family separation is. Fucking. WRONG. It is vile and appalling and inhumane and cruel and everything that this country is not supposed to be. Regardless of whether the parents of those children have committed crimes (and in the case of asylum seekers, some of whom have also reportedly been separated from their children because the asylum seekers stay in the custody of ICE while awaiting their hearings and the children have to be remanded to HHS according to Wilberforce, literally no crime has been committed, as seeking asylum is legal.), the children have not, and the children have rights. They have the right to be with their parents, and they have the right to not be jailed. That doesn’t imply that you put them into chainlink-partition-spaces in tents in Texas; it implies that you find a way to ensure that the parents can be released from custody without violating the laws you are trying to enforce.
Now let’s talk about that. Because there really is an obvious solution here, even though it is one that Trump finds untenable because it makes his base froth at the mouth: he calls it “Catch and Release.” This is the policy that previous administrations have used with most families (Not, as Obama’s Department of Homeland Security Secretary Jeh Johnson said, in cases where there might be some doubt as to the child’s familial relationship to the adult; thereby rebutting current DHS Secretary Kirstjen Nielsen’s argument that children must be separated in all cases because the families have no documentary evidence of familial relationship and therefore ICE has to assume the adults are human traffickers) and with many other immigrants seeking asylum or going through legal processes. You set up a court date, and then you release the people on their own recognizance, with the understanding that they will show up for their court date.
Here’s the thing. This is how our system works. Our Constitution requires the provision of bail that is not excessive, and that everyone receive a fair and speedy trial, and that anyone accused of any crime is innocent until proven guilty. Unlawful entry is a misdemeanor. The maximum fine is $250. Reasonable bail for that crime would be, what, maybe $100? Public intoxication, also a misdemeanor punishable by a maximum of 6 months (Varies by state – I’m using Indiana because it came up first on Google) and a fine of a whopping $1000, has a bail around $200-$500, according to the Bail Bonds Network. So I would think that bail for the parents should be something that most of them should have access to, especially if they have friends or family in the U.S. Once bail has been granted, then the question is whether or not the accused will show up for court; President Trump, of course, argues that they won’t, that the illegal immigrants are intending exactly this: showing up with their kids so that if they get caught, they will be released and then they will vanish into the Heart of Darkness inside the U.S. and never be seen again until they get arrested for rape or murder.
But here’s the thing. Immigrants show up. They don’t miss their court dates.
Moreover, studies show that asylum seekers—like many of the thousands of Central American families fleeing violence and arriving to the U.S.—are likely to appear for proceedings, because they have such a strong incentive to avoid returning to persecution. Indeed, as United Nations High Commissioner for Refugees (UNHCR) researchers found in 2013, asylum seekers have a natural “inclination towards law-abidingness,” and view making a refugee claim as “a manifestation of faith in legal process.” U.S. research bears this out. A Vera Institute study, from 1997 to 2000, of asylum seekers in expedited removal proceedings found to have credible fear, found that 93 percent with intensive supervision complied with all court proceedings; 84 percent complied with minimal supervision; and 78 percent complied even if simply released without supervision. These compliance rates were so high that Vera concluded that “[a]sylum seekers do not need to be detained to appear…. They also do not seem to need intensive supervision.”
And if that rate doesn’t appeal, there are certainly ways to improve it. Immigrants with legal representation, for instance, attend hearings at an even higher rate. Solutions like allowing immigrants to check in via phone call or smartphone location apps create higher response rates. Even ankle bracelets (like the two that Paul Manafort has to wear ) would allow a tough-on-crime sort of stance, while allowing families to stay together, and reducing the burden on government resources to house all of these people.
In other words: there are alternatives. Even if you accept the claim that the administration is enforcing immigration law, it has to be pointed out that there are also 11 million illegal immigrants currently residing in the U.S., who are not currently being rounded up, separated from their children, and housed in federal lockup. So apparently the Trump administration is actually choosing and prioritizing which laws it enforces to what extent. Which is, indeed, the whole goddamn point of an executive branch. And this executive is choosing to prosecute people accused of first time illegal entry – a misdemeanor with a lesser penalty than some states impose for jaywalking – and therefore choosing, as a matter of intentional, proactive, object-oriented policy, to separate families and put children in cages. This is our government, and our country. It is us, unless we do something about it.
It is fucking wrong. It has to stop. It has to be the first thing we say, and the first thing we act on, in our current opposition to the abuses of our government. And I don’t care if you are a progressive liberal or a libertarian anarchist: this is what you should be talking about. This is what you should be fighting. Call your representative, call the White House, write letters, march, protest, donate, do anything and everything you can. Fight this. Fight it now.