We heard it over and over again this week from the White House. There was “no policy of separating families at the border.” And yet we also heard, over and over again, that in the past six weeks alone, a staggering 2,300 children were separated from their parents at the border. So what in the world happened?
Listening to White House representatives insisting that there was no policy of separating families was utterly bewildering to many, self included. How could they have insisted so vehemently, in the face of undeniable evidence? In more in-depth interviews and statements, they explained that in the implementation of the “zero-tolerance” policy, and in the prosecution of every single case of illegal entry, there was no way to allow children to accompany parents through the process of criminal charging and detention. For that reason, they explained, they had no choice but to separate families.
Does that satisfy you? It shouldn’t. Not only because it doesn’t pass the smell test (it stinks) but because it’s untrue. This is the problem with zero-tolerance policies. They are just that, policies. They are NOT law. There is no law requiring “zero tolerance” in prosecution. In fact, the law states the opposite, and it has for a long, long time. To be exact, the doctrine of prosecutorial discretion was born with the first Judiciary Act establishing the federal public prosecutor in 1789.
Every prosecutorial position in our government, whether state or federal, enjoys nearly unbridled freedom to determine which cases to pursue, and how to pursue them. These case-by-case determinations are almost never subject to judicial review. It has been true for hundreds of years, and we should hope that it will continue to be true for hundreds more. That’s because prosecutorial discretion is an excellent tool to preserve judicial economy, and to prevent absurd outcomes like separating babies from their parents. So in the past, when it would result in a federal agent literally wrestling a screaming child out of her mother’s arms, the government would simply decline to prosecute. And families stayed together. Imagine that.
The current White House framed this atrocity as black and white, as though their hands were tied. But that is total, unmitigated nonsense. It created an illusion that it was forced to choose between anarchy and tyranny, and that a brutal, inhumane outcome was the only option in order to spare the world from chaos. That is an age-old assertion that every dictator from Hitler to Stalin to Hussein employed to justify heinous human rights violations. It’s the same spiel that former Commander Jon Burge used to justify the institutionalized torture of over 100 (that we know of) African-American males by the Chicago Police Department for over two decades, in order to force confessions. And if we’re not careful, if we buy into it, if we don’t stand up for basic human rights by speaking, writing, organizing and ultimately voting these people out, we face the very real threat of atrocities that make this one seem tiny in comparison.
Prosecutorial discretion is real law, as opposed to this administration’s make-believe law. Please explain it to anyone who tries to tell you that separating families wasn’t White House policy, or was necessary to enforce the law at the border. Yes, it was, and no, it wasn’t.