When I am not at work advocating for criminal justice reform, I spend the vast majority of my time with my son.  He is about a year and a half.  For the past week or so, as I spend time with him, I think about the children who are around his age who are in the horrific position of having been separated from their parents as punishment for crossing the border.  Last week when I buckled him into his car seat, I noticed that it appeared to be the same model as those I had seen in a photograph of a bus designed for ICE agents to transport young children after ripping them from families.  As I put my toddler to bed last night, I felt distracted by the thought of what bedtime might look like for a toddler who has been placed into the custody of people who ignore their cries as they are separated. “Again?”, my son asks while pressing his Llama Llama book into my hands.


What justification can there possibly be for taking immigrant children as young as 53 weeks old from their parents and shipping them away, even to other states in some cases?  The answer reveals an age-old way that American society has used to dehumanize people, especially people of color, throughout history.  The government has justified various atrocities against people by labeling them criminals.  According to the new “zero tolerance” approach recently unveiled by Attorney Jeff Sessions and Homeland Security Secretary Kirstjen Nielsen, anyone who crosses into the United States illegally will face criminal prosecution.  This means that parents who arrive with children stay in federal jails while their children are sent to HHS shelters.  Last month, Senator Kamala Harris questioned Secretary Nielsen about the administration’s separation policy.  At a Senate Homeland Security and Governmental Affairs Committee hearing, Secretary Nielsen dodged questions about why she was separating families.  When directly asked, she responded that her decision “has been that anyone who breaks the law will be prosecuted.”  She continued with thinly veiled irritation, “If you are a parent or you are a single person or you happen to have a family, if you cross the between the ports of entry, we will refer you for prosecution.  You have broken US law.”  In short, she justifies snatching children from their parents by criminalizing them.


In “The New Jim Crow”, Michelle Alexander comments on the indignities suffered by those we label criminals, saying “Criminals, it turns out, are the one social group in America we have permission to hate.  In ‘colorblind’ American, criminals are the new whipping boys.  They are entitled to no respect and little moral concern.  Like the ‘coloreds’ in the years following emancipation, criminals today are deemed a characterless and purposeless people, deserving of our collective scorn and contempt.  When we say someone was ‘treated like a criminal’, what we mean to say is that he or she was treated as less than human, like a shameful creature.”


Of course, family separation is a consequence of incarceration resulting from many crimes.  In theory, people are incarcerated and separated from their families as a public safety measure or where those people present a flight risk.  In practice, criminal justice advocates know well that this is not the case.  For instance, people are jailed for no reason other than that they are too poor to pay bail.  Here, however, we see family separation being used in and of itself as punishment.  In a recent interview, White House Chief of Staff John F. Kelly told NPR that family separation could be used as a “tough deterrent” for immigrants who cross the border illegally.  Distracting from the question of why the inhumane practice of family separation is necessary, he stated, “[b]ut the big point is that they elected to come illegally into the United States”, and noted that this was a “technique” that “no one hopes will be used extensively or for very long.”  In other words, they deserve this punishment.  This rhetoric is incredibly dangerous, as it begs the question of what denial of humanity we are willing to accept for people, especially those who pose no danger to us, simply because they break a law.


The government is using this “technique” to criminalize and punish families who are incredibly vulnerable.  They have already been displaced from their homes, and their children have one thing left in their lives to anchor them to familiarity: their parents.  In an interview on MSNBC, Lee Gelernt, Director of the ACLU Immigrant’s Rights Project told Chris Hayes the story of one mother whose child was taken from her.  She was incarcerated for a few days after her child was taken from her.  For seven months didn’t know where her child was.  She was in Texas and all she was told was that her child was in Chicago.  She told her attorneys, “I don’t know whether Chicago is a man, a place, a facility…”.  Once separated from their parents, the extreme vulnerability of unaccompanied children makes them prime targets for abuse.  Based on 30,000 pages of documents obtained through a public records request, the ACLU has already alleged physical, mental, and sexual abuse at the hands of Customs and Border Protection agents.


The way that immigrants are prosecuted for crossing the border makes a mockery of justice.  They are often tried en masse, in proceedings that last a few minutes, without meaningful legal representation.  Recordings of a federal magistrate’s court in Brownsville Texas capture some of one such trial of 40 defendants, with some of them asking questions about where their children are and whether they will be reunited with them.  Even those who present themselves willingly at the border are processed in this way.  Previously, it was rare to charge asylum seekers with crimes.  If they were, they were put into detention with their children while they pursued their claims.  Alternatively, they were released with supervision with their children.  Now they are churned out of a broken criminal “justice” system with little regard for their rights or their humanity.


As we talk about this crisis unfolding at the border, we cannot stop at asking whether immigrants should be treated like criminals.  We must pay attention to what this question implies.  It implies that at some level, we accept our administration’s dangerous contention that just breaking a law somehow rightfully permits the government to separate immigrant families as we did to enslaved people.  We must ask ourselves how simply labeling a person a criminal can justify stripping them of their humanity.  We must challenge the notion that, as Michelle Alexander describes it, even people labeled criminals should be “entitled to no respect and little moral concern.”


As I imagine my son growing older, I fear having to explain this shameful chapter in our history for so many reasons.  I fear having to explain why adults in the world have so willfully disregarded the basic human dignity of others.  I fear that once he is old enough to make painful historical connections between his history as a young man of color and current systemic oppression in its many forms, it will threaten his sense of power and security in the world.  And I know that still, I am fortunate that I can save these conversations for later and redirect my attention to the precious time I spend with him now.  I am fortunate that I can ponder these fears as he sits in my lap, asking me to read to him one more time.  As others are denied this luxury, we must think critically about how we allow others to justify it.

B. Tessa Hale, JD

Associate Director, Carolina Justice Policy Center