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Cover image: Jerry Lara, San Antonio Express-News.
Recently there has been a great deal of media attention surrounding this administration’s new policy of separating children from their parents at the border. In April, The Department of Justice announced a zero-tolerance policy requiring that every single person who crosses the border illegally be criminally prosecuted (in addition to the immigration proceedings that were already occurring). They have been implementing this policy unofficially since sometime last Spring.
The reason this policy shift matters, and the reason it is being called a policy that separates parents and children, is due to the mandatory requirement of prosecution. Once someone is criminally prosecuted, they must be held in prison. Children cannot legally be housed in adult detention facilities, so this in turn requires the separation of parents and children and the placing of those children into shelters. Previously families could be detained together while awaiting immigration proceedings- be they asylum claims or deportation hearings, while adding on a criminal prosecution was reserved for the likes of traffickers and dangerous criminals.
In April, over 700 children had been separated from their parents, more than 100 of which were under four years old. In only a two week period in May, 658 children had been separated from 638 adults. Some parents have been deported without being reunited with their children, and without knowing where they are. Children as young as 12 months old have been separated from their mothers. These families are fleeing the violence and corruption of countries like Nicaragua, where the LDS Church recently transferred its missionaries from because the risk to their safety was too great.
Pediatricians point out what our instincts already tell us, that “Studies overwhelmingly demonstrate the irreparable harm caused by breaking up families”, and that trauma like this “can disrupt a child’s brain architecture and affect his or her short- and long-term health”. The Parental Rights Foundation recently expressed alarm at the damaging effects of foster care on children, and that “the negative effects are increased the younger a child enters the system”.
As members of the LDS Church, we know the importance of entering the public square to defend and protect the family, but we also believe in honoring and sustaining the law. The natural inclination is to point out that the parents crossing the border illegally are the ones making this choice, making them accountable for the consequences to themselves and their children.
While they are certainly responsible for their choices (and we may never fully know all of the factors driving them to those choices), we must carefully consider the responsibility of our own government to use its absolute power over the lives of others judiciously, with proper restraint, and with utmost regard to the family. Contrary to common belief, ending this policy does not require that the law be changed or ignored, the law itself calls for discretion in whether or not to bring a prosecution so that penalties can be properly aligned with what is both just and meaningful. This policy has removed that ability for agents of the law to use that discretion.
Utah’s Senator Mike Lee, in speaking on criminal justice reform, points out that “Just as the government has the power to punish those who break the law, it has a corresponding duty to use its coercive powers responsibly – to sentence offenders on an individualized basis and no longer than necessary.” Our federal code of prosecution specifies that “the personal circumstances of an accused may be relevant in determining whether to prosecute or to take other action…[and] may suggest that prosecution is not the most appropriate response to his/her offense”. This policy has caused us to lose the ability to treat individual cases, individually.
When people do cross our border illegally, the penalties should fit both the crime and the criminal, and enact appropriate justice. Family separation should be an absolute last resort with no other humane alternatives. Civil penalties such as fines and probations can be used in place of prison time. Family detention centers, although also not ideal, can be used while asylum or deportation proceedings are being processed, and ankle tracking bracelets can be used for lengthier asylum claims. Our borders need to be more secure so that those who have valid asylum claims are forced to make those at a port of entry, and those claiming asylum must be confident that our government will honor its own laws in accepting those cases. There are many ways to find fair and just reforms to our procedures that still honor both the demands of justice and the sanctity of families and children.
The Family: A Proclamation to the World calls on responsible citizens to “promote those measures designed to maintain and strengthen the family as the fundamental unit of society”. I pray that we may each seek to know if this is a measure on which we should raise our voice in defense of this sacred institution.