By Somil Trivedi
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.
Somil Trivedi is an attorney with the American Civil Liberties Union’s Trone Center for Justice and Equality.
Kate Steinle was separated from her parents for eternity.
So were all these people separated from their families by illegal immigrants. http://www.ojjpac.org/memorial.asp
What’s your point? This is a nonsensical, right wing, xenophobic talking point. Pick any demographic group and you will be able to cite examples of violent crimes committed by that group. Evidence tends to show that undocumented immigrants are less likely to commit crimes than U.S. citizens.
http://www.politifact.com/california/statements/2017/aug/03/antonio-villaraigosa/mostly-true-undocumented-immigrants-less-likely-co/
So, if all undocumented immigrants magically disappeared, the overall crime rate would actually show an increase.
There are two problems Jeff. One is that Zarate was acquitted of the murder. The second is that one thing has nothing to do with the other.
Sure, OJ was acquitted too. San Francisco is a sanctuary city. Apparently per the SF liberal mindset, Kate killed herself. Or maybe the jury thought is was an accident… one that would not have occurred if that illegal immigrant was not here. You just strengthened my point.
It is all related. Every illegal immigrant that arrives here in the catch and release idiocy that liberal and (cheap foreign labor) establishment politicians have enabled, that ends up harming an American is harm that should not have occurred and should be prevented. Why are liberals so callus and uncaring about the harm done to Americans by illegal immigrants?
I wonder if anyone finds it ironic that one of the biggest donor groups to “left of center” politicians that claim they don’t like “incarceration” are the people that get paid to “incarcerate” people
https://www.sacbee.com/news/politics-government/the-state-worker/article211594789.html
Prison guards don’t “incarcerate” people. They are public employees paid to ensure the security of the public and people who have been incarcerated by the criminal justice system.
If the prison guards don’t “incarcerate” people who exactly are the people jailing, locking up, keeping under lock and key, detaining, hold, holding prisoner, or holding captive all of the people “incarcerated” in CA?
I’m pretty far to the left on prison reform and I think that at least 90% of non violent offenders and 90% of drug offenders should be released and I also support the (almost) total elimination of the current bail system.
It is sad that just like almost all (so called) left of center politicians do little to help the poor and uneducated in the state as they pass more and more regressive taxes and fees they also keep passing more and more laws that get an increasing number of poor and uneducated caught in the “criminal justice web” and locked up to provide jobs and overtime for their largest donor.
The guys that funded “three strikes” and almost every Democrat that runs for statewide office keeps pouring money in to politics to keep the prisons full:
https://www.sacbee.com/news/politics-government/the-state-worker/article58052373.html
Ken
Your presentation is at best one sided. You have completely omitted the current and increasing phenomena of private prisons the vast majority of whose donations go to right wing politicians.
The problem in my view is not one’s political ideology but rather the huge amounts of money to be made from incarceration including that of individuals who have either been found guilty of nothing at all but are held in lieu of bail and those who are guilty a crime, but are of no danger to the community.
What I am talking about is how sad it is that all most (but not all) people in the state seem to care about is if the person they vote for has a D after their name and don’t seem to care if anyone puts kids in cages or locks up minor criminals unless a Republican is in charge.
P.S. To Tia (or anyone else) I’m wondering where the “private prisons” in the state are located (a while back I read that the CA prison guard union and the state’s Democratic “super majority” has blocked the construction of any) …
I wonder if Ken recognizes that there is a divide on the left between those who support criminal justice reform and those who don’t. Look at the recent DA’s race. Yes you had people like Lucas Frerichs, Don Saylor, Will Arnold supporting Johansson. But you also had people like Christopher Cabaldon, Oscar Villegas and Jim Provenza supporting Jeff Reisig. “Left of center” is a pretty broad category and by overgeneralizing, you miss the difference between the progressive left and the center left.
In the last decade every candidate that won a statewide election has been “left of center” yet the number of people incarcerated” keeps growing (with more people behind bars than every state except TX). The prison guards don’t care if a few “progressives” get elected to the Davis or Berkeley city council but they will never let enough of them get elected to a place where they can actually do real “criminal justice reform” (the people running the courts are as bad or even worse than the prison guards)…
That’s not exactly true. Incarceration rate is down. But you completely ignored my point about the distinction in “left of center” from left politicians. For example, the AG you might consider to be left, but he has been very poor on issues like cracking down on prosecutorial misconduct and prosecuting police shootings. So with a blanket phrase – “left of center” there is little meaning.
“Kate Steinle was separated from her parents for eternity.”
As was Heather Hyer. The point of your anecdote is not related to the subject of our tendency to over incarcerate as opposed to using it as the last resort to remove those who are actually dangerous in our community.
Illegal immigrants add unnecessary and preventable risk and occurrence of harm to existing Americans.
Instead of importing your charity cases, why not travel to those countries to help improve their circumstances?
Illegal immigration is just another tax on the American people that liberals cannot seem to get enough of… until they run out of other people’s money and lives.
I have no idea what this means, other than not separating families.
If large numbers of people are crossing the border illegally (many of whom may ultimately not qualify for asylum), what should be done with them? Is they’re held and/or denied entry, are some going to use that as an example of our “incarceration-prone” society?
What they are saying is not necessarily to not enforce immigration laws…
What they are saying is:
1. All enforcement requires them to follow due process of law and determined by a judge
2. That the enforcement must be humane – I’ve seen enough resultant ICE raids to know how these guys conduct themselves
3. That there cannot be a separation of families
Not only do I think those provisions are reasonable, but they aren’t particularly radical
Maybe it would be better if we created a system where people could apply for visas and/or asylum from their home countries. That way we could manage their arrival rather than thousands of people just showing up and saying “here I am, take care of me”.
That would make a lot of sense.
I have longed believed if we had a sensible, streamlined immigration process, we would remove the incentive for people to come without documentation.
“sensible, streamlined immigration process” Not sure why you believe that. The people who want to come here will continue to come if they are not given a visa and if given a visa will overstay after it expires. Other than “open borders” there is no situation that will satisfy people who want to move here. If we tell people that they can get in if they show up at the border and say they were beat by their spouse or attacked by gangs then we will get lots of people who will show up at the border and say they were beat by their spouse or attacked by gangs.
We design the game and they play it.
My wife is from another country and I have regular discussions with her friends and relatives about visa strategy. Whether to claim religious persecution, political harassment or something else is discussed and truth has never been a consideration.
I was living in LA and one of my wife’s friends called me about a friend of his. He and his son were living in the LA area. They both had “B” Visas and current I94s. This guy was a PhD and had very good english skills. So he went down to register his son for school bringing their visas, copies of their rental agreement and utility bills in his name. He was rejected as the school district said they did not accept people on a “B” visa so he called his friend and asked what to do. I called the guy and I knew what to to do. I told to wear his oldest clothes and meet me at the Starbucks in the morning with his son. I told him and his son to pretend they did not speak english and don’t say anything and don’t present anything.
I took them to the adjacent district and told the registration office that I worked in the district and these two were sleeping in their car in the parking lot every night. I had spoken to them and told the father he needed to register his son for school but he had not since he had overstayed his visa and their passports were stolen.
The registration desk very nice to them and registered them on the spot. The guy thought it was the weirdest thing ever, when he came with all the paperwork and showed he respected our rules the school was mean to him and kicked him out. When he said he was illegal and homeless they were very nice and accommodating.
We design the game and they play it.
That seems to sum it up, quite well. With a healthy dose of reality, rather than ideology.
I have another perspective. We the people did not design the game, the ruling class designed the game. We the people are redesigning the game. And the ruling class is throwing a fit about it.
Jeff: It seems like there’s at least two “ruling classes” involved in establishing the rules – one at the national level, and one at the state/local level. (Resulting in a mixed message, to say the least.)
Much like policies regarding marijuana, environmental protection, etc.
I’d also argue that (even) within the state/local level, there isn’t a clear policy or goal regarding immigration. Is the outcry really limited to separation of families, or does it go deeper than that? (I’d suggest it’s the latter.)
The ruling class is represented by CA state government today.
We the People is represented by the national government today.
Who are you even talking about? Jerry Brown? He won with 60% of the popular vote. “CA state government” was elected by “the people” of California. Who is “the national government?” The president? The current occupant of the White House didn’t even win the popular vote. The public certainly doesn’t support the current separation policy. Maybe a majority of Republicans do.
This comment of yours makes literally no sense.
The vast majority of whom oppose the administration’s policies on immigration, health care, gun control, etc. Perhaps, that should read, “We, the Trump Base …”.
Don – the “Ruling Class” is representing the political establishment. Jerry Brown is all establishment. He has his head so far up the public sector union and DNC-media machine that he needs some machine oil before he can move. The guy in the White House is the outsider representing the voting republic. He has zero connections to the political establishment. He is not of the ruling class. He needs no oil. But he is like sandpaper to the workings of the old machine.
Great Netflix original series named The Crown… about the young Queen Elizabeth. Noting all the handlers and protocol… the fact that she was really powerless as a policy-maker… except for doing and saying only what THE establishment expected.
Big business, unions and those with their hand deep in the government pay-for-play game are all enabled by and supported by the ruling class. The ruling class makes their primary living keeping these groups happy, and there is a quid-pro-quo relationship to keep it the status quo.
Eric – you are apparently stuck following the same polls that said Hillary would win in a landslide. It is only the left that wants more immigrants to help secure more political power.
This covers things pretty well and refutes your immigration claim. https://www.npr.org/2018/01/23/580037717/what-the-latest-immigration-polls-do-and-dont-say
Good graphic to show that conservatives have remained consistent while Democrats have gone full open borders…
http://www.people-press.org/2018/06/28/shifting-public-views-on-legal-immigration-into-the-u-s/graphic13/
As to gun control and health care, we will just leave that for another day.
Didn’t actually address my questions.
Seems to me that when there’s a big discrepancy between conditions in the U.S., vs. other countries (with a border that can by physically crossed) then there’s always going to be a constant flow of those trying to cross. And, that’s going to involve decisions regarding what to do about it (which really haven’t been adequately addressed).
I wasn’t attempting to answer your questions. I did however explain what the sentence meant.