The Justice Department Has Rescinded Trump's "Zero Tolerance" Border Policy That Led To Families Being Separated

The Department of Justice said the action restores the ability of prosecutors to use their discretion to make charging decisions "based on a careful review of the particular facts and circumstances of individual immigration cases."

Behind a chain-link fence, two people sit with their backs toward the camera in a holding cell; in front of them people sleep on the ground under emergency blankets

The Justice Department on Tuesday rescinded the Trump administration's "zero tolerance" policy that led to the systematic separation of immigrant families at the border.

The memo from acting Attorney General Monty Wilkinson to federal prosecutors said the policy — which required charges to be filed in every case referred to them for illegally entering the US, without regard for individual circumstances — was inconsistent with the Justice Department's principles.

The decision to bring charges against someone should involve not only a determination that a federal offense has been committed and that the evidence will probably be enough to get a conviction, but it should also take into account other factors, including personal circumstances and criminal history, the seriousness of the offense, and the probable sentence or other consequences that would result from a conviction, Wilkinson said in the memo.

“While policies may change, our mission always remains the same: to seek justice under the law,” Wilkinson said.

In a statement, the Justice Department said the zero tolerance policy went against the long-standing principle that federal prosecutors exercise judgment and make individual assessments in criminal cases.

"Today’s action restores to prosecutors their traditional discretion to make charging decisions based on a careful review of the particular facts and circumstances of individual immigration cases,” the statement added.

The Trump administration's 2018 zero tolerance policy called for prosecuting everyone who was caught crossing the border illegally. In practice, from May 5 to June 20 that year, it resulted in the separation of more than 3,000 children from their parents, who were referred to the Justice Department for prosecution. The children, who could not go to jail with their parents, were deemed unaccompanied minors and placed in the custody of the Office of Refugee Resettlement.

Tuesday's memo is largely symbolic; most immigrant families have not been prosecuted under the policy after former president Donald Trump signed an executive order to keep the families together after they had been apprehended.

In practice, the order would affect single adult immigrants who were caught trying to cross the border, but even they won't be affected at the moment because a Trump-era coronavirus pandemic policy continues to allow US officials to immediately expel immigrants from the US in an effort to curb the spread of the virus. Immigrants caught at the border are quickly sent back to Mexico — and in some cases their home countries via plane — without so much as a court hearing.

A crying father and son hug

The Trump administration's efforts to separate families at the border to deter immigrants from crossing without authorization was quickly derided and eventually mostly halted, though some separations continued.

The government's lack of record-keeping and planning resulted in difficulties in identifying separated children in order to reunite them with their parents.

A report released on Jan. 14 from the Department of Justice's inspector general found that Jeff Sessions, then the attorney general, and other leaders at the department did not effectively coordinate with government agencies that would ultimately be involved in prosecuting the parents and caring for their children.

"We concluded that the Department’s single-minded focus on increasing immigration prosecutions came at the expense of careful and appropriate consideration of the impact of family unit prosecutions and child separations," the report stated.

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