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Hidden Horrors of “Zero Tolerance” — Mass Trials and Children Taken From Their
Parents
Debbie Nathan
May 29 2018, 12:26 p.m.
Photo: Federal Courthouse, Pecos, Tex.
Federal Magistrate Judge Ronald G. Morgan is in his 60s, with a bright-pink
face and a crisp, friendly manner — though lately he has been making
disconcerting little mistakes in court. He has spent eight years on the bench
in Brownsville, a small Texas city on the U.S.-Mexico border. Morgan knows how
to run a court smoothly, but during a morning session I attended in early May,
he announced that he’d just dealt with 35 defendants — all at one time — when
the actual number was 40. And after the proceedings, he forgot to pronounce
their guilt. Marshals had already led them out, so Morgan sheepishly had to
call the 40 defendants back to the courtroom to correct his error. These days,
he seems distracted and troubled.
That is understandable. In late April, magistrates’ courts in Brownsville
suddenly turned into “zero tolerance” factories for criminalizing migrants,
many of whom have no prior criminal record. Many are from murderously violent
countries in Central America and have fled to the U.S. seeking asylum, and they
often arrive with children in tow. It used to be rare to charge migrants
seeking asylum with crimes. If they did so, they were put into detention with
their children while they pursued their claims. Or they were released with
supervision — along with their children. The best interests of the children
were considered paramount, and those interests including keeping families
together.
The War on Immigrants
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The War on Immigrants
But now, in federal courts like Morgan’s, not only are parents finding
themselves charged with the crime of “illegal entry,” but the government is
breaking up families, sending children to detention centers, often hundreds of
miles from their mothers and fathers, or to distant foster homes.
These family separations had been occurring intermittently since last fall, and
mass trials have been occurring off and on since “Operation Streamline” was
first introduced in 2005. But on May 7, Attorney General Jeff Sessions
announced that the U.S. government will prosecute “100 percent of illegal
southwest border crossings.” He added that people who were “smuggling a child”
will be prosecuted “and that child will be separated from you as required by
law.” In practice, this means that even parents fleeing violence to protect
their young children will be deemed smugglers — that is, criminals. Sessions’s
announcement came just two weeks after an official with the Department of
Health and Human Services told Congress that the agency had lost track of 1,475
unaccompanied migrant children it had placed with sponsors.
The anguish that parents communicated in Morgan’s courtroom, and the spectacle
of dozens of migrants being convicted and sentenced en masse, in proceedings
lasting just a few minutes and with only the most perfunctory legal
representation, has shocked courthouse employees. And not just in Brownsville.
Taking photographs of federal court proceedings is strictly forbidden. But in
the federal courthouse in Pecos, Texas, someone apparently felt so bad about
the new policies that they secretly shot a photo — obtained by The Intercept
and published at the top of this page — of dozens of immigrants clogging a
court in orange jumpsuits.
But most Americans do not attend these courts. They live far from the border,
and Sessions’s new “zero tolerance” plan seems distant and theoretical. On the
border itself, however, the new policy feels close and horribly real.
Sessions’s policy of deliberately breaking up families is a new low in U.S.
border policy. Today “zero tolerance” is playing out from Texas to California.
In Brownsville, it’s driving Judge Morgan to distraction.
Audio from a mass trial of immigrants presided over by Federal Magistrate Judge
Ronald G. Morgan, in Brownsville, Tex., on May 10, 2018.
Until recently, the procedure that brought a handful of defendants a day to the
Brownsville courtroom for criminal prosecution was straightforward. First,
Border Patrol agents arrested people after they arrived in the U.S. “by
swimming, wading or floating across the banks of the Rio Grande River,” as the
government’s boilerplate complaint puts it. Subsequent to their arrests, the
detainees were processed at a Border Patrol station that everyone complains
feels as cold as an icebox: in Spanish, an hielera.
If a detainee expressed fear to the Border Patrol agents about returning to
their country, criminal charges were rarely brought. When immigrants were
bussed to the federal courthouse in Brownsville, attorneys from the Federal
Public Defenders office also asked the migrants if they feared returning to
their country. If anyone expressed credible fear, the public defenders asked
the federal prosecutors to drop the criminal illegal entry charges and refer
the person directly to the asylum system.
Meanwhile, immigrants who weren’t making asylum claims went through the
criminal process. Before the “zero tolerance” policy began, Morgan and another
federal magistrate, Ignacio Torteya III, usually took turns seeing between
three and eight of these people a day. Most pleaded guilty. Theoretically, the
judge could sentence first-time illegal entrants to six months in prison. But
they almost always got time served and were then typically deported. The asylum
applicants stayed in the U.S. — with their kids — while their cases proceeded.
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On April 30, Torteya was on duty and was informed that he had 41 “illegal
entry” cases — about six times more than usual. Accompanying each of these
immigrants’ criminal cases was paperwork from the U.S. Attorney’s office with a
label at the top reading “Attorney General Zero Tolerance Initiative.”
Attorneys and staff from the Federal Public Defenders were ordered to represent
this startling mass of defendants who would go into court at 10 a.m. The public
defenders had less than two hours to speak with all 41 people. That worked out
to just a few minutes per defendant.
Soon, this scenario was being repeated daily in Morgan’s court, with the added
feature of people telling the judge that they were afraid to go back to their
countries — and that the U.S. government was taking away their children.
Each day was the same. The courtroom was filled with exhausted immigrants, with
hands cuffed and shackled to their waists, their legs in chains — dozens of
defendants stumbling, shuffling, clanking, and clanging in tandem. “Raise your
right hand,” Morgan commanded as a translator spoke Spanish into their
headphones. The shackled defendants struggled to comply.
The judge’s job is to determine if defendants understand the criminal charges
against them and whether they feel they have had adequate legal representation.
If they say they want to plead guilty, he asks whether they are doing so of
their own free will. After that, they can make a statement — an “allocution” —
and then the judge sentences them.
Morgan has a long, scripted list of explanations and questions for the
defendants. On May 7, there were 40 defendants facing charges of illegal entry.
Morgan had no time to read all these items to each individual and deal with
their responses. So the judge asked many of his questions en masse. This had
the astounding effect of eliciting, from otherwise mute and downcast
defendants, thundering group responses.
“Are each of you satisfied with the help of the lawyer?” the judge asked the
huddled people.
“Sí!” they roared in unison.
“Has anyone offered you anything or threatened you?”
Another roar: “No!”
Morgan often tried to individualize the proceedings. “Mr. Zamora, do you
understand the charge against you, the maximum punishment, and your individual
rights? … Did your lawyer explain all those things to you so that you can
understand?” … “Ms. Pineda, do you understand the charge against you, the
maximum punishment, and your individual rights? … Did your lawyer explain all
of these things to you so that you can understand?” And so on, through the
clanking of the chains, over three dozen times. In each case, the defendant
answered, “Sí,” and the translator echoed, “Yes.”
Sometimes the judge sighed. When it came time to hear the defendants give up
their rights to trial, he got a second wind, ordering each one to stand,
pronouncing their name, and asking, for example, “Ms. Guerrera, how do you
plead? Guilty or not guilty?”
“Culpable.” Guilty.
“OK, you may take a seat, ma’am. Mr. Escobedo, how do you plead, sir?”
“Culpable.” Guilty.
Forty times.
The judge tried to vary his spiel. But as his “how do you pleads” droned on, he
ran out of variations as he instructed people to take their seat.
After the guilty pleas, Morgan lectured the immigrants. “The world is a
different place,” he explained on his first day of mass proceedings. “This
country has become a different place. I’m not going to say right or wrong —
it’s just what the law says.”
On the second day, he was more laconic and direct, explaining that the
government had made “a decision that there is to be zero tolerance.”
It was unclear if the silent defendants had a clue about what the judge was
referring to.
Each day, the proceedings continued with the judge offering defendants the
chance to take the microphone and address him before they were sentenced. As
the week wore on, several did.
One man told Morgan that he wanted to apologize for entering the United States
illegally. But he’d done so, he explained, because “I have been kidnapped
twice. I have a vegetable business. In my country, I can’t work. That’s all.”
“I can’t do anything about it,” Morgan replied. “Coming in illegally is just
going to make a bad situation worse.
A very small, very young woman with chiseled features and disheveled hair
spoke. She had been apprehended two days earlier after rafting across the Rio
Grande near a county park with big trees and picnic tables that abuts the
international line. She wept as she told Morgan, “I’d like to apologize, but
the circumstances in my country made me do it.” She said she’d been almost
raped and killed there, and she had come to the U.S. for protection and to see
if she could help her sisters escape the danger.
“You are going to be sent to one of the immigration camps,” Morgan said. “You
can try and request asylum.”
By May 10, Morgan was starting to get rattled by the increasingly disturbing
content of the allocutions. By then, the government had begun systematically
separating mothers and fathers from their children, including children who are
preschoolers. A week later, the government announced plans to house the
children on military bases.
One woman who spoke about her children in open court was from Honduras. “Is my
little girl going to go with me when I get deported?” she asked Morgan.
“Your Honor,” interjected Jeff Wilde, director of the Federal Public Defender’s
office in Brownsville, “both she and the man next to her have their children
with them. They had a credible fear claim [for asylum]. … Their children have
been separated from them, and I’ve been unable to figure out where their
children are at this point.”
A young father then said he’d been separated from his 6-year-old and was very
worried.
The judge tried to assume his crisp air. But he seemed overwhelmed, with the
parents’ worry and with suspicion that the government was misrepresenting to
him what was really happening to the children.
“The way it’s supposed to work,” he told the parents, “you’re going to be sent
to a camp where your child will be allowed to join you. That’s my understanding
of how it’s supposed to work.”
“They told me they were going to take her away,” a mother interjected about her
young daughter.
“Well, let’s hope they don’t,” said Morgan. “You and your daughter, you should
be joined together.”
And then, for many seconds, he was silent.
“If You Can Imagine There’s a Hell”
Did Morgan know that his assurances to these parents were very likely false? I
asked his clerk, who told me that Morgan does not give interviews to the press.
But up and down the border this year, from Texas to California, immigrants
coming into the United States, even those applying for asylum at ports of
entry, have had their children taken from them.
According to data prepared by the Office of Refugee Resettlement, a division of
the Department of Health and Human Services that takes custody of children
removed from migrant parents, more than 700 children were taken from adults
claiming to be their parents from October 2017 through April 2018, including
more than 100 children under the age of 4. Declarations included in a lawsuit
filed earlier this year by the American Civil Liberties Union indicate that
immigrants apprehended in Brownsville were already having their children taken
away months ago. Lee Gelernt, the ACLU’s deputy director for immigrant civil
rights, told The Intercept that advocates working in Texas brought the
Brownsville cases to the ACLU’s attention.
Erika Guevara-Rosas, Americas director at Amnesty International, said in a
statement that the U.S. government’s separating children from their parents as
they seek asylum is “a flagrant violation of their human rights. Doing so in
order to push asylum seekers back into dangerous situations where they may face
persecution is also a violation of U.S. obligations under refugee law.”
But with the “zero tolerance” policy, the number of child separations promises
to increase. In one week in May, I counted six people in the Brownsville court
who said their children had been taken. There have also been reports of similar
separations in district courts located in McAllen and Alpine.
Judge Morgan could easily verify that parents are not being “joined together”
with their children in ICE detention centers. He could use a publicly
accessible, online ICE database to see where the people who’ve gone through his
own court are taken. In almost all cases, the destinations only house adults.
Another parent who appeared in Morgan’s court was from a Central American
country that provides no meaningful protection to women and children who are
victims of homicidal domestic violence. She asked for her identity to be
concealed, because she fears retaliation by the U.S. government. We will call
her Delia. Before fleeing her country, she was for years beaten up, cut,
assaulted with guns, and threatened with death by her partner. He also
threatened to kill their young child. When she hid in another city, he found
her and dragged her home.
Delia said she fled her country weeks ago and went on the road to Mexico,
eventually crossing the Rio Grande with her child on an inner tube. She saw
three Border Patrol agents watching her and floated in their direction, so she
could turn herself in.
Delia said that when she arrived later that night at the hielera — the Border
Patrol processing office — she told the officers that she and her child needed
asylum. She described the beatings and assaults and death threats. “Oh, come
on!” she said the officers snickered. “You and everyone else with that old
story!”
“You’re going to be deported,” she remembers them telling her. “And your child
will stay here.” The next morning, the child was taken. Delia fell on her knees
during the removal, wailing and begging not to be separated. Officials looked
on indifferently, she said, as her child screamed incessantly.
When I spoke with Delia a few days later, she was in ICE detention, without her
child, hours from Brownsville, and appeared to be in shock. She was having
problems concentrating and answering simple questions. She wept constantly. She
said she was wracked with fear and worried about her child, with whom she has
had no contact since their separation. She could not imagine being deported
back to her home country. “He will kill me there,” she said. “He will kill both
of us.” Neither could she imagine her child being left behind in America. Her
mind seemed shattered.
When she was able to organize her thoughts, Delia talked about two things. One
was the child. The other was God.
In Brownsville, Judge Morgan also started alluding to biblical matters. It was
Thursday, the fourth day of “zero tolerance” in his court, and defendants were
telling their stories. The judge had just asked Holly D’Andrea, the assistant
U.S. attorney handling illegal entry prosecutions that day, if it were true
that families were being reunited in detention. D’Andrea sounded uncertain, but
answered that she thought it was true.
“Tell you what,” the judge said slowly, with a hard edge in his voice, “if it’s
not, then there are a lot of folks that have some answering to do. Because what
you’ve done, in effect, by separating these children is you’re putting them in
some place without their parents. If you can imagine there’s a hell, that’s
probably what it looks like.”
Seconds later, he pronounced a blanket sentence for all of the defendants: no
prison, no big fine — merely time served. With that, his court concluded. In 46
minutes that morning, 32 people had been convicted, sentenced, and dispatched
en masse to ICE detention. “All rise!” said the bailiff, and the judge exited
the room. The chained migrants then shuffled and clanked to their fates,
without their children.
Top photo: The photo shows a mass trial of immigrants at the Lucius D. Bunton
Federal Courthouse in Pecos, Texas.
