Hidden horrors of “Zero Tolerance” — Mass trials and children taken from their parents

Nathan, The Intercept, May 29 2018

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.
Federal Courthouse, Pecos, Tex.

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.
But now,
in federal courts like Morgan’s, not only are parents are finding themselves
charged with the crime of “illegal entry,” but the government is breaking up
, sending children to detention centers, often hundreds of
miles from their mothers and fathers, or to distant foster homes.
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.
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.

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.
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.
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.
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.
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.
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
they roared in unison.
anyone offered you anything or threatened you?”
roar: “No!”
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.”
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?”
“OK, you
may take a seat, ma’am. Mr. Escobedo, how do you plead, sir?”
“Culpable.” Guilty.
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
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
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.
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.”
told me they were going to take her away,” a mother interjected about her young
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”
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.
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.
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
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.
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.
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
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.
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!”
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.
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.”
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.