Bipartisan Group of Former United States Attorneys Call on Sessions to End Family Separation

Dear Attorney General Jefferson B. Sessions:

We write as former United States Attorneys who have served under both Republican and Democratic Presidents. Like the majority of Americans, we have been horrified by the images and stories of children torn from their families along our nation’s Southwest Border. And like a majority of Americans, we are appalled that your Zero Tolerance policy has resulted in the unnecessary trauma and suffering of innocent children. But as former United States Attorneys, we also emphasize that the Zero Tolerance policy is a radical departure from previous Justice Department policy, and that it is dangerous, expensive, and inconsistent with the values of the institution in which we served.

When parents and their children arrive at our border, particularly when they come seeking the protection of the United States under our asylum laws, we witness a universal story of humanity: parents willing to face all odds to protect their children. Every administration for decades has grappled with the complexities inherent in families illegally crossing our borders. Until now, every administration has chosen a path that has balanced the need for effective enforcement and deterrence with humanity and compassion. This balanced approach is especially critical when we are faced with persons seeking entry who may be eligible under established U.S. laws for the protection of asylum, as they flee persecution, horrific violence, or danger in their home countries.

In the name of deterring illegal immigration, your Zero Tolerance policy abandons that balance. Instead, your new Zero Tolerance policy requires federal prosecutors in U.S. Attorney’s Offices in Southern California, Arizona, New Mexico, Western Texas, and Southern Texas to depart from a decades-long approach — approved by Republican and Democratic Administrations alike — for charging illegal immigrants. Under your policy, federal prosecutors in those Districts must charge, arrest and detain the individual in each and every “illegal entry” case under 8 U.S.C. § 1325(a). “Illegal entry” constitutes a Class B misdemeanor — a crime that has a maximum punishment of only six months in jail.

In our experience, U.S. Attorneys under both Republican and Democratic administrations have for decades been given discretion to determine how and when to charge misdemeanor illegal entry cases to address the needs of their districts. Crucially, the Department of Justice has also worked to ensure that families apprehended while attempting to enter the country illegally are treated with compassion, are detained together whenever possible, receive expedited deportation, are allowed to remain together pending an asylum determination, and are always reunited. Now, under your policy, because children cannot accompany their arrested parents to an adult criminal detention center, these children, apparently including infants and toddlers, are routinely separated from their parents. Under the auspices of the Department of Health and Human Services, the parent-less children — who often do not speak English — are transferred to and detained at a tent city, a refashioned Wal-Mart, or other detention facilities in cities like Chicago, thousands of miles away from their parents.

The law does not require the systematic separation of families under these circumstances. Collectively, as former United States Attorneys, we have prosecuted tens of thousands of cases involving far more serious crimes than misdemeanor illegal entry offenses. And even in those far more serious cases, decisions involving the separation of children from their parents were made with extraordinary caution, and only after an evaluation of the specific circumstances of a particular case. Today, by contrast, your Zero Tolerance policy has produced a tragic and unsustainable result, without taking into account each family’s specific circumstances. Under your policy, families and children are greeted with unexpected cruelty at the doorstep of the United States, instead of with relief or asylum in the greatest country in the world. Until now, no Republican or Democratic administration, nor any prior Attorney General, has endangered children in order to deter illegal entry.

Traumatizing children by separating them from their parents as a deterrent for adult conduct is, in our view, sufficient reason to halt your policy. But as former U.S. Attorneys, we know that the collateral consequences of this ill-advised approach ultimately render us less safe as a nation. Running a United States Attorney’s Office, or the Department of Justice itself, requires the thoughtful and careful management of limited resources. In short, there are only a finite number of federal prosecutors to address the broad swath of dangerous and illegal activity that takes place in our country.

It is a simple matter of fact that the time a Department attorney spends prosecuting misdemeanor illegal entry cases, may be time he or she does not spend investigating more significant crimes like a terrorist plot, a child human trafficking organization, an international drug cartel or a corrupt public official. Under your Zero Tolerance policy, firearms cases, violent crime cases, financial fraud cases, and cases involving public safety on Indian reservations all take a back seat to these lesser, weaker misdemeanor cases. In fact, requiring U.S. Attorneys to bring these misdemeanor cases in every instance detracts from your own stated priority to fight gangs and violent crime by groups such as MS-13.

The combination of unnecessary child trauma and dangerous national security impact is exacerbated by the crushing expense of arresting and detaining every “illegal entry” misdemeanor defendant. At a time when federal prison costs are threatening to blow an unfillable hole in the Department of Justice’s budget, the United States must now bear the cost of detaining parents and their entire families for months as their misdemeanor cases wind through the court system. This fiscal burden also falls on the Department of Homeland Security, whose officers and agents process the parents; federal defenders’ offices who represent them; the Department of Health and Human Services which houses the children; and the already overburdened federal courts which must provide these parents due process and, ultimately, justice.

As former U.S. Attorneys, we know that none of these consequences — nor the policy itself — is required by law. Rather, its implementation and its execution are taking place solely at your direction, and the unfolding tragedy falls squarely on your shoulders. It is time for you to announce that this policy was ill-conceived and that its consequences and cost are too drastic, too inhumane, and flatly inconsistent with the mission and values of the United States Department of Justice. It is time for you to end it. Effective leadership and the integrity of the world’s leading law enforcement agency require nothing less.

Sincerely,

Alan Bersin
Former U.S. Attorney
Southern District of California

Rebecca Betts
Former U.S. Attorney
Southern District of West Virginia

Preet Bharara
Former U.S. Attorney
Southern District of New York

Daniel Bogden
Former U.S. Attorney
District of Nevada

Kenyen Brown
Former U.S. Attorney
Southern District of Alabama

Dennis Burke
Former U.S. Attorney
District of Arizona

Robert L. Capers
Former U.S. Attorney
Eastern District of New York

Don Cazayoux
Former U.S. Attorney
Middle District of Louisiana

Sanford C. Coats
Former U.S. Attorney
Western District of Oklahoma

Tristram J. Coffin
Former U.S. Attorney
District of Vermont

Jeffrey Collins
Former U.S. Attorney
Eastern District of Michigan

Michael W. Cotter
Former U.S. Attorney
District of Montana

Robert Crouch
Former U.S. Attorney
Western District of Virginia

Eileen M. Decker
Former U.S. Attorney
Central District of California

Thomas E. Delahanty II
Former U.S. Attorney
District of Maine

Steven M. Dettelbach
Former U.S. Attorney
Northern District of Ohio

Jenny Durkan
Former U.S. Attorney
Western District of Washington

Conner Eldridge
Former U.S. Attorney
Western District of Arkansas

Wifredo A. Ferrer
Former U.S. Attorney
Southern District of Florida

Stephanie A. Finley
Former U.S. Attorney
Western District of Louisiana

Paul J. Fishman
Former U.S. Attorney
District of New Jersey

Deborah R. Gilg
Former U.S. Attorney
District of Nebraska

Booth Goodwin
Former U.S. Attorney
Southern District of West Virginia

Saul Green
Former U.S. Attorney
Eastern District of Michigan

Walt Green
Former U.S. Attorney
Middle District of Louisiana

Barry Grissom
Former U.S. Attorney
District of Kansas

Melinda Haag
Former U.S. Attorney
Northern District of California

Richard Hartunian
Former U.S. Attorney
Northern District of New York

Kerry B. Harvey
Former U.S. Attorney
Eastern District of Kentucky

Timothy Heaphy
Former U.S. Attorney
Western District of Virginia

Thomas B. Heffelfinger
Former U.S. Attorney
District of Minnesota

David Hickton
Former U.S. Attorney
Western District of Pennsylvania

Dwight W. Holton
Former U.S. Attorney
District of Oregon

Roscoe C. Howard, Jr.
Former U.S. Attorney
District of Columbia

David Iglesias
Former U.S. Attorney
District of New Mexico

William Ihlenfeld II
Former U.S. Attorney
Northern District of West Virginia

Brendan V. Johnson
Former U.S. Attorney
District of South Dakota

John P. Kacavas
Former U.S. Attorney
District of New Hampshire

Leon Kellner
Former U.S. Attorney
Southern District of Florida

Bill Killian
Former U.S. Attorney
Eastern District of Tennessee

Nicholas A. Klinefeldt
Former U.S. Attorney
Southern District of Iowa

Kathryn Landreth
Former U.S. Attorney
District of Nevada

Jim Lewis
Former U.S. Attorney
Central District of Illinois

Harry Litman
Former U.S. Attorney
Western District of Pennsylvania

Karen Loeffler
Former U.S. Attorney
District of Alaska

Ronald Machen
Former U.S. Attorney
District of Columbia

Neil H. MacBride
Former U.S. Attorney
Eastern District of Virginia

Kenneth Magidson
Former U.S. Attorney
Southern District of Texas

Pamela C. Marsh
Former U.S. Attorney
Northern District of Florida

Jerry Martin
Former U.S. Attorney
Middle District of Tennessee

Damon Martinez
Former U.S. Attorney
District of New Mexico

Roberto Martinez
Former U.S. Attorney
Southern District of Florida

Alejandro Mayorkas
Former U.S. Attorney
Central District of California

John McKay
Former U.S. Attorney
Western District of Washington

Barbara L. McQuade
Former U.S. Attorney
Eastern District of Michigan

Zane Memeger
Former U.S. Attorney
Eastern District of Pennsylvania

Eric Miller
Former U.S. Attorney
District of Vermont

Michael J. Moore
Former U.S. Attorney
Middle District of Georgia

Florence Nakakuni
Former U.S. Attorney
District of Hawaii

Peter F. Neronha
Former U.S. Attorney
District of Rhode Island

Bill Nettles
Former U.S. Attorney
District of South Carolina

Charles M. Oberly III
Former U.S. Attorney
District of Delaware

Kris Olson
Former U.S. Attorney
District of Oregon

Wendy J. Olson
Former U.S. Attorney
District of Idaho

Carmen Ortiz
Former U.S. Attorney
District of Massachusetts

Channing Phillips
Former U.S. Attorney
District of Columbia

Kenneth A. Polite
Former U.S. Attorney
Eastern District of Louisiana

George Proctor
Former U.S. Attorney
Eastern District of Arkansas

Timothy Q. Purdon
Former U.S. Attorney
District of North Dakota

Ripley Rand
Former U.S. Attorney
Middle District of North Carolina

Carole S. Rendon
Former U.S. Attorney
Northern District of Ohio

Betty Hansen Richardson
Former U.S. Attorney
District of Idaho

Chuck Rosenberg
Former U.S. Attorney
Eastern District of Virginia

Kevin V. Ryan
Former U.S. Attorney
Northern District of California

Patrick M. Ryan
Former U.S. Attorney
Western District of Oklahoma

Sarah Saldana
Former U.S. Attorney
Northern District of Texas

Edward L. Stanton, III
Former U.S. Attorney
Western District of Tennessee

Donald K. Stern
Former U.S. Attorney
District of Massachusetts

Carter M. Stewart
Former U.S. Attorney
Southern District of Ohio

Edward J. Tarver
Former U.S. Attorney
Southern District of Georgia

Kevin W. Techau
Former U.S. Attorney
Northern District of Iowa

Anne Tompkins
Former U.S. Attorney
Western District of North Carolina

Joyce White Vance
Former U.S. Attorney
Northern District of Alabama

John Vaudreuil
Former U.S. Attorney
Western District of Wisconsin

Benjamin Wagner
Former U.S. Attorney
Eastern District of California

Thomas Walker
Former U.S. Attorney
Eastern District of North Carolina

John Walsh
Former U.S. Attorney
District of Colorado

Daniel G. Webber
Former U.S. Attorney
Northern District of Oklahoma

Stephanie Yonekura
Former U.S. Attorney
Central District of California

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