Why are we permitting federal child abuse at our border?

House Judiciary Chair Jerry Nadler (D-N.Y.) recently said that border security officials involved in the separation and decidedly unsafe, un-sanitary treatment of migrant children at the border should be prosecuted for child abuse. Nadler gets it half right. On the one hand, criminal prosecution rarely, if ever, solves our problems. On the other, it is certainly vital to shine a light on the wrongdoing and hypocrisy in which the government is engaged. The wrongdoing has been well chronicled (though expanded access to detention facilities is still necessary). 

As for the hypocrisy, think about it this way: State governments routinely drag poor and minority parents through family court proceedings for failing to do many of the things these officials are being accused of. Yet, in most cases, these parents simply do not have the resources to buy the toothbrushes, toothpaste and blankets they so desperately want to provide. If those same parents blatantly admitted that child cruelty was the point — as President Trump just tweeted — the state almost certainly would investigate and remove their children immediately, and possibly forever.  Yet, here, the federal government gets to continue to “care” for these children without official repercussions, rules or oversight.

For example, in Texas, where the Clint facility is located, the Texas Department of Family and Protective Services could charge a parent with neglect for treating children the same way that border officials are treating them. Under Texas law, if a parent fails “to provide a child with food, clothing, or shelter necessary to sustain the life or health of the child,” the parent could be found neglectful and the children would be placed into foster care — indeed, thousands of families are separated this way every year. Yet our federal government refuses to acknowledge that the most basic of needs exist for these children and, even worse, argues in court that it has no obligation to provide for them. 

It is painfully clear that, as with the child welfare system, this likely would not happen to white children. The majority of children in the child welfare system across the country are children of color. In America, it seems, it’s much easier to subject people to horrible injustices when they are in the minority. Just ask your Japanese friend whose parents were forced into a camp. Or your black friend whose mother was separated from her family for days, months, or even years based on nothing more than unaffordable cash bail. Or your Muslim friend who no longer can visit relatives because of the travel ban. 

As many have noted, the family separation crisis at the border is just the most recent and visceral manifestation of our country’s addiction to separation, prosecution and cruelty writ large. What happens at our border happens inside it as well.

If and when these children are reunited with their parents, sure, the parents can give them a bath, fill their stomachs, and undo some of the physical damage that has been inflicted. But many of the injuries are invisible and irreversible. As I note in my forthcoming article, children who are separated from their parents suffer lifelong trauma, separation anxiety, attachment disorders, anxiety and post-traumatic stress disorder.

And, as the American Association of Pediatrics noted regarding family separations at the border, such separation “can cause irreparable harm, disrupting a child’s brain architecture and affecting his or her short- and long-term health. This type of prolonged exposure to serious stress — known as toxic stress — can carry lifelong consequences for children.” Needless to say, children suffering these traumas, at least in American studies, end up with worse educational and financial outcomes, making them less able to contribute to society as adults. For American children, that means we’re simply shooting ourselves in the foot. For migrants, we might be further kneecapping their home country economies, making them more likely to return.

Realistically, the Department of Justice will not criminally prosecute its own officials, nor is prosecution the solution we need. But since we’re all about deterrence these days, here’s hoping that the creative and brilliant lawyers in this country will find a way to hold these officials accountable — and that people of all stripes will bottle their outrage and use it to end family separation across our legal systems, from immigration to family law to criminal law and beyond. No one should live in these conditions any longer.  

Shanta Trivedi is a clinical teaching fellow at the University of Baltimore Law School’s Bronfein Family Law Clinic and a former Brooklyn public defender. Follow her on Twitter @shantatrivedi.