The Zero Tolerance Migration Policy: Two Moral Objections

Ethical debates about migration concern a number of reasonable disagreements over whether—and the extent to which—political communities have the right to enforce their borders. What is hardly ever in doubt, even among those who support the “right to exclude” (at least those who defend the right on moral terms), is that there are limits to a political community’s exercise of this right: states cannot use force against those seeking asylum or basic human rights protection, and some means of policing borders are morally unacceptable.¹

Although I am skeptical of arguments in defense of the right to exclude, here, I will assume that a convincing argument can be given. On this assumption, I will evaluate the Trump administration’s current zero-tolerance migration policy, which entails the separation of migrant children from their parents.² I raise two moral objections to the policy, though this is certainly not an exhaustive list. First, I argue that the policy interferes with the United States’ duties to foreigners suffering human rights deprivations. Secondly, I argue that the policy—subjecting children to trauma as a means of deterrence—is an impermissible means of enforcing what may be an otherwise legitimate goal. The ends do not always justify the means, especially when children are involved.

In the last six weeks, at least 2,000 children—100 under the age of four—have been separated from their parents and placed in detention centers.³ This separation can be abrupt: in one news report a Honduran woman revealed that her baby was taken away from her while she breast-fed.⁴ The conditions inside some facilities are grim. In one, a converted Wal-Mart in McAllen, Texas, children are “plac[ed] 20 or more in a concrete-floor cage and provid[ed] foil blankets, thin mattress pads, bottled water and food.”⁵ One report describes how a 16-year-old girl in custody was responsible for changing the diapers of an unrelated infant.⁶ The President of the American Academy of Pediatrics reported seeing a more child-friendly facility than some of the worst depictions, though she noted that she was told facility workers were unable to physically comfort the children.⁷ The children are supposed to be detained for less than 72 hours, but reports suggest the agency is not always able to release children within this time frame.⁸ It is unclear whether this is due difficulty finding relatives with whom the children can be placed or simply an over-burdened agency.

The administration responded to these reports with denials,⁹ with disturbing—and anti-constitutional—Biblical justifications for enforcing the law (which is not really a law),¹⁰ by shifting the blame to Democrats,¹¹ and by claiming that, while not ideal, the policy is needed as a deterrent. The latter is the most consistent justification for the policy. In May, Attorney General Jeff Sessions defended the policy of family separation by saying, “If you don't want your child to be separated, then don’t bring them across the border illegally. It's not our fault that somebody does that.”¹² Similarly, Chief of Staff John Kelly said, “A big name of the game is deterrence…The children will be taken care of—put into foster care or whatever—but the big point is they elected to come illegally into the United States, and this is a technique that no one hopes will be used extensively or for very long.”¹³

Among the many objections to this policy is that, in trying to deter unauthorized migration, the administration is shirking the United States’ duty to asylum seekers and those whose human rights are not fulfilled in their country of origin. States, or more accurately their citizens, have basic moral duties to those who are persecuted. Many of these moral duties have been codified in international or regional refugee law, however imperfectly these are enforced.¹⁴ Whether one justifies the relevant laws and conventions as a duty of mutual aid, humanitarianism, or simply basic human decency, it is hard to deny that a state should be a refuge when suffering arrives on its doorsteps.¹⁵

And yet the administration’s response to those seeking asylum is to prosecute them for illegal entry, since the administration is prosecuting anyone who enters illegally.¹⁶ The administration wants asylum seekers to present themselves “at authorized ports of entry,” and it claims not to prosecute and separate asylum seekers who abide by this requirement. Even if true—though there is at least one case of an asylum seeker who presented herself appropriately and nonetheless was separated from her child¹⁷—this in itself is an unlawful and unreasonable demand. Punishing asylum seekers for illegal entry is breach of Article 31 of Refugee Convention and Protocol.¹⁸ Plus, many asylum seekers are suspicious of government officials. They have fled governments that either directly persecuted them or allowed others to do so, and there are good reasons for asylum seekers to be suspicious of U.S. Border Patrol specifically. Agents have turned away asylum seekers or ignored their petitions.¹⁹ Further, Attorney General Sessions announced last month he would make it harder for asylum claims to be successful by limiting the acceptable reasons for asylum. Departing from an Obama Administration policy, victims of domestic abuse and gang violence are no longer eligible for asylum.²⁰ For these people, the only way they may be able to receive protection in the United States is through unlawful entry.

Even if some parents would not qualify for asylum, and the United States has a right to control its borders, it is not the case that this right can be enforced at any cost. Among others, José Jorge Mendoza and Sarah Fine have both challenged the moral legitimacy of migration regimes by pointing out the way they have been unjustly implemented and enforced. They raise grave concerns about the permissibility of policies that, in practice, have highly unjust implications.²¹ In the current case, what is most troubling about the administration’s response is the way it uses the intentional infliction of suffering on children as a way to exercise its presumptively legitimate right to exclude.

Among the groups objecting to the policy, the separate detention of children has been widely condemned by mental health professionals. The American Psychological Association criticized the policy in a late-May press release,²² and a circulating petition objecting to the policy has already been signed by over 9,300 mental health professionals. In a Washington Post op-ed, two psychologists made a convincing case that the infliction of suffering on children amounts to torture.²³ As the petition points out, “Not only is the terror these children experience at the border not temporary, these children have no way of knowing if and when they are ever going to see their parents again.” For these children, the separation and detention is likely to be one of many traumatic events they have experienced on their journey, and trauma can have long-lasting effects on children. The National Child Traumatic Stress Network states that children who experience complex trauma (that is, “exposure to multiple traumatic events”) can experience long-term physical, cognitive, emotional, and relational consequences.²⁴

Even if some of the effects of trauma are treatable over time, there is no way the administration can guarantee mental healthcare will be provided. Further, the subsequent instability in the lives of these children is likely to hinder their recovery. More fundamentally, there is simply no justification for the U.S. government to inflict this type of suffering on children when there are alternatives to doing so.

The way that children are being targeted as deterrents brings to mind Ursula Le Guin’s haunting short story “The Ones Who Walk Away from Omelas.” In the story, the happiness of a nearly-idyllic city depends upon the suffering of a child whose fate is known by all residents. The child is kept in a basement away from sunlight in abhorrent conditions. Some residents visit the child, and when they do they are “shocked and sickened.” These visitors,

would like to do something for the child. But there is nothing they can do. If the child were brought up into the sunlight out of that vile place, if it were cleaned and fed and comforted, that would be a good thing, indeed; but if it were done, in that day and hour all the prosperity and beauty and delight of Omelas would wither and be destroyed. Those are the terms. To exchange all the goodness and grace of every life in Omelas for that single, small improvement: to throw away the happiness of thousands for the chance of the happiness of one: that would be to let guilt within the walls indeed.²⁵

The title, “Those Who Walk Away from Omelas,” refers to the residents who simply cannot bear knowing their happiness comes at the expense of extreme suffering: they decide to leave Omelas. On one reading, the moral of the story is that that there are some positive ends that come at too high a cost.

The responses available to Americans, fortunately, are not as limited as those facing the citizens of Omelas. Americans need not decide between living with this injustice or walking away, and the wellbeing of America does not depend upon the suffering of children. Even if we concede that the right to exclude can be justified and that migration controls make Americans better off—though the evidence here is not clear—some policies simply go too far. Americans must decide which migration policies are most compatible with their moral commitments, and they must condemn policies that are needlessly cruel.

Notes

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