OIG Report on DOJ’s “Zero-Tolerance Policy”: Simply Appalling

In January, the DOJ Office of the Inspector General issued its report on the agency’s planning and implementation of its “zero-tolerance policy” for immigration offenses involving illegal entry and attempted illegal entry into the United States. The policy was announced and led by then Attorney General Jeff Sessions in April 2018. The policy required each U.S. Attorney’s Office on the Southwest border to prosecute all referrals for illegal entry violations referred by DHS “to the extent practicable.” The decision to prosecute adults entering the country as part of a family unit represented a change in long-standing DOJ and DHS practices, resulting in what is believed is 5,000 children being separated from their families. As of late February, some 500 children remain separated.

The OIG’s detailed report found that the DOJ, and in particular the Office of the Attorney General (OAG), failed to effectively prepare and manage the implementation of the zero-tolerance policy. AG Sessions and a small number of other DOJ officials understood that prosecution of these families would result in children being separated from their parents. Indeed, Sessions intended that the zero-tolerance policy would be strictly implemented by the U.S. Attorneys, that it would result in DHS changing its longstanding policy and referring for criminal prosecution adult family unit members who entered the country illegally with children, and that the U.S. Attorneys’ discretion to decline such cases would be limited.

The DOJ leadership and OAG did not coordinate with the Southwest border officials or the federal courts prior to implementation of the new policy, nor did the OAG understand or consider how the family separation process would meet legally mandated requirements relating to the care and custody of separated foreign national children. Federal law requires DHS to place separated children in the custody of HHS’s Office of Refugee Resettlement (ORR) within 72 hours of their apprehension. Completing a prosecution within such a timeline was, in most cases, a practical and legal impossibility, even if a defendant sought to plead guilty and be sentenced immediately. Indeed, following implementation of the zero-tolerance policy, prosecuted adults typically remained in DOJ custody for three to seven days, and in some districts even longer. Even after learning about DHS’s and HHS’s difficulties in identifying the location of separated children, DOJ leadership did not take steps to reconsider their prior assumptions about the ability to immediately reunify separated families. The report makes clear that the DOJ did not plan for the “operational, resource, and management impacts” that a substantial increase in immigration prosecutions resulting from the zero-tolerance policy would have, or for the human toll. They simply did not care.

Based on the OIG report, three recommendations were made to assist the DOJ in implementing future policies: (1) prior to issuing a significant policy affecting multiple DOJ components, coordinate directly with those affected to ensure effective implementation of the policy, (2) establish guidance for U.S. Marshals Service staff to follow in working with the ORR case workers to facilitate communication between separated families, and (3) work with the ORR and the DHS to develop a formal agreement regarding the facilitation of communication between separated children and their parents in U.S. Marshals Service custody.

We certainly pray this never happens again.