Tuesday Talk*: Do What For The Children?

It started with a question by Radley Balko about the accuracy of claims that “catch & release” put children in the hands of abusers. Like Radley, I was skeptical of the claims, but also considered what would happen when the sad story of some child enslaved came out. Much as it was unlikely this would be a huge problem, it was quite likely that it would happen, even if only to a few. How many is a few here? Beats me.

But since it only takes an anecdote for a deep dive into inductive reasoning to confirm the unwavering bias that this is all because we are suddenly horrified and exhausted, would we be capable as a nation of accepting an imperfect solution, or would we just ping pong between hatred for one policy or hatred for another, because there was no option but to assign blame?

As usual, the responses were largely idiotic, irrelevant and/or baseless, although the proponents were certain of their righteousness and brilliance. My favorite was the “big brain” theory, a particularly stupid response that shrugs off responsibility beyond virtue signalling under the certainty that some smarter person somewhere  must obviously have the perfect answer, thus absolving herself from any effort to think.

But smart people were chiming in on the subject all over twitter. The only problem is they were uniform in their condemnation of the policy of separating children from parents, but offered nothing in its place.

A few responses, however, brought actual facts into the mix. Andrew Fleischman found stats showing that asylum seekers released on bond had a 98% return rate with counsel, 86% without counsel. These numbers came from an advocacy group. In contrast, a post at Marshall Project gave a lower rate, but without any nuance or basis, as is typical of the quality of its posts.

Of nearly 100,000 parents and children who have come before the courts since 2014, most asking for refuge, judges have issued rulings in at least 32,500 cases, court records show. The majority – 70 percent – ended with deportation orders in absentia, pronounced by judges to empty courtrooms.

Mario Machado then introduced some trench reality into the situation.

And just to end the persistent compulsion to make this the usual tribal debate, the separation of children from parents happened under Obama as well as now, and all the beloved politicians and media celebrities bemoaning its immorality are either morons or hypocrites. Having acknowledged this, let’s get past it.

There are children at this very moment in detention centers separated from their parents (if they are parents, which isn’t necessarily true or clear) who need to be addressed. What do we do with them now?

No one cares about your fantasy reinvention of the entirety of immigration; deal with the problem on the table. No one cares that Trump isn’t the first to do this; deal with the problem on the table. No one cares how sad this makes you feel, how immoral this is or how something must be done. What must be done?

Deal with the reality. Deal with the law, immigration court practice, statistics and facts. Deal with the tribal antagonisms that make every flawed approach untenable because every option has its problems and Trump-haters will hate whatever he does, even if it’s the least cruel option possible.**

There are kids alone in caged Walmarts at this very moment. So what do we do with the children?

*Tuesday Talk rules apply.

**For the unduly passionate, is your concern for the welfare of these living, breathing children stronger than your hatred of Trump? If not, and you will condemn him as “literally Hitler” no matter what he does, then the children are collateral damage to you, just as they are when used as a “deterrent.” Is your hatred of Trump more important than the welfare of these children?

53 thoughts on “Tuesday Talk*: Do What For The Children?

  1. Jay

    It’s amazing to me how impossible it is for you to recognize this is a new phenomenon. The Twitter you cited lays that out. The lawyer says the children were held with their mothers. He says this speration is a new policy. Something is wrong with you.

    1. SHG Post author

      Do you ever wondered why all the other criminal defense lawyers have’t made you King of Criminal Defense Lawyers?

      1. Jake

        If intellectual honesty is important to you as you claim it is, you may want to reread the entire thread in that Twit, then do a little more research and correct the record Scott. Jay is correct.

        1. SHG Post author

          I appreciate why you can’t grasp the facts here, as it contradicts every bias you bring to the fore. And notwithstanding Tuesday Rules, I’m not going to let you hijack the comments, since pretty much all the lawyers here think you’re an annoying dolt, even though I love you. That said, the problem you face is that those of us who dealt with immigrants and their criminal defense have actual knowledge of what happened, what the twitter thread means, and why you’re clueless.

          Family detention didn’t mean keeping families together, but warehousing adults in one place children in another. “Family detention facility” was just a name to confuse the useful idiots. The law doesn’t allow children to be house with adults charged with crimes for sound reasons.

          1. Jake

            So you’re not going to publish my longer comment because reasons? OK, I see how things are going around here. Freedom of expression denied.

            1. SHG Post author

              Normally, I would trash this comment, but I post it for the lulz. So you couldn’t wait until I returned before losing your paranoid shit? Oh Jake. Get a grip, pal. Now, you’re cut off. As I’ve explained to you numerous times, no one gives a fuck about your non-lawyer view of the world except you.

          2. Norm

            One of the tweets said “Women aren’t allowed to let their children farther than 3 feet away from them.”

            I’m in the group that misunderstood what “Family Detention facility” meant. Nevertheless, this tweet doesn’t seem consistent with “warehousing adults in one place children in another”.

            1. SHG Post author

              In some instances where toddlers were left with their mothers, this was the case. Variations on a theme happened over time and locations, which creates the sort of occasional intolerable ambiguity that raises questions like yours. Real life is replete with variations. It doesn’t change the rule, but creates vast confusion for the simplistic who expect everything to be black and white.

  2. PseudonymousKid

    I’ll bite. It seems as of May there were 10,773 children who were taken into custody crossing the border. Apparently, some 2,000 were added to that figure as of June 18, 2018, but reports still put the total number at somewhere above 10,000.* They are currently housed by the Office of Refugee Resettlement (ORR). Some of the children held attempted to cross the border alone, but some are separated from their relatives in the U.S. or during crossing. ORR does attempt to find sponsors for the children, but the government requires fingerprinting and information sharing with Homeland Security prior to releasing the children to anyone.

    It’s unclear what portion of the children actually have relatives they can be housed with who aren’t also incarcerated themselves. Even if the law were to change overnight and immigration judges bond everyone out; where will these people go? Are the children really better off on the streets? There’s going to be recidivists as well. Those denied asylum and deported who nevertheless keep trying anyway. Where there’s a will there’s a way.

    The government will always have to hold some children it seems. Some of them have nowhere else to go. It can hold fewer, though. It can allow relatives to take custody of children without fingerprinting or automatic reporting to DHS. Some of the children, like all children, will be abused, but most will be better off with family than without. Changing the law to allow judges to bond out first time asylum seekers and their children seems only humane. Let the families stay and seek asylum together. Provide them counsel and a fair shot at asylum once as well.

    Once that shakes out, let’s see how many children are left in custody. Hopefully a lot fewer.

    I really really wanted to discuss open borders, but you were specific in wanting to talk about apples and not oranges.


    1. SHG Post author

      If they hand the kids over to relatives (assuming they are, indeed relatives), and the kids ends up in a child porn movie, enslaved in a chicken factory or dead (and someone will end up poorly), will we accept it as a cost of not keeping them caged or will there be screams that “something must be done”?

      1. Keith

        Ideally, we can send kids off to live with relatives. But for those that can’t or don’t have relatives to go with, why not just use the system we already have that places kids with other people. Are the rules we have in place for figuring out if foster and adoptive parents are “good enough” workable in this space to see if the kids can go somewhere else?

        If a parent signs off on the kid going to a relative and something bad happens, why would that make this a bad policy?

        1. SHG Post author

          Rather than ask, finish your thought by recognizing what are the negatives and problems with it, or is this a perfect solution?

          1. Keith

            Fair enough. The negatives of placing kids with relatives or foster homes during the pending asylum reviews are roughly the same as the negatives of placing kids while parents are in any jail, with the added kicker that they may have to eventually be deported (which is a problem if we might not be able to find them again).

            That seems like a lot of ifs. While we certainly may have a hard time trying to find adults dead set on not being found, the kids are going to need support systems in place to survive and those systems make them far easier to find.
            (caveat: I have a bias towards kids being admitted which may be clouding my judgment here)

            While I’ve seen mention of risks of human trafficking, I haven’t yet seen hard data to show that it’s a problem. But assuming it’s real and they are going this route, I fail to see why we wouldn’t go after such a crime any differently than we would go after trafficking of citizens. It’s not like anyone would be in favor of warehousing foster kids in detention centers on the off chance one or even a few of them will be harmed.

            There are no perfect solutions that don’t come with massive body counts. But I cannot see why letting kids go to live with people that are vetted and agree to take them would make anyone worse off.

            If you have a reason, convince me.

            1. Scott Jacobs

              While I’ve seen mention of risks of human trafficking, I haven’t yet seen hard data to show that it’s a problem.

              Since when has that stopped Congress?

            2. SHG Post author

              The human trafficking arg is mostly anecdotal, with some lightweight stats of little persuasive value. Is this because it doesn’t happen or because there’s been no hard data collected?

      2. B. McLeod

        Of course there will be screams that something must be done. The underlying premise here is the arrogant “white man’s burden” meme that assumes the United States can and should solve every problem for every refugee from every third world hellhole. People are poor? They can come here, where we have no poverty. Their countries are violent? They will be safe here, where we have no violence. Domestic abuse at home? We’ve got that covered too. Cultural bias against trannies? Send them all to our friendly shores. The basic idea is stupid, unrealistic, and itself born up by an ignorant sense of superiority. Stupid, unrealistic people further the notion, never seeing it for what it is. But of course, they will never, never stop.

        1. SHG Post author

          It is a curiosity that the solution to the problems in other countries from which people flee isn’t that they should get their butts back to their own country and fix what ails it.

          1. B. McLeod

            Which brings me to my modest proposal.

            We should help the children with a children’s story. More particularly, this children’s story:


            Friendly translators should read it to the children in their primary language, and then, explain the point of the story if any still don’t get it. Then, since the key-slapping slippard isn’t going to let them into Solla Sollew, we give each child a bat, of size and weight matched to the child’s stature and development, and we send them home.

  3. Jake

    “The only problem is they were uniform in their condemnation of the policy of separating children from parents, but offered nothing in its place.”

    Here’s an alternative: Don’t separate children and parents. It’s cruel, inhumane, and unnecessary.

    Ignoring your false claim it was also Obama’s policy, let’s assume for the sake of argument this has been US policy since 1787, and not a new policy enacted last month by Jeff Sessions, designed to deter families seeking asylum and be used as a bargaining chip in future negotiations.

    Well, now we know. And with the stroke of a pen, Trump, Sessions, Secretary Nielsen, or Commissioner McAleenan could end this disgraceful policy by, at the very least, allowing women and children who crossed together to stay together. That’s what we do for the children. Regardless of their surroundings, keeping them together with their mothers is the base level of human decency Americans can and should offer.

        1. SHG Post author

          Wait a few days and see what happens. Signing the EO doesn’t change the problems. What it does accomplish is pacifying the useful idiots.

    1. Kay

      How do you know it is cruel and inhumane to separate the children and parents? Why do many assume the illegal immigrants are cozy happy families, a la The Brady Bunch or The Huxtables? As a child, my parents did not spare the rod, and I was made to toil in farm fields. There were many times I wished to be separated from them.

      Moreover, our criminal justice system separates babies and children from parents all the time. Where do juvenile criminals go?

      For whatever reason this is the new news of the day. In my opinion, the attention to this problem is someone’s attempt to create a narrative that paints evil where none exists. There are no easy answers.

        1. Kay

          The happy family meme, not the actors. Weird that actors expect people to separate them from the character they are playing–but Mr. Cosby didn’t get a pass. But that is another rabbit hole.

    2. Kay

      What is an acceptable length of time for the “children” and their mothers to be separated? What about fathers? Feminists have long argued a woman’s right to have a career, and many careers involve extensive travel that takes mothers away from their children. (For instance, mothers and fathers in the military.)

      I am always suspect of “for the children” arguments. Especially this one. Crossing the border is illegal. The parents (if they actually are) know this. They are knowingly using their children by putting them in harm’s way.

    3. Scott Jacobs

      Here’s an alternative: Don’t separate children and parents. It’s cruel, inhumane, and unnecessary.

      That’s a great idea.

      A shame the federal court says they aren’t allowed to do that.

      Any other bright ideas?

      1. Jake

        Whoops, guess I had the right idea. Thanks for playing though. (If you don’t know, turn on the news.)

  4. MonitorsMost


    Not exactly the same as when your mother asks you if the door was closed or if your wife asks you if you shut the garage door.

  5. phv3773

    An aggravating factor is not enough money, and therefore not enough of anything. Not enough courtrooms, not enough judges, not enough attorneys, not enough facilities. And not enough defense attorneys, of course. Backlogs are huge, delays are long, and the number of people in detention grows and grows.

    1. Scott Jacobs

      And if you make it so there is enough money, where does the money come from? I realize Congress is fairly addicted to deficit spending but in theory, if you increase money for one budget item you need to reduce it somewhere else.

      Then you get to play a fun game of “what do we care about the least.”

      1. B. McLeod

        Ah, but in this country, we just float more treasuries. Money is magic if you draw it from the magic well of borrowing.

  6. Hunting Guy

    Just a rant.

    I live in Tucson and physically work along the border. I could spend days telling you personal stories about border issues but this isn’t the place for it.

    I wish all the people that live back east and don’t have to deal with these issues would either shut up or fund things so improvements could be made.

    99% of the individuals commenting about this stuff haven’t got a clue – just like non-lawyers yammering about a piece of law they learned about on the internet.

      1. Hunting Guy

        Bear with me, this can get long.

        1. Put in a working guest worker program.
        2. Build the wall where it’s needed. You don’t need to do the whole border as there are many places where it is physically impossible to cross like rivers or mountains. It isn’t needed where there is no infrastructure to gain access to the interior of the U.S. like an interstate. The wall will channel crossers into areas where the border patrol can control the area. The idea is to block mass crossings where 50-100 crossers come through at once. If everyone is forced to use a ladder, the speed of the crossing is based on the slowest one to climb.
        3. Use military expertise. You don’t need the military to do it, but they have more experience with sensors but it will need to be funded. Then use quick reaction forces.
        4. Go after the spotters on the U.S. side of the border. Block their phone and radio transmissions. Again, the military has the knowledge.
        5. Send people back across the border the same day they are captured. (Yeah, there are problems with the other countries taking them, that needs to be addressed.)
        6. Get real about the numbers and skills of workers that we need to bring in.

        This doesn’t address the ones that overstayed their visas or the northern border. I’m only writing about the southern border.

        Everyone has their personal tales of robbery, murder and rape around here, no need to go into them. Yes, I have personally seen the rape trees. I will say that I have seen photos of the Mexican Army escorting cartel trucks 5 miles inside the U.S. border. I’ve met 10 men in black clothes carrying AK-47s on my property. My company had over $250K worth of material stolen. It takes 45 minutes to get law enforcement to an incident. There are bodies through the area. There are firefights almost every night. Friends have been shot at.

        Do I care about the kids? Yes, but they are a very minor part of the problem.

          1. JRP

            Hunting Guy is right, its easy to do things “for the children” when you don’t live on the border. This entire children campaign is a distraction and symptom of a bigger problem.

            I like his solutions but would focus first on where the majority of the resources go, the cartels.

            It would take alot of political will. The military will need to be actively involved and not just support in order to stop armed cartel patrols. Civilian law enforcement are not trained and equiped for even squad (small) sized combat operations.

            A hard move like that will short term ramp up the violence but its not unprecedented (Mexican- American border war 1900-1918).

            Couple this action with an serious effort to decriminalize drugs and the cartels will loose profitability and with it influence.

            Resources can then be focused on the children, other civilians, aliens, whoever, alleviating the backlog.

  7. losingtrader

    There are kids alone in caged Walmarts at this very moment. So what do we do with the children?


  8. Joseph

    Since it’s rabbit hole Tuesday, I’ll mention that I can’t help but be reminded of the backlash against child labor some decades ago that resulted in the closing of sweatshops that employed children, as a result of which some tens of thousands of children found themselves out of work and without support. Some of them probably found better days, but some of them also ended up in brothels.

    Policy is hard.

  9. Nemo

    Disclosure: For systems analysis and design, I look to Deming. Those who feel that his principles have been debunked may roll their eyes now. Added: This is long, but I can’t make assumptions on a subject that is outside the field of legal expertise, in this forum, so some explaining’s in order.

    I don’t have the expertise required to craft a solution, but I will say that the ones that are designed to maximize positive outcomes are probably doomed from the start. Minimizing bad outcomes is the better design choice. Those are premised on a neutral system with generic processes, of course, not the sort of specialized tweaking intended to benefit specific groups with specific outcomes. Every process has inputs and outputs, so design has to pay attention to outputs.

    Think bell curves. You can shift the curve equally well by increasing the top end or decreasing the bottom end – but which does more good, the increase in resoundingly positive, top-end outcomes, or an equal reduction in outright travesties? Which is overall more helpful, one more family celebrating a win so thorough that not even the arrest record still exists, or one less family mourning the unjust death of a loved one? Besides, there’s a limit to how good a criminal case’s outcome can be.

    So people with ideas that they feel really good about are something to beware, especially when they manage to inject their idea into the system. Being right is more important to such people than getting thye system to work better while being proven wrong about their cherished half-baked scheme.

    So, which is worse, all the kids in cages, or no cages and some kids die or are forced into prostitution? How many of them would have died or enslaved had none of them been captured? Is the difference between the 2nd and 3rd item so high that mass caging is better? Also note that the relevant factor isn’t how many meet bad outcomes after release, but the difference between “never caught” outcome rates vs. released after capture rates, not the rate of bad outcomes after release in isolation.

    Such things are difficult to measure at all, let alone measure accurately – and that’s ignoring the difficulties with identifying the correct things to measure, which is also significant.

    But worst of all is the way people are drawn to feeling good, be it the satisfaction of a job well done or the feeling of moral superiority that comes from righteous indignation. “Common sense” comes pre-packaged with those sort of feelings, too. It may well be a maxim, that if what you are saying or proposing is making you feel really good, you are probably wrong in some way, especially when the system or topic is complex.

    Pretty much every time someone pops off with something that could be prefaced with a declaration of it being “simple” or “easy” to fix the problem, they are announcing that they have little to add to the fix, at best. At worst, they are going to make things worse, because once they have their wonderful solution, they won’t let it go, regardless of what the better-informed say about its un-workability. Trading the thing that makes them feel good for something that makes them feel bad is, shall we say, rather distasteful, so they won’t let it go, insisting that the experts are wrong, and their masterpiece is right, because feelings. But the fools never admit that’s what they are doing it for, they will always claim legitimate-sounding reasons for justifying it. It’s unfortunate, but it’s also quite normal. Once a person buys into something, they’d rather walk through fire than admit they were wrong.

    Perhaps the most difficult, you have to be sure that you are measuring the output(s) correctly. As noted elsewhere, pointing to a decline in rulings regarding prosecutor misconduct isn’t necessarily an indicator of a decline in misconduct, and with the judicial system, that’s just a drop in the bucket. If you are measuring the wrong output, your conclusions regarding the system change is going to be flawed.

    I have also participated in system “redesigns” in the corporate world, and watched those initiatives get rolled out with great fanfare, but never get celebrated as a great success. The few times such celebrations happened, the feeling amongst my co-workers was generally that the celebration was based on revised numbers more than actual improvements. sometimes things got worse, but regardless, there’s always a shiny new scheme ahead. MBAs need projects on their resumes, so projects there will be.

    Troubleshooting isn’t something people do much, but anyone who’s ever replaced the plugs on a rough-running engine while feeling really good about how they figured it out and got it done correctly, only to turn the key to the same results, because it was actually the points, ought to know what I’m saying here. Feeling too good, too soon may feel like a reward, but what it is in actuality is a warning. Add in sayings about counting chickens and opera singers with an abundance of mass who identify as female yourselves, ’cause here I stop. Two editorial passes is probably the point of diminishing returns, anyway.



      1. Nemo

        Ed Hochuli’s got nothin’ on me when it comes to over-explaining, baby. I’m working on it, but it’s slow going, so far. A lifetime of conditioning isn’t easy to revise.

        Best wishes,


  10. LocoYokel

    Apropos of nothing, I ran across this today and it’s Tuesday talk time and I think SHG will want to steal it.

    I do not believe in potential. Potential is nothing until it actualizes. We all have the potential for great harm as well as great good. I believe in actions.

    -some random dude on the internet.

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