When Cruelty Is the Point: Family Separation as Unconstitutional Torture Jenny-Brooke Condon 1 The Trump Administration separated migrant children from their parents at the southern U.S. border in 2017 and 2018 knowing and intending that the fami- lies would suffer grievous harm. The President and other Administration offi- cials candidly acknowledged that they intended the threat of separation under the “zero tolerance” policy to deter migration. In other words, the cruelty of separation was the very point of the plan. In June 2018, a district court con- cluded that the policy violated parents’ due process right to family unity and association, enjoined the practice, and directed the reunification of families. That framing of the constitutional violation, however, failed to fully capture the scope of the government’s abuse of power and the depth of the harm that family separation inflicted upon parents and children. This Article draws upon Eighth Amendment and Due Process doctrine to articulate why the policy’s intentional cruelty and infliction of grievous harm constituted unconstitutional torture. This understanding of family separation as torture recognizes the intentional violence and abuse of power at the core of the policy and sharpens the claim to broad and meaningful remedies and accounta- bility. Emphasizing the defining cruelty of family separation resists its minimiza- tion within legal discourse and secures against similar abuses of migrants in the future. T ABLE OF CONTENTS INTRODUCTION .................................................. 38 I. THE MOTIVE AND HARM OF F AMILY SEPARATION .......... 43 A. Cruelty as Deterrence ............................... 43 B. Warnings Ignored ................................... 47 C. The Grave Harm Inflicted ............................ 50 II. UNPACKING THE CONSTITUTIONAL BASIS FOR ENJOINING F AMILY SEPARATION ..................................... 54 A. Ms. L.’s Finding of Unconstitutionality ................ 54 B. Family Liberty Based upon Autonomy and Privacy Norms .............................................. 56 C. Family Unity as Freedom from Destruction of the Family .............................................. 60 III. F AMILY SEPARATION AS T ORTURE ......................... 62 A. Torture under International and Statutory Law ........ 62 B. Anti-Torture Norms under the U.S. Constitution ........ 65 1 Professor of Law, Seton Hall Law School. Thank you to Baher Azmy, Lori Nessel, Farrin Anello and participants in a Seton Hall Law School faculty scholarship presentation for helpful comments on an earlier version of this Article. Journalist Adam Serwer’s October 3, 2018 Atlantic article, The Cruelty Is the Point, inspires this Article’s title.
When Cruelty Is the Point: Family Separation as Unconstitutional Torture
Jul 09, 2023
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