Acting Attorney General Rescinds Trump Administration’s “Zero Tolerance” Policy

On April 6, 2018, then Attorney General Jeff Sessions issued a memorandum directing all U.S. Attorney’s Offices along the Southwest Border (districts in California, Arizona, New Mexico, and Texas) to immediately adopt a “zero tolerance” policy and prosecute all violations of 8 U.S.C. § 1325(a), which prohibits illegal entry or attempted illegal entry to the United States.

This policy quickly became controversial as it led to thousands of children being separated from their parents at the border. Adults would be prosecuted for illegal entry, while their children would be taken into federal custody. A report released last month by the Department of Justice (DOJ), Office of the Inspector General, found that the DOJ never had a clear plan or resources allocated for reuniting parents with their children. This led to many children being permanently separated from their parents.

On January 26, 2021, acting Attorney General Monty Wilkinson issued a memorandum rescinding the “Zero Tolerance Policy”.  Mr. Wilkinson found the policy to be “inconsistent with the Department’s longstanding principle that [prosecutors] exercise judgment and make individualized assessments in criminal cases.” And that requiring a prosecutor to charge every case referred for prosecution “without regard for individual circumstances” is “inconsistent with [the Department’s] principles.”


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