(THREAD) Donald Trump and Secretary Nielsen are LYING about how our justice system works to justify tearing impoverished kids from their parents at the border. In this thread, a longtime criminal attorney explains how the system REALLY works. I hope you'll read and retweet this. 
1/ The overwhelming majority of criminal cases in America involve accusations of non-violent acts (including allegations of property, drug, testimonial, and so-called "status" offenses). One of the *least serious* criminal allegations in the justice system is "criminal trespass."
2/ In America, someone is not a "criminal" simply because the government has accused them of a criminal offense. Convictions require a trial or plea. This is true whether or not the offense is non-violent. A person is *only* a "criminal" if they have been convicted of an offense.
3/ In America, a *clear* majority of those arrested on allegations of criminal misconduct are *not* incarcerated while awaiting trial, plea, or a dropped charge.
An *overwhelming* majority of those accused of *non-violent* offenses are *not* incarcerated in this pre-trial phase.
An *overwhelming* majority of those accused of *non-violent* offenses are *not* incarcerated in this pre-trial phase.
4/ Even when a judge is going to set a pretrial bail that isn't "personal recognizance"—meaning, is going to require that the defendant pay a sum of money to avoid being incarcerated pretrial—he or she is supposed to take into account the ability of the defendant to "make bail."
5/ The four types of defendant *least* likely to be incarcerated pretrial are: a) those accused of non-violent offenses, b) those with no prior criminal record, c) those without the ability to pay bail, and d) those who have familial responsibilities—particularly minor children.
6/ Illegal entry to America was for many years a civil—i.e. non-criminal—infraction, meaning even if you were found after a hearing to have illegally entered the country, you wouldn't be considered a "criminal." You would have committed a non-violent, non-criminal status offense.
7/ The Trump Administration has decided—they have *chosen*—to treat illegal entry as a "crime." This means it is now on par with "criminal trespass"—one of the least serious non-violent offenses in the United States, and one for which almost no one would be held on bail pretrial.
8/ In the *rare* instances our justice system separates a child from his/her parents, a) the government has presented evidence of abuse or neglect, and/or b) the allegation against the parent is so serious pretrial incarceration is required. The government then seeks next-of-kin.
9/ With this in mind, understand that everything Trump and Nielsen have said on their policy of ripping impoverished kids from their parents is a lie—as is every attempt they and their allies in far-right media have made to position this policy as "typical" in our justice system.
10/ Those who enter America without documentation aren't "criminals"—they have undergone *none* of the processes necessary to make that determination. A hearing may determine they're validly seeking asylum or for some other reason cannot be said to have entered America illegally.
11/ Moreover, the allegation of illegal entry—*even if* regarded as an allegation of criminal conduct—is an allegation of *non-violent* criminal conduct, and an allegation made against someone with no known criminal record, meaning that normally pretrial detention wouldn't occur.
12/ Pretrial detention obviously *will* occur in most illegal entry cases, as the nature of the allegation and non-citizen status of the individual accused is such that most judges will fear the defendant will flee pre-hearing. *None of that* militates for separation of families.
13/ If Trump and Nielsen insist on analogizing border crossings to domestic criminal cases, here's the only possible analogy: in the case of a border crossing, a person with no prior record is charged with (but hasn't been proven to have committed) a non-violent criminal offense.
14/ However, because in *this* situation the government hasn't proven abuse or neglect; and the government cannot find next-of-kin; and the border-crosser's detention is mandated by the circumstances but not by violent proclivity or prior record, you would NEVER take their child.
15/ Indeed, not only would *all* of those facts militate *against* separating a child from their parent(s), but *also* the *additional* fact that the child has just undergone a traumatic experience—a long migration—and is in a nation where they have no other known family members.
16/ In the *very* rare cases in which a criminal allegation—and again, it would almost *always* require a prior record, charges of violence, and/or a showing of abuse or neglect—leads to a parent/child separation, the government would *never* take the child into secure detention.
17/ Moreover, if, in our domestic justice system, the government were to ever say publicly—let alone make it a national policy—to separate a child from his or her parent(s) *simply as a punishment of the parent for other conduct*, it would render that separation unconstitutional.
18/ So in the view of any attorney who has practiced in the American criminal justice system—and who isn't blinded by partisan rancor—the actions now being taken by Trump and Nielsen are an abomination and *can't* be construed, in any way at all, as a "typical" government action.
19/ When attorneys like Laura Ingraham—acting as right-wing apologists for an inhumane, un-American justice policy—deliberately *pretend* that individuals in pretrial status can be called "criminals" and that non-violent offenders are usually held pretrial, they disgrace the bar.
20/ Americans who care about the rule of law should know that every single tradition and practice in American law would dictate that an individual accused of a nonviolent offense who is in pretrial status should *never* be separated from their kid(s)—*especially* not maliciously.
CONCLUSION/ Attorneys take an oath to uphold the Constitution; we cannot publicly distort the rule of law. We are *not* permitted to deliberately mislead the public about basic legal process. Giuliani, Ingraham, and other Trump apologists are doing so daily and it must stop. /end
NOTE/ By comparison, a thing that is *very common* in our justice system is that a defendant (see: Paul Manafort) charged with major federal felonies who—after being released on bail—repeatedly violates bail conditions and is then charged with new felonies *will* be incarcerated.
NOTE2/ My list of nonviolent offense types was—as I noted—non-exhaustive. Other such offenses include many driving offenses and certain crimes of moral turpitude (e.g., adultery is a crime in some jurisdictions). As I noted, "criminal trespass" is less serious than most of these.
NOTE3/ I've worked many criminal trespass cases, and can say that even within that fairly minor charge are levels of seriousness—based on the facts of the case—that have to do with the *reason* for the trespass.
"To find a job and feed my children" is the *best reason there is*.
"To find a job and feed my children" is the *best reason there is*.
NOTE4/ My brothers/sisters at the bar—most particularly, current public defenders; I worked for for 4 public defenders in 3 jurisdictions over 9 years—are rightly noting that domestically our bail system is broken, unfairly targets the poor, and often separates families. I agree.
NOTE5/ If you follow this feed and/or my writings elsewhere, you'll know I've been on about bail reform for many many years. If you're interested in more information about how our current system fails Americans, please see my 2013 article in BOSTON REVIEW: bostonreview.net/us/seth-abrams…
