President Joe Biden‘s acting attorney general, Monty Wilkinson, officially rescinded the Trump administration’s “zero tolerance” program, which led to the separation of thousands of migrant families. The move officially removes the policy from the Justice Department’s guidance to federal prosecutors and instructs prosecutors to use discretion when prosecuting misdemeanor border offenses. The Former President Donald Trump ended the practice of separating migrant children when their parents were prosecuted in an executive order in June 2018, but the policy of zero tolerance, which directs U.S. attorneys to prosecute anyone who crosses the border illegally, even for misdemeanors, was never officially rescinded. Misdemeanor offenses for crossing the border without proper documentation will now be prosecuted with discretion. Although immigrants can still be deported if they do not have documents or protections to stay in the U.S., they typically are not charged in federal court and separated from their children.
Before the zero tolerance policy, more serious border offenses, including violent offenses or illegal re-entry at the border, were usually charged in federal court. Rather than tell prosecutors never to prosecute misdemeanors, Wilkinson’s letter advises them to use discretion rather than a zero-tolerance approach. Wilkinson said the Justice Department’s Principles of Federal Prosecution tell prosecutors that they should “take into account other individualized factors, including personal circumstances and criminal history, the seriousness of the offense, and the probable sentence or other consequences that would result from a conviction.” The new policy should reduce the number of unnecessary family separations at the border.