In April 2018, then-Attorney General Jeff Sessions implemented a "zero tolerance policy", requiring the Department of Justice to criminally prosecute every single person caught crossing the border illegally. This is in contrast to the policy of previous Administrations, under which only some people caught crossing the border illegally would be criminally prosecuted, and the rest just went through civil deportation proceedings. This resulted in large numbers of children being separated from their parents. The family separations were eventually ended (though not all separated families were reunited). But my question is, is the zero tolerance policy still in effect?

In June 2018, then-Customs and Border Protection (CBP) Commissioner Kevin McAleenan announced that CBP was no longer going to make criminal referrals of people caught crossing the border illegally if they come along with their family. And then-White House Press Secretary Sarah-Huckabee Sanders said this was just a temporary halt.

But how does the situation stand today? Is the DOJ still criminally prosecuting every single person caught crossing the border illegally, or only some people caught crossing the border illegally like previous Administrations did?

  • Did they ever actually "criminally prosecuting every single person caught crossing the border illegally"? I know prosecutions went up in 2018, but that's not the same thing as 100% prosecutions...
    – Fizz
    Jan 26, 2020 at 17:32
  • @Fizz That’s what the zero tolerance policy was about. It was about removing prosecutorial discretion and having every case be prosecuted. Jan 26, 2020 at 17:42

1 Answer 1


A Lawfare post from July says

Family separation has continued despite the end of a formal zero-tolerance policy.

But it doesn't say when it was formally dropped. It also says that it was probably never really in effect for any appreciable period of time:

The number of prosecutions are still a relatively small proportion of total apprehensions per year by Customs and Border Protection (CBP). This was true even under Sessions’s zero-tolerance policy: Even a generous estimate still puts prosecutions at only 32 percent of total apprehensions of adults outside a port of entry.

And a VOA article from October

Newly released figures show more than 25,000 people were charged with illegal re-entry into the U.S. in fiscal year 2019, an 8.5 percent increase over the same period the previous year. Nearly 90,000 defendants were charged with illegal entry in 2019, a more than 18 percent jump over the year before. And nearly 4,300 were charged with migrant smuggling in 2019, a 15.4 percent increase from the prior fiscal year.

Despite the increases, the numbers, all record highs, represent a small fragment of the nearly 1 million unauthorized border crossings in fiscal year 2019, which started in October 2018.

Presumably some of those are children, so they can't be charged, but still... even South Americans probably don't come with 8 children each. And yeah, those nearly 1 million are actually/mostly aphrensions.

In FY19, a total of 851,508 individuals were apprehended between ports of entry on our Southwest Border.

(The VOA 1 million figure is a bit inflated by also including the "126,001 people presenting themselves at ports of entry on the Southwest Border [who] were deemed inadmissible." But that's not a lot of padding...)

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