The Washington PostDemocracy Dies in Darkness

Opinion Letting juries decide how much families separated at the border are owed could be an expensive mistake

An asylum-seeking boy from Central America runs down a hallway at a shelter in San Diego in 2018. (Gregory Bull/AP)

Would anyone like to take a chance on how much a jury would award a migrant family whose baby or toddler or tween was taken away by the U.S. government, which had made no provision ever to reunite the child with their parents?

Any bets on how a jury would react to testimony about the trauma suffered by very small children who in some cases could not recognize their own parents after many months apart? How large a settlement a jury would support for what may plausibly be a lifetime of mental and emotional anguish and mental health treatment arising from a child wrenched physically away from her mother by strangers with no system in place to track that mother or return that child?

How about you, Sen. Tom Cotton (R-Ark.)? Or you, President Biden? Want to roll the dice?

In response to news reports that Justice Department lawyers are negotiating a settlement that might grant as much as $450,000 to hundreds of individual migrants — parents and children alike — sundered by the Trump administration’s cruel policy, Mr. Cotton denounced the payout as excessive and said it would only incentivize further illegal border crossing. Mr. Biden called the reports “garbage” and said a payoff of that size is “not going to happen,” even as Justice Department lawyers are negotiating a possible settlement.

We agree that paying individual migrants $450,000 apiece — or nearly $1 million for a single mother and her child — would be a jaw-dropping sum. It far exceeds U.S. government payouts to other grievously wronged groups, including Japanese Americans interned during World War II, or African Americans with syphilis who were deceived and left untreated by government doctors in the Tuskegee Study, in the mid-20th century. Yet given that family separation ignited universal revulsion, who can be sure that contemporary jurors wouldn’t be so similarly disgusted that they might award a tidy sum of, say, $1 million to each traumatized migrant?

We don’t know what amount is appropriate to settle lawsuits against the U.S. government filed by families of some of the roughly 5,500 children who were forcibly removed. No doubt, the Biden administration would like to avoid the political and policy risks of a large payout, but it also would rather not have to defend this singularly toxic Trump administration policy in court.

There was no mystery about the intent behind family separation. It was explicitly designed by officials frustrated at illegal border crossings to frighten migrant asylum seekers so badly that they would be deterred from illegally crossing the border. It will enter the history books as among the more callously dehumanizing acts executed by any administration on U.S. soil.

Proceeding to trial in the hundreds of lawsuits would be a massive misuse of public resources and a years-long folly. Better to settle, and soon, and by so doing acknowledge the government’s responsibility in having inflicted such pain.

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