That's an excellent question... Nice to see some intelligence on this discussion for a change. I read your question last night, but then it was time to watch/celebrate the Golden State Warriors taking the NBA title again (who can have an intelligent conversation at a time like that?) ;)

If I got this idea from a single source it would be easy to just link it, but I didn't. I arrived at this conclusion through my own lay understanding of the law. So, now (with a slight hang over) I will attempt to explain... It's a complicated bit of law so bear with me...

First, let me say that I spent a good deal of time trying to find the law that says it IS a crime to cross the border and it's weirdly difficult to track that down, so I can see how some in Congress are questioning that assumption. But whether or not "improper entry" is a crime or a civil infraction or neither has no bearing on my earlier statement which is based on a legal concept called "Defense of Infancy".

This concept originally appeared in English Common Law in a document called doli incapax. Basically, it's the argument that children who are not old enough to understand the crime the are being charged with can't be found guilty of committing it. So now you know where I'm going with this.

This concept has been adapted by the laws of 80 countries including the U.S. where it finds a basis in the 8th Amendment, which itself is an almost exact copy of a provision in the English Bill of Rights of 1689.

"Excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
- English Bill of Rights 1689


"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted"
- U.S. Bill of Rights 1791

So this is vague... But the Constitution, following the tradition of English Common Law, is vague by design so as to allow more discretion on the part of the courts where legal precedents are set, so let's get to that.

Supreme Court of the United States of America : 2004
Roper v. Simmons (No. 03-633)
https://www.law.cornell.edu/supct/cert/03-633#summary

Generally, this was a case where a 17 year old in Missouri murdered someone and was therefore sentenced to death. The defense appealed to the Supreme Court with the argument that the previous rulings were a violation of the 8th Amendment, calling the execution of a person who was 17 years old when the crime was committed "cruel and unusual punishment"... The Supreme Court upheld the argument in 2005.

Now, when I read this I was more inclined to disagree, thinking that by 17 you ought to know that murdering someone is wrong, but the case nevertheless makes my point, that a vague concept like the Defense of Infancy is made relevant by the 8th Amendment and affirmed by the Supreme Court, thereby creating a precedent.

If the Defense of Infancy can let a 17-year old literally get away with murder, I don't see any reason why it couldn't save someone from being punished for staying with his mom when he was four. Now, there's another concept that really needs to be introduced here called a "national consensus" where the Supreme Court will draw on a multitude of precedents set by lower court decisions. The purpose of the national consensus is keep the laws relevant to contemporary views. The Supreme Court used the national consensus to confirm whether or not the punishment is indeed "cruel and unusual".

There is another legal concept called "Minimum Age of Criminal Liability" which codifies the Defense of Infancy with a straight forward law and an specified age... in most countries in the world. The UN passed a resolution that all member nations follow this rule and every nation agreed except two... Somalia and the U.S. However, 13 states HAVE established minimum ages, while the remaining 37 default to the national law, which I have seen expressed as age 11, but I have yet to find the law that actually confirms that. So, it seems to me that any defense of infancy will have to rely on national consensus.

Of course the national consensus would be a stronger argument if there were more court decisions specifically on whether or not punishing someone for crossing the border as a child is cruel and unusual, but where we have plenty of 17-year old murders over the years, the act of prosecuting people for crossing a border with their parents when they were too young to even have a choice is really new... as in post 9/11 when the Bush administration turned up the juice on prosecuting immigrants. It's no wonder Obama, who has the humanity to recognize that punishing people for things they really had no control over, pushed Congress to legislate. Neither is it a surprise that the less humane Republicans controlling Congress at the time refused. And that's why Obama wrote the executive order we know as DACA, to delay the inhumane prosecution of childhood arrivals until Congress can pull their thumbs out of their assholes.

So as you can see, this is not a simple yes/no thing. Given the microscopic attention span of most posters here (the one's that have already stopped reading this) I found there was really no way of injecting all this into the discussion without the stupid-simple (and questionable) statement I made earlier... I was hoping someone would challenge me so I had a better excuse to explain the complexity. So thank you for that.

Hi Morgan... I'm glad you posted this. It's a huge issue.

Actually, if you look at our history, you will find a LOT of atrocities. America herself has always been a struggle between good and evil. You and I have had the good fortune to live in America during the hegemony because that's when a nation has so many advantages that even the evil can be well-behaved and still get what they want. But we are entering a new era where we are loosing that hegemonic advantage and good behavior isn't working so well for the evil anymore.

Trump represents that evil. He wants to ditch a lot of the global institutions set up by the American hegemony and revert to more defiant policies. To secure his position in our democracy he is taking the fascist route by tapping into the undercurrents of bigotry and extreme hatred. Immigration policies have always been a favorite campaign for fascist upstarts.

As I'm sure you've noticed, OPP has it's own fair share of posters who love to hate immigrants. That's why responses like no-pro when he said immigrants who commit crimes should be punished THEN deported tend to focus more on punishing them than solving any problems.

But I gotta say... this policy of ripping families apart goes beyond what I would think even the most deplorable Americans would accept. I mean it happened under Obama, but it was never a policy! In fact, that's why he set up the DACA policy to try and keep immigrant families together. But Trump is making the separation of children from their parents a policy! Even after it was discovered that his administration lost 1500 children!

Another stat that bothers me, is that since Trump came in, deportations have actually decreased while arrests have increased. That means they are filling prisons with people. And they are privatized prisons, with a profit motive and NO constitutional obligations. I don't know if you are following the prison-industrial complex but if you are then you know... those immigrants are being used as slaves.

"It's worth isolating this comment from the rest of your post because it shows how the value of a mother-child bond is universal. I think EVERYONE will agree with this part of your post... well, except for Trump and Sessions, obviously."

Then you will agree that it is wrong to separate criminal mothers from their children. After all, the bond is universal, so if the mother is a crack head murderess, then she should not be separated from her child. Children of US citizen criminals are separated from their parents every day. Where is your outrage when that happens? Oh, that's right, they're criminals of the wrong nationality.

Yes I have been following, and some of the specials I've also seen on TV is hard to imagine and it does have exactly to do with the privatization of our prison systems. It is incomprehensible why we continue to privatize in all different areas that were managed by the government only to pay more of our tax money to private enterprises? This from the military contractors to prisons, they want to continue on this track from DOT to education. To do this with education will cause a movement to the greatest deficit in investing in our own country we will have.

These actions for me represent the continued stride towards a polarization of social classes and I agree, working towards fascism. look how the majority of public views have been ignored since the reign of the GOP in Congress and local republic municipalities.

Look also under this administration how our protections have been eroded away. From the EPA, banking, employment, even with citizens simply objecting and protesting, they are more about taking away our rights than anything else, yet the blind followers just refuse to see. It's like the jews being lined up in front of the gas chamber, thanking a Nazi for giving them a bar of soap...LOL

PS, according to some here I'm just talking to myself on here...LOL