Requiring Ankle Monitors May Offer Only Way Out of Legal Gordian Knot

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It appears that if President Donald Trump wants to adhere to his zero tolerance policy of prosecuting everyone who crosses the border illegally, but at the same time keep his promise to no longer separate parents charged with a crime from their children, he will have to incarcerate the children with the parents.

But, since under the Flores settlement he must move the children within 20 days to the least restrictive environment, it seems that he would either have to separate the children to place them in better surroundings while leaving the parents in more primitive detention facilities, or move the children along with their parents to a least restrictive environment which would probably be prohibitively expensive.

But a possible solution, and one Trump may well be forced to consider if the judge, as many expect, refuses to modify the Flores requirements, would be to permit families crossing the border illegally to be charged as is now being done, but permit the adults to be required to wear an ankle monitor rather than face expensive and largely unnecessary physical detention, suggests public interest law professor John Banzhaf, who has advocated the use of such monitors for years.

Holding entire families in physical custody so as to avoid separating parents from children costs hundreds of dollars a day, even in the most primitive conditions, and much more if the children’s right to be in the least restrictive environment means that, to avoid separations, their parents must be kept with them in this better but more expensive facility.

On the other hand, it reportedly costs only a dollar or two a day to keep track of each person required to wear an ankle monitor, yet reports indicate this simple technique provides sufficient motivation and control that over 90% of those wearing the devices do in fact show up in court when required.

“If the Flores requirements are not modified, and the administration insists on detaining parents along with the children to avoid separating families, it will run up against Flores in as little as 20 days, so the much-touted executive order will do nothing more than kick the can down the road for an additional several weeks,” says Banzhaf.

Rather than trying to find suitable quarters for some 20,000 on military bases as is now being reported, the administration should at least begin to consider expanding its existing and very successful ankle monitor program to include all the new families likely to be caught up in the new zero tolerance policy, Banzhaf argues.

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