Detention “Keeps the Families Together”: US Zero Tolerance Separations and the Slow Violence of Litigating Family Detention

Abstract

ABSTRACT In 2018, the US “zero tolerance” family separation policy drew international attention. This article builds on the scholarship of family separation and family detention to connect the dots between this high-profile state violence and the long, slow violence of litigation over detaining children. I make three interconnected arguments: One, we must understand the zero tolerance policy in relation to the ongoing legal struggle over family detention, specifically through the long line of litigation over the Flores settlement, which requires immigration agencies detaining children to meet specific standards of care. I focus on litigation of Flores between 2015 and 2018 in which both the Obama and Trump administrations defended their family detention practices by threatening separation if the courts limited their ability for prolonged detention of children and parents. Second, I argue that the development of legal discourses by the DHS, through this litigation, is a form of slow violence and that this slow violence constructs the physical violence of the zero tolerance separations. I rely on two concepts for this analysis: an expansive definition of state violence and the slow violence of legal discourse. Third, I demonstrate the utility of including legal discourse from lawsuits and policy documents in the scholarly theorization of slow violence. Taken together, the arguments I make in this article offer a nuanced argument to help us understand a cruel policy, and demonstrate how policy for separation developed in context of a broader struggle over the state power to control migrant families.