Many Trump administration officials — the President himself! — greeted outrage against their family separation and child imprisonment policy with (perhaps feigned) exasperation and resignation. It’s not that they want to be so cruel, they just have no choice. It’s the law.
“If you are smuggling a child then we will prosecute you, and that child will be separated from you as required by law,” argued Attorney General Jeff Sessions. Trump first painted it as an all-or-nothing situation: “We can either release all illegal immigrant families and minors who show up at the border from Central America, or we can arrest the adults for the federal crime of illegal entry.” Even after ending the separation policy, the only alternative that the administration is willing to contemplate is family incarceration, which seems like a very minimal improvement to those whose main objection is the jailing of children. (The children will, after all, still be in jail.)
There are, however, alternatives to incarceration, and it is worth thinking incredibly broadly about what those might be. One of the most recommended alternatives in the specific situation of undocumented immigrants — the use of location-monitoring ankle bracelets — today seems both imminently practical and humane but entered into American jurisprudence via Spider-Man. In 1977, Judge Jack Love (a very Dick Tracy-esque name) was a New Mexico jurist reluctant to jail people for minor offenses. When he read a strip in which Spidey kept track of Kingpin with a radio device, Love saw a solution. He got a local electronics manufacturer to build a prototype and wore the device himself for three weeks to test it.
Indeed, though genre fiction’s explorations of cruel punishments seem to get more attention (see articles about boundary-pushing/stomach-turning science fiction prisons here and here and here), the more humane distribution of justice has been a perennial preoccupation of futurists and storytellers, from Thomas More to Ursula K. LeGuin, A Clockwork Orange to Minority Report.
Technology is often really the only thing that puts these sorts of alternative punishments in the realm of science fiction. What differentiates Minority Report’s incapacitated pre-criminals and the brain-washed hooligans of Clockwork Orange from hundreds of other real-world attempts to either pacify or forcibly re-educate prisoners is mainly the fact that the methods in those movies mostly work. And banishment, whether is it is to Australia or the moon, is a penalty as old as having a community to belong to. The ingenious monitoring devices on Jack Vance’s Emphyrio consist of personalized metal rods that are magnetized every time any citizen commits an infraction, until the rod “pulls down a signal” and the “offender must be rehabilitated” — essentially a very cumbersome version of the driver’s license points system.
To seem truly strange to American or Western sensibilities, alternatives to incarceration have to be more than just a variation on sentencing by a judge. Rather, the system itself has to look different. Take the utopia of Woman on the Edge of Time. Judges are are community members — they’re not even judges, they’re referees. The emphasis isn’t on vengeance, but atonement. “You work out a sentence” together with the community, a notion which still sounds radical almost 50 years later, unlike the sentences themselves (“Sheepherding…Space service.”). Then again, in Marge Piercy’s book, such generosity of spirit is leavened with the knowledge that there are no second chances. “The second time someone uses violence, we give up. We don't want to watch each other or to imprison each other. We aren't willing to live with people who choose to use violence. We execute them."
Writers from marginalized communities seem to show more willingness to tinker with the very foundations of “justice” as modern Western culture defines it, and that make sense — a true minority report. They are the ones who suffer the most under the current system. As the editors of Octavia’s Brood: Science Fiction Stories from Social Justice Movements put it, “all organizing is science fiction. When we talk about a world without prisons; a world without police violence; a world where everyone has food, clothing, shelter, quality education; a world free of white supremacy, patriarchy, capitalism, heterosexism; we are talking about a world that doesn’t currently exist.”
The stories in Octavia’s Brood (named for Octavia Butler) highlight collectivist approaches that challenge not just what justice is but what can be considered a crime: a mystical river that washes away gentrifiers, for instance. When you think about justice on a large enough scale, individual punishment might matter less than finding the truly guilty. When history looks back on this period of time, what actions will leave the most lasting stain? Those of the migrants, or those of the people who imprisoned them?
It says a lot about the impoverished imagination of those who are currently in charge of our society that those once-science-fictional ankle bracelets are the most frequently mentioned alternative to jails, actually. Even less expensive and bureaucracy-heavy solutions exist, but they would demand truly radical cognitive leaps, like thinking of those who come to this country as something other than criminals to begin with.
Last week, the images of separated children huddled under Mylar blankets were at once futuristic and primitive: a space-age fabric in the context of barbarism. When Sessions invoked the Bible to justify the policy, he unwittingly exposed its distance from civilized norms — not because of his appeal to a mythological deity, but because he suggested that laws are somehow above people. The most civilized approaches to law enforcement put people first. Imagine that.