Bad Treatment of Children to Deter Refugees Conflicts with the Constitution’s Corruption of Blood Clause

Causing immigrant children to suffer to deter their parents does not violate the Corruption of Blood Clause, which concerns treason convictions:  “The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood . . .” (Art. III, Sec. 3, Cl. 2.).  The clause, however, yet bears on the permissibly of this administration tactic.

In political theory terms, treason, the only crime addressed specifically in the Constitution, has always been the darkest of offenses. Congress has an express right to establish its punishment – a right restricted, however, by the corruption of blood clause and a clause limiting forfeiture of property to the lifetime of the offender. Corruption of blood was the practice, inter alia in old England, of cutting off inheritance, title, and office holding rights of the offspring of the person attainted. Punishing the offspring of offenders is ancient. The Bible talks of visiting punishment down to the 4^th generation (Exodus, Numbers, Deuteronomy) but also biblical is the contrary principle that the son shall not be killed for the sins of the father (Deuteronomy, Kings, Ezekial.). 

In any event, the Constitution has it that not even disabilities arising from treason are permitted to extend to the traitor’s children. Can this be reconciled with using the harsh treatment of innocent children to deter adults from crossing the border?  (First offense unlawful entry is a misdemeanor punishable by a maximum 6 months incarceration and a $250 fine. You know the maximum punishment for treason.)

The administration has made it clear that it is deterrence that is behind its policies. In May, 2018, Attorney General Sessions said of separating children from their parents: “If you don’t like that, then don’t smuggle children over our border.” Then Chief of Staff Kelly: “a big name of the game is deterrence.” Separating children from parents “could be a tough deterrent — would be a tough deterrent.”  “If they feel there will be separation, they don’t come,” (Trump to reporters, 10/13/18). Then there were the family-disrupting Mississippi arrests of nearly 700 immigrants, with its nationally broadcast pictures of children stranded at schools. “A good deterrent,” said Trump (to reporters 8/9/19).  Ken Cuccinelli, acting director of US Citizenship and Immigration Services, said “This is a deterrent” of the renunciation of the Flores settlement with its 20 day limit on child detention.  (Interview 8/23/19Friday CNN "New Day.")  

Surely, however, there are limits to what a just state can do in the name of deterrence. From my representation of white collar offenders, I can tell you that capital punishment would deter quite a high percentage of business and securities markets fraud. For shoplifting, fifty lashes would be pretty effective. What would make for good deterrence is sometimes morally indecent. Using the suffering of children to deter adult conduct is flatly wrong as well as repugnant to the values underlying the constitutional corruption of blood clause.