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A few months ago, Attorney General Jeff Sessions implemented a "zero tolerance policy", requiring the Department of Justice to criminally prosecute every single person caught crossing the border illegally. This has resulted in large numbers of children being separated from their parents. So President Trump passed an executive order intended to end the family separation issue. Here is what it says:

The Secretary of Homeland Security (Secretary), shall, to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members.

So it orders people awaiting criminimal prosecution for illegal entry to be held by the Department of Homeland Security (DHS). This is in contrast to the standard practice before this, which was to keep people awaiting criminal prosecution for illegal entry in federal jail until their trial.

I’m wondering about how this will affect sentencing. Before the executive order, judges would sentence most people convicted of illegal entry to “time served”, i.e. their sentence would be the jail time they already served before their trial, rather than an additional sentence after the trial. But my question is, how does this work if a person is kept in DHS custody rather than federal jail while awaiting criminal prosecution? Can time spent in that sort of DHS custody count as “time served” for sentencing purposes?

The reason I ask is that if judges don’t have the “time served” option, then they may opt to sentence people to federal prison, where they’ll be away from their kids.

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  • Can you provide a source for the "standard practice" (eg placement in federal jail prior to trial)? And more significantly if that "standard practice" was in place on 20 Jun 2018. (prior to the EO). Refer to: usatoday.com/story/news/2018/06/21/… , specifically the Torres-Perdomo case (arrested 8/16, plead guilty 8/18, sentenced to "time served" +10$. It seems like your question is: Was this man in detention or federal jail for ~48 hours)
    – BobE
    Jun 27, 2018 at 16:09
  • @BobE See here: “But migrants who’ve been referred for criminal prosecution get sent to a federal jail and brought before a federal judge a few weeks later to see if they’ll get prison time.“ vox.com/2018/6/11/17443198/…
    – Keshav Srinivasan
    Jun 27, 2018 at 16:13
  • Agreed, there seems to be a conflict (or lack of clarity) between a federal jail and a detention facility. That's why your question is pertinent and timely. In the Torres case (which may be peculiar), I'd be surprised that BCP could get him processed that fast to be placed in "federal jail". Regardless, from a human stand point, deprivation of liberty is the same whether in a jail or in detention. At this point it's not clear if the judges using "time served" are making a distinction between the two.
    – BobE
    Jun 27, 2018 at 17:06

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Yes. This is treated as time served as several media accounts of sentencing hearings in these cases have demonstrated. See, e.g., this account in The Atlantic magazine, and this one in the newspaper USA Today, and this one in the newspaper the Houston Chronicle. I also saw a similar account in the L.A. Times but can't provide a link because my non-subscription access limit has been exceeded.

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