When I heard of this argument detailed below by Sarah Fabian I posted on social media that, “Human first. Lawyer second. Not sure she lived up to the potential of either.” In response, another lawyer asked, “Did we not represent rapists?”
My answer is simply that defending rapists is not the same as saying children do not need soap and toothbrushes. But first here is the story of what Sarah Fabian said.
Sarah Fabian is the career lawyer from Department of Justice’s Office of Immigration Litigation who represented the Trump administration argued in the Ninth Circuit Court of Appeals that the federal government wasn’t legally required to provide soap and toothbrushes to detained migrant children in some conditions. Fabian argued that forcing children to sleep on cold concrete floors in cells is both “safe and sanitary.” Fabian was challenging an order by U.S. District Judge Gee in Los Angeles, who appointed an independent monitor to ensure that the federal government complies with the Flores settlement and specifically required such items as soap and toothbrushes. Fabian argued that such requirements are not detailed in the original settlement.
It should also be mentioned that the federal government has stopped English language classes, recreational programs like soccer games and legal aid for locked-up children.
The judges were openly hostile, incredulous that the government would argue that a facility is “safe and sanitary” even if the minors confined there have no soap, toothbrushes, or dark places to sleep. “I find that inconceivable that the government would say that that is safe and sanitary,” said Judge William Fletcher. Likewise, Judge Marsha Berzon asked Fabian: “You’re really going to stand up and tell us that being able to sleep isn’t a question of ‘safe and sanitary’ conditions?” You can’t be sanitary or safe as a human being if you can’t sleep.” Judge A. Wallace Tashima (who as a child in World War II was confined to an internment camp with other Japanese Americans) said that such items are “within everybody’s common understanding that if you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket, it’s not safe and sanitary. Wouldn’t everybody agree to that?” he asked. “Do you agree to that?” Fabian: “Well … maybe.”
The judges ultimately suggested that the United States should consider whether it wanted to maintain the appeal—a signal that litigants ignore at their grave peril.
Various news sources Fabian was arguing that toiletries and related items or services might not be required to meet a condition of “safe and sanitary” in all circumstances, such as if a detainee were only staying in a facility for a matter of hours. In appealing a 2017 ruling that found the government violated the 1997 consent decree known as the Flores Settlement Agreement, Fabian argued that the decree does not specifically enumerate those items as mandatory for detained (AKA imprisoned) children. In response, Vice President Mike Pence has also weighed in, telling CNN on Sunday that “of course” detained children should have access to soap and toothbrushes. Last year Fabian defended the administration’s policy of separating migrant children from their parents by arguing it had occurred by necessity and “not for the purpose of deterrence.”
As reported by news sources, the government’s “safe and sanitary” argument did not arise from a new case generated by Trump-administration policies. It arose in 1985, during the Reagan administration, when a 15-year-old Salvadoran child named Jenny Lisette Flores was detained after entering the United States illegally, hoping to escape her country’s vicious civil war. Flores spent two months at a facility in California, confined with adult strangers in poor conditions and strip-searched regularly. In July 1985, she and three other minors brought a class action against what was then called the Immigration and Naturalization Service, challenging its policies for the care and confinement of minors.
In 1997, after a dozen years of litigation, the parties settled the lawsuit in what became known as the “Flores Agreement.” The Flores Agreement requires, among other things, that the government hold minors in facilities that are “safe and sanitary” and that they be released from confinement without delay whenever possible.
During the Trump administration, United States District Judge Dolly Gee found that Customs and Border Protection (CBP) failed to provide adequate food and water to minors, that it did not maintain the facilities at adequate temperatures, and that it deprived the minors of sleep by confining them on concrete floors under bright lights. Gee also found that CBP’s obligation to provide “safe and sanitary” conditions included providing soap, dry towels, showers, toothbrushes, and dry clothes. Gee ultimately ordered CBP to appoint a monitor to bring its facilities into compliance with the Flores Agreement.
With this background, it is true to say that when I was a public defender, I defended all types of criminal cases, including homicides and sexual assaults.
However, I continue to maintain what Sarah Fabian is not comparable to what I did as a public defender.
The distinction is drawing a line between what a prosecutor does and what a defense attorney does. As Justice Frankfurter once said, “In law, as in life, lines have to be drawn. But the fact that a line has to be drawn somewhere does not justify its being drawn anywhere. Pearce v. Commissioner of Internal Revenue, 315 U.S. 543, 558, 62 S. Ct. 754, 761, 86 L. Ed. 1016 (1942) (Frankfurter, J., dissenting). I draw the line where the government of the United States says children should not have soap or a lawyer to protect them. Judge Harold R. Medina said, “The more odious and despicable the crime, the more important it is that justice be done.” XII, Lloyd Paul Stryker, The Art of Advocacy (1954).
The line to be drawn here is the difference between a prosecutor and a defense attorney. Justice Byron White understood that line and drew it as follows:
Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course.
Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth. United States vs. Wade, 388 U.S. 218 (1967)
Thus a prosecutor “is an administrator of justice.” As an administrator of justice, a prosecutor has a duty not merely to convict.”
In defending even people who may eventually be found guilty, I acted for justice. Justice is not served when a representative of the United States government in the department of Justice acts to obscure the ascertainment of these true facts: that if you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket, it’s not safe and sanitary.