“Buried in the news cycle around Biden’s gesture, however, is that the updated guidance does not, in fact, stop family separations. It just tells the state to use discretion.
Prosecutors should not rule out formally charging misdemeanor border crossers but instead “take into account other individualized factors,” wrote Wilkinson, “including personal circumstances and criminal history, the seriousness of the offense, and the probable sentence or other consequences that would result from a conviction.”
It’s certainly an upgrade from a zero tolerance approach, which, true to its name, was without any nuance or mercy. But it still gives the federal government wide latitude in deciding which mothers and fathers get to stay with their children, and expressly does not eliminate the possibility that they could be separated—perhaps forever—simply for crossing a literal line in the sand.”