D E P A R T MEN T O F J U S T I C E | O F F IC E O F T H E I NS P E C T O R G E N E R A L
FOR IMMEDIATE RELEASE
January 13, 2021
DOJ OIG Releases Report on the Department of Justice’s Planning and Implementation of Its Zero Tolerance
Policy and Its Coordination with the Departments of Homeland Security and Health and Human Services
Department of Justice (DOJ) Inspector General Michael E. Horowitz today released a review of the
Department’s planning and implementation of its zero tolerance policy and its coordination with the
Departments of Homeland Security (DHS) and Health and Human Services (HHS). The DOJ Office of the
Inspector General (DOJ OIG) found that DOJ failed to effectively prepare for and manage the policy’s
implementation.
The Zero Tolerance Policy. The zero tolerance policy, announced by then Attorney General Jeff Sessions on
April 6, 2018, required U.S. Attorneys on the Southwest border to criminally prosecute all individuals who
were referred by DHS for illegally crossing the Southwest border, including for misdemeanor offenses. After
the zero tolerance policy was issued in April 2018, Sessions advocated for DHS to begin referring more
individuals for prosecution, including adults who entered the country illegally with children. Sessions and a
small number of other DOJ officials understood that DHS referrals of “family unit adults” to DOJ for
prosecution would result in family separations, at least temporarily. On May 4, in a change from its long-
standing practice, DHS changed its policy and began referring to DOJ for criminal prosecution adults who
were apprehended entering the country with children. The OIG found that the Office of the Attorney General
was a driving force in this DHS decision. On May 7, 2018, Sessions announced publicly that the Department
would prosecute these family unit adults and that their children would be separated from them. By the
time the practice of separating families was largely curtailed by a presidential Executive Order on June 20,
2018, over 3,000 children had been separated from their parents.
Coordination with Southwest Border U.S. Attorneys. The DOJ OIG found that, in advance of the DHS policy
change on May 4, 2018, DOJ had not effectively coordinated with the Southwest border U.S. Attorneys or
advised them that DOJ expected that family unit referrals would begin. As a result, the Southwest border U.S.
Attorneys learned of the policy change from their DHS counterparts and did not receive guidance about the change
from DOJ headquarters until after the policy change was made. Additionally, although language in the text of
the zero tolerance policy seemed to provide Southwest border U.S. Attorneys with discretion to decline
cases if prosecution was not “practicable,” the OIG found that Sessions expected them to prosecute as many
illegal reentry cases as possible, including adult family unit cases, until all available resources were
exhausted.
Family Separation and Coordination with Other Agencies. We found that Sessions’ expectations for how the
family separations process would work significantly underestimated its complexities and demonstrated a
deficient understanding of the legal requirements related to the care and custody of separated children.
(Former Attorney General Sessions did not agree to be interviewed by the OIG in connection with this
review.) Further, we found that although DOJ officials were aware in advance of a range of challenges that
could result from the increase in immigration prosecutions and from family separations under the policy,
the officials did not begin to coordinate with the Southwest border U.S. Attorney’s Offices, the U.S. Marshals
Service (USMS), HHS, or the federal courts to address many of those issues until after the policy was issued.
Impact of Policy. Although DOJ leadership told the OIG that their priority was to increase the number of
immigration-related prosecutions in order to “restore legality” to the Southwest border and decrease the
number of illegal entries into the United States, the OIG’s review ultimately determined that the
Department’s single-minded focus on increasing prosecutions came at the expense of careful and
appropriate consideration of the impact that prosecution of family unit adults and family separation would
have on children traveling with them and the government’s ability to later reunite the children with their
parents. We further determined that Department leadership did not take steps, after learning about difficulties in
identifying the location of separated children, to reconsider their prior assumptions about the ability to immediately
reunify separated families.
To assist the Department in implementing future policies, the OIG made three recommendations to the
Department and the USMS. The Department and the USMS agreed with all three of the recommendations.
Consistent with the standard practice in all of our reviews, we provided a draft of this report to the
Department on August 27, 2020, for the purpose of factual accuracy review. The Department provided
comments on September 28, 2020, and at that time, requested that the OIG interview other Department
personnel who had responsibilities related to immigration or DHS policy issues. Additionally, also consistent
with our standard practice and for the purpose of ensuring factual accuracy, in September 2020 we
contacted certain individuals who were interviewed during the review to provide them an opportunity to
review the portions of the draft report that pertained to their testimony to the OIG.
Report: Today’s report and an interactive timeline of events are available on the OIG’s website at the
following link: https://oig.justice.gov/reports/review-department-justices-planning-and-implementation-its-
zero-tolerance-policy-and-its.
Video: To accompany today’s report, the OIG has released a two-minute video of the Inspector General
discussing the report’s findings. The video and a downloadable transcript are available at the following link:
https://oig.justice.gov/news/multimedia/video/message-inspector-general-review-department-justices-
planning-and.
###
