My tentative sense based on media accounts, as I’ve mentioned before, is that there have been crimes — likely very serious crimes — committed at the FLDS compound. There are reports of outright forcible rapes, and it seems likely there was a good deal of statutory rape under Texas law. So it’s very likely that there are lots of criminals living there; maybe most of the adults there are criminals; the police should be ferreting out evidence of this, and prosecutors should prosecute those who appear guilty. Nor do I have any sympathy for the FLDS people’s lifestyle, which even if legal strikes me as pretty bad for the children.
But procedure matters, and it should matter when it comes to removing children from their parents and not just when it comes to criminal prosecution. There are good reasons why we don’t just swoop in and arrest everyone who lives in a community where we think crime is taking place. If we could do that, we might find it easier to, say, prosecute the Mafia or street gangs; but we don’t do that. Imagine what the nation would be like if we did.
Instead, we insist on individualized evidence of guilt. It generally takes probable cause to justify arrest, search, and pretrial detention. It takes proof beyond a reasonable doubt to justify criminal punishment. It takes proof by a preponderance of the evidence (though sometimes perhaps just probable cause) to justify some civil remedies, such as asset forfeiture (and when those standards are relaxed enough, and stop being individualized enough, people complain about them, too). The police can generally question people without any individualized suspicion — the point of the questioning is often precisely to see whether such suspicion is warranted — but for more coercive steps, something more is needed.
Now naturally when there is evidence of likely imminent danger — whether to children or to others — the procedures understandably become somewhat relaxed. The police, for instance, can search a home just with probable cause if there are exigent circumstances, with no need for a warrant. In certain situations, the police can even enter a home without probable cause, under the rubric of community caretaking (though the boundaries of that are complex and in some measure rightly controversial). Child protective services can temporarily isolate a child from parents who seem to be abusing the child, or likely to abuse the child shortly. But all that is where there is indeed evidence of likely imminent danger to particular people.
So if Texas had gone in and arrested those people as to whom there was probable cause to believe that they had committed crimes, I wouldn’t object. If Texas had gone in and seized those children as to whom there was evidence of imminent danger, I wouldn’t object. If Texas had seized some children for a few hours to conduct a physical exam, that would be closer to the border (in the absence of individualized evidence of likely harm), but I probably wouldn’t object much there, either. And certainly the evidence required wouldn’t t itself have to rise to proof beyond a reasonable doubt; that’s a standard for a criminal trial, not for a preliminary seizure because of a material risk of imminent danger.
But from all I’ve seen in press accounts, there is no serious evidence of imminent danger to children and to infants. There is some suspicion that some, many, or maybe even all their parents have committed crimes against some teenage children (including aiding other adults’ crimes, which is itself a crime). There is some evidence of imminent danger to teenagers. But that other children who live in the same community are harmed by some adults in the community isn’t by itself adequate reason, I think, to take a small child away from his or her parents, before any evidence of actual crime by the particular parents or actual danger to the particular child is provided.
Again, imagine that the police had the power to seize all the infants and toddlers in a cohesive, culturally homogeneous neighborhood because there was evidence of serious and potentially teenager-threatening crime among many adults of that neighborhood (for instance, drug dealing, drug abuse, gang crime, and the like). That would surely be a powerful tool for law enforcement, and a powerful means to get evidence. It might even help some of the infants and toddlers, if you assume a good foster care system (not because the small children are in immediate danger from the crime, which may mostly affect teenagers, but because many of their parents might indeed be bad parents).
But it would put far too much power, I think, in the government’s hands. And the traditional procedure — arrest those as to whom you have probable cause, and take away children when you have concrete evidence that there is a threat to them in particular — would have much (though not all) of the benefit without this dramatic increase in government power.
By the way, the careful reader may well have noted that there is an area in which we have had much broader government seizure authority — war, and the handling of enemy combatants. The government has vast powers over people seized in foreign theaters of combat, especially when they aren’t citizens. The government has also of course famously and controversially asserted similar powers over alleged enemy combatants who are citizens, and who are seized in the U.S. I think the power over foreign citizens, especially those seized in foreign country, is justified by tradition and necessity; I think some such power over U.S. citizens may also be proper, and historically recognized, but it too requires substantial procedural constraints.
Yet in any event surely everyone would agree that any such power over U.S. citizens in the U.S. is extraordinarily perilous. Even those who would leave the procedural rules chiefly in the federal government’s hands would, I think, agree, though they conclude that the exigencies of war and the dangers of terrorist attacks that would kill anywhere from hundreds to millions justify this risk. Protection of children from abuse is important, but I certainly hope that we won’t adapt the warfare model to it.