Mandatory Minimums

GOP Maps Out New Ways to Throw People in Federal Prison

Senators drafting massive combination bill with "Kate's Law" and "Back the Blue" mandatory minimum sentences that are expensive, unneeded.


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New legislation being drafted by House and Senate Republicans would serve essentially as a clearinghouse for their tough-on-crime, tough-on-immigration stances. It would create new mandatory minimums, prepare the feds to imprison thousands more people, find new ways to punish sanctuary cities, and collect biometric and biographic data on anybody immigration takes into custody, regardless of citizenship status.

The 333-page "Building America's Trust through Border and National Security Act of 2017" is being assembled by two Texans, Sen. John Cornyn and House Homeland Security Chairman Michael McCaul. Like omnibus legislation, it's a Frankenstein's monster of cobbled-together bills that probably couldn't get passed on their own, certainly not before Republicans controlled both Congress and the White House.

A source provided Reason a copy of the draft legislation. Among the measures currently included in the bill's text:

  • The bill includes "Kate's Law," legislation designed to increase federal mandatory minimum sentences for illegal immigrants in crime cases. It's named after Kathryn Steinle, who was killed by a felon who had been deported but returned illegally to the United States. It creates a new mandatory minimum sentences for illegal immigrants who commit crimes. An illegal alien who commits any drug trafficking or violent crime gets a five-year mandatory minimum sentence. If that person had previously been kicked out of the country before for committing a crime, the mandatory minimum sentence jumps to 15 years. In addition, those who continue to return illegally to the United States after being deported (regardless of any criminal record) face 10-year sentences if they get caught.
  • The bill authorizes the construction of "tactical infrastructure"—as in physical barriers or a "wall"—along the southwest border of the United States, and it orders the Department of Homeland Security to get such infrastructure into place by January 2021. It doesn't specifically define what the infrastructure should look like, and it doesn't appear to provide for its funding. (It does call for $33 billion to improve border surveillance.) The bill spends 60 pages authorizing a host of border patrol operations and functions.
  • Immigration and Customs Enforcement (ICE) would see a staff increase of 1,500 special agents, 500 of which would be assigned to the border. The number of ICE investigators would increase by 1,000. The bill offers a host of financial incentives and bonuses to hire and keep border patrol officers.
  • The bill's authors want to fund an increase of "not less than 50 percent per day" over the previous year in the number of prosecutions for illegal border crossings along the Mexican border, and they want to fund all the personnel needs that would entail. The legislation would provide federal grants to border states to assist local law enforcement agents if they help with border control and immigration enforcement.
  • The bill calls for a biometric data collecting system for any person entering and leaving the United States who is not a citizen, and for checking their identities against several databases. (The databases would cover not just suspected terrorists, but also everyone who is in the United States illegally, has violated the terms of their visas, or has overstayed their visas.) It calls for collecting DNA samples from any detained aliens that are subject to deportation.
  • The bill calls for the detention and removal of immigrants who are in the country illegally regardless of any involvement in any other crimes. It also authorizes Homeland Security to detain a deportable alien for removal if he has been tried for a crime, even if he hasn't been convicted. To make space for all these people, it funds an additional 10,000 beds in the federal detention system.
  • The bill denies federal grants to sanctuary cities. A rival bill introduced recently would cut Department of Justice grants to such cities. This bill goes much further and denies sanctuary cities grants unrelated to policing, such as public works grants and Community Development Block Grants. Such legislation could run afoul of the courts, which have ruled that the feds can't simply use grant funding as a bludgeon to mandate cooperation unless it's actually related to the subject of enforcement.
  • The bill also defines what a sanctuary city is, which matters if the bill passes. Sanctuary cities are conventionally known as cities that don't investigate the citizenship status of residents when they interact with officials or pass that information to ICE. Under this bill, the label would cover any city that refused to "comply" with a federal orderto detain an immigrant for deportation. Right now such "detainer orders" are legally just requests; the federal government cannot currently make cities or counties hold immigrants for them.
  • What on earth do new federal mandatory minimum sentences on people who assault or kill police officers have to do with all this immigration stuff? Nothing. Nevertheless, the bill folds in the "Back the Blue Act," which creates a host of new and completely unnecessary federal mandatory minimum sentences for anybody who kills or injures a police officer, a judge, or any local public safety officer whose agency receives any sort of federal funding. It calls for a 30-year mandatory minimum sentence for killing an officer, a 20-year minimum for assault with a deadly weapon, a 10-year minimum for assault with injuries, and a 10-year minimum for fleeing the scene. It details the possibility of the death penalty for anybody who kills a law enforcement or public safety officer.

The Hill, which also got a copy of the draft legislation, notes that Cornyn had previously supported federal legislation that actually reduced mandatory minimums and cranked back the war on drugs just a bit. Cornyn's response to The Hill was that he wasn't against all mandatory minimums.

But these new mandatory minimums are a political response to fears that are not really rooted in facts. The insistence by law enforcement interests and Trump himself that there's a "war on police" is simply untrue. To the extent that local police and public safety officers are targets of violence, states are fully capable of punishing such criminals thoroughly.

Similarly, there's very little evidence that immigrants—legal or illegal—are a pressing source of crime problems in the United States. In fact, there's plenty of evidence to the contrary.

These new mandatory minimums would accomplish two things: filling up federal prisons and eating up tax money. Families Against Mandatory Minimums (FAMM) calculated out the likely costs of both sets of new mandatory minimums, based on current trends. If every police assault with injuries resulted in a federal prison sentence, it would end up costing an additional $900 million per year to imprison just the people who would have been convicted in 2015. The mandatory minimums under Kate's Law would increase federal prison costs by $2.5 billion a year and would require more than two dozen new federal detention centers (costing more than $9 billion), based on current trends.

Trump may sell Kate's Law as a way of punishing "bad hombres," but Molly Gill, director of federal legislative affairs for FAMM, says there are any number of reasons why an immigrant might keep returning to the United States illegally that has nothing to do with committing crimes. Yet they'll still face harsh prison sentences.

"Someone might come back illegally to work, to attend a funeral, to donate an organ to a dying child, to flee war or religious persecution or a death threat, to see a sick or dying family member," Gill points out to Reason. "People do persistently come back illegally for totally benign reasons. This bill punishes them the same as a person who illegally reenters the country to commit a terrorist attack, recruit for a drug cartel, or join up with a street gang. Judges should have flexibility to tell the difference, but Kate's Law won't let them. It's going to lock up a lot of people who pose very little real threat to public safety."

Gill also doubts the idea that the law would serve as a deterrent.

"The possible threat of being caught and given a mandatory minimum sentence is unlikely to outweigh the benefits of fleeing from violence, providing for a family, or reuniting with loved ones," Gill says. "Kate's Law is a billion-dollar-a-year gamble that people coming here illegally will suddenly stop because of a mandatory sentence. Congress will lose that bet, and taxpayers will foot a big bill for it."