Kate’s Law: A Waste of Federal Resources

The House of Representatives will vote on a bill this week titled “Kate’s Law” (H.R. 3004). While it is nominally an “immigration” bill, its principal aim relates to criminal justice—namely, an increase in the maximum sentences for immigrants who reenter the country illegally after a deportation. The bill is a waste of federal resources. It would likely balloon America’s population of nonviolent prisoners, while not protecting Americans against serious criminals.

Kate’s Law Would Not Have Helped Kate

The bill’s namesake is Kate Steinle, a 32-year-old medical sales rep killed in San Francisco in 2015. Her killer was Juan Francisco Lopez-Sanchez, who was in the country without status after five removals. Proponents of this bill—providing lengthier prison sentences for people who reenter the country after a removal—believe that this would have somehow helped Kate Steinle. This assertion cannot withstand a moment’s contact with the facts of the case, which I have previously laid out in detail here.

After his last three apprehensions, the government prosecuted Lopez-Sanchez for felony illegal reentry. He served 15 years in federal prison in three five-year increments. None of the facts of this case would have changed if he had served those 15 years consecutively. Indeed, because Lopez-Sanchez never actually made it across the border without being caught since 1997, the only reason that he ended up in San Francisco is because the Bureau of Prisons inexplicably decided to ignore a request for transfer from Immigration and Customs Enforcement (ICE). Instead, it shipped him to the city based on a 20-year-old marijuana charge—an offense that no longer even exists in the city. Thus, deterrence against reentry has no relevance whatsoever to this case.

The Provisions of Kate’s Law

This legislation introduced by House Judiciary Committee Chairman Bob Goodlatte (R-VA) should not be confused with other bills of the same name introduced in the House and the Senate by Rep. Steve King (R-IA) and Sen. Ted Cruz (R-TX), respectively. The entire purpose of the prior iterations of “Kate’s Law” was to create mandatory minimum sentences for crossing the border illegally after a removal. Indeed, the alternate title for the bills was the “Establishing Mandatory Minimums for Illegal Reentry Act.” This new Kate’s Law, however, mercifully contains no mandatory minimum sentences—a sign that criminal justice reformers’ criticisms of them (including Cato’s) have started to penetrate the mainstream.

But the purpose of the law in the broader sense remains: trying to lock up more immigrants for longer periods. Most of the actual text comes from section 3705 of the Senate comprehensive immigration reform bill (S. 744) passed in June 2013, but the Kate’s Law authors have added several odious provisions. The heart of the bill would create a new 10-year maximum sentence for any person removed or denied entry more than two times who reenters. The current maximum for regular reentry is just 2 years. It would increase the maximum sentences for people who reenter after being convicted of various criminal offenses—including for immigration offenses—to up to 25 years.

Kate’s Law deletes two important provisions from the S. 744 language that would have protected from prosecution non-felon juveniles (p. 772-73) and humanitarian groups that provide immigrants caught in deserts or mountains food, water, or transportation to safety, which are sometimes the target of the “aiding and abetting” statutes (p. 774). Kate’s Law would also prohibit challenging the legality or validity of a prior removal order, which is a common defense in these cases. If the earlier removal was not valid, as in at least one case where a U.S. citizen was deported, it should not be the basis of prosecution.

Kate’s Law Would Further Overcriminalization

The U.S. Sentencing Commission estimated that the original mandatory minimums version of Kate’s Law would increase the federal prison population by almost 60,000 in 5 years—a massive 30 percent increase in the total federal prison population. Unfortunately, the House will vote on this new version—revealed late last week—without an estimate of either its financial impact or its impact on the federal prison population. But the law would likely completely reverse the recent 5 percent decline in the federal prison population, the first reduction since the 1970s.

Immigration offenses are already the top reason for a federal arrest, composing half of all federal criminal arrests—a share that has doubled since 2004. From 1998 to 2010, 56 percent of all federal prison admissions were for immigration crimes. Locking up immigrants requires taxpayers to pay to watch, house, clothe, and feed them, and unlike U.S. citizens who are released into the interior, they would otherwise be deported, so their incarceration does not even prevent other U.S. residents from being exposed their criminal behavior (assuming illegal crossing is a concern in that regard).

While, naturally, locking people up has some deterrent effect on future crossings, Border Patrol doesn’t bother to keep good data on this impact compared to its other efforts. Given the costs of incarceration—both to the person incarcerated and to the U.S. taxpayer—this seems like a critical insight. In any case, if Congress were serious about discouraging illegal immigration, it would make legal immigration significantly easier. As I have shown, the availability of work permits has a major impact on illegal immigration. That would free Border Patrol to focus on the few criminals.

It’s clear that the motivation for Kate’s Law rests on the belief that illegal immigrants are more likely to commit serious crimes and so should be singled out. Yet as my colleagues’ recent paper demonstrates, illegal immigrants are much less likely to end up behind bars than U.S.-born citizens. Because unauthorized immigrants are required to serve sentences before their removal, this is the best indication that they are less likely to commit crimes that require jail time.

In the end, Kate’s Law is an improvement on its prior versions, but is still an unjustifiable use of federal resources.