More Harm Than Good

Is Kate’s Law a Terrible Idea?

Criminal-justice reform advocates warn that the bill, named after a woman killed by an undocumented immigrant, might do more harm than good.

Conservatives may be in the process of cannibalizing their own criminal justice reform efforts, under the guise of implementing tougher immigration laws.

For years, conservative criminal justice reform advocates have worked overtime to build a broad coalition of right-of-center activists and groups to right some of the over-sentencing laws of the 90s. They’ve looked to change how the United States handles incarceration and policing, while rolling back some of the Clinton-era prison policies that led to a spike in the prison population.

And they’ve had some significant successes on the state level, notably in Georgia and Texas. Now, they’re aiming for criminal justice reform in Washington.

And their efforts looked promising—until Kate’s Law.

You’ve probably heard of the ugly killing of Kate Steinle.

Steinle was shot and killed by an undocumented immigrant this early summer while on Pier 14, a popular tourist destination in San Francisco. The immigrant had been deported five times but returned to San Francisco, a city that doesn’t cooperate fully with federal immigration enforcement efforts. Steinle’s killing sparked national outrage, and that outrage sparked a call to, well, do something.

What resulted is called Kate’s Law, a bill named after the victim, pushed by her parents, and boosted before a massive audience by Fox News host Bill O’Reilly.

That bill would require a mandatory minimum prison sentence of five years for any undocumented immigrant convicted of illegally re-entering the United States after being deported. Arizona Republican Rep. Matt Salmon introduced the bill in the House, and Sen. Ted Cruz introduced a companion version in the Senate. And that has conservative criminal justice reformers holding their heads in their hands.

Mandatory minimum sentence requirements have long been a popular way for politicians to burnish their “tough on crime” reputations. Nobody ever lost an election for being too anti-criminal.

But in the process, America’s prison population skyrocketed, doing outsize damage to African-American communities—as well as state and federal budgets. Mass incarceration doesn’t come cheap, and that was why conservative legislators in Texas started moved to overhaul the state’s criminal justice system back in 2007—it was getting too expensive to lock up that many people, so they reformed how sentencing worked and changed rules regarding probation and parole. The outcomes there were great: the state saved money, reduced its incarceration levels, and crime went down in the process.

Since then, conservative lawmakers have been trying to go national with some of those reforms. This year could have been their best opportunity yet—President Obama has signalled that he’s interested in the sentencing reform issue, lawmakers in both the House and the Senate have formed bipartisan, pan-ideological coalitions to back a variety of bills, and the Black Lives Matters protests have pushed criminal justice issues into the headlines like never before.

Cruz has also been a key player in those efforts, co-sponsoring legislation on the issue and calling for a reexamination to “current draconian mandatory minimum sentences.” He’s even waxed poetic on the issue.

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“Today, far too many young men—and in particular African-American young men . . . find themselves subject to sentences of many decades for relatively minor, nonviolent drug infractions,” he said in February, per Rolling Stone. “We should not live in a world of Les Misérables, where a young man finds his entire future taken away by excessive mandatory minimums.”

But here’s the thing: Kate’s Law, which Cruz has energetically boosted on the presidential campaign trail, could sizably increase the prison population by forcing nonviolent offenders to spend years in prison—and, conservative criminal justice experts say, without having a sizable impact on how many deported immigrants unlawfully return to the United States. According to the U.S. Sentencing Commission, the law would likely send 60,000 more people to federal prison over the next five years. That would increase the federal prison population by 28 percent and would cost about $2 billion per year.

Cruz argues the bill is a step in the right direction.

“Too many Americans have been victimized by illegal aliens who had previously been deported,” he said in a statement. “We must send the message that defiance of our laws will no longer be tolerated.”

Others disagree.

“Mandatory minimums don’t deter crime, and they seldom punish only the offenders who inspire legislation like Kate’s Law,” said Molly Gill of Families Against Mandatory Minimums in a statement. “This bill won’t stop deported immigrants from re-entering the country, but it will force American taxpayers to pay for half a decade’s worth of food, clothing, and housing for people we supposedly don’t want in the country at all.”

On this issue, Cruz has even lost one of his closest allies. Sen. Mike Lee, a Tea Party favorite from Utah, opposes creating new mandatory minimum sentences and has been “a particular thorn” for its boosters, according to Politico. And other conservative criminal justice advocates have been baffled by Cruz’s stance. One conservative who’s worked extensively on criminal justice issues said he found Cruz’s advocacy for the bill particularly surprising, given the senator’s invocation of Les Miserables to denounce lengthy mandatory minimums. And Pat Nolan, who helms the American Conservative Union Foundation’s Center for Criminal Justice Reform, said Kate’s Law could undermine their efforts to roll back other mandatory minimums.

“I do think it’s a step backwards,” he told The Daily Beast. “It’s sort of a disconnect—they know that mandatory minimums haven’t worked, they know that they’ve resulted in absurdly long sentences for rather minor players, and so, yeah, it’s like all of the progress that we’ve made in showing policymakers that the mandatory minimums are counterproductive gets swept away in the emotion of the moment.”

Nolan added that our country’s experience with mandatory minimum sentences for nonviolent drug offenders would likely predict what kind of results we could expect from similar rules for nonviolent immigration offenders.

“There are a lot of folks who have come back across the border, and they shouldn’t,” he said. “But the idea of having them locked up for five years on the taxpayer’s dime seems like a really extravagant way to deal with it.”

On top of that, he added, mandatory minimums are notoriously ineffective at actually deterring crime.

“That presumes that criminals are rational calculators, that they say, ‘Oh, I was gonna do that, but gee, they raised the penalty, so I’m not going to commit that crime,’” Nolan said. “There’s no evidence that works at all. These folks are not rational calculators. They all think they’re smarter than everybody else, and they don’t think they’re going to get caught.”

“It’s laughable,” he added, of the efforts to limit drug crimes by hiking sentencing requirements. “It hasn’t stopped that at all.”

John Malcolm, who works on criminal justice issues at the Heritage Foundation, shared Nolan’s skepticism about the effectiveness of mandatory minimums to deter crime.

“Despite the existence of mandatory minimum penalties at the federal level and in many states, replacing drug dealers has not been a very difficult thing for cartel organizations,” he said. “Once a drug dealer is arrested, there will be three or four there to take their place. If you were looking for evidence of general deterrence in the drug area, you’d be hard pressed to find it.”

“There are people in other countries who are desperate to come to our shores,” he added, “and they’re probably willing to risk certain penalties.”

Bryan Johnson, an immigration attorney who has represented clients who have illegally reentered the United States after being deported, said these migrants typically return because they’re fleeing danger in their home countries or because they’re seeking to reunited with family here.

“The fact that someone illegally reenters the United States has no bearing on whether they’re going to, in the future, commit a criminal offense,” he said.

In short, Kate’s Law would be enormously expensive, and there’s scant evidence it would be worth the cost. But hey, a white girl got shot. We have to do something.