Last night Donald Trump said this:
On my first day in office, I am going to ask Congress to pass "Kate's Law" — named for Kate Steinle — to ensure that criminal aliens convicted of illegal entry face strong mandatory minimum sentences.
This is stupid political theater; let me tell you why. I'll begin by emphasizing that it's not, by any stretch of the imagination, a stupidity that's unique to Trump. He's just the most recent example.
I'll leave aside, for the moment, that naming laws after crime victims generally leads to bad lawmaking. Let's instead focus on the fatuity that slapping a mandatory minimum sentence on a particular crime will do anything other than signal our moral outrage about it.
Reentering1 the United States after you've been deported2 is a federal crime. The maximum sentence depends on whether you've committed crimes before deportation, and can be up to 20 years if you've been convicted of an "aggravated felony."3. The United States Sentencing Guidelines — which are used to generate a recommended sentence for the sentencing judge — calculate the sentence based on factors including the number and nature of past convictions and commonly yield ranges anywhere from a year to six years. I prosecuted these cases when I was an Assistant United States Attorney and defended them when I worked on the indigent defense panel. It's also a crime to enter the United States as an illegal alien in the first place, though that used to be prosecuted rarely. After their sentences, these defendants are transferred into immigration custody and deported.
Trump's rhetoric suggests that we can reduce crime and protect citizens by lengthening the sentences of aliens who return after deportation. This is bunk.
First of all, only a small number of aliens who return after deportation are prosecuted. That's because of resource limitations, not lack of political will or indulgence. There are far fewer federal prosecutors than state prosecutors, and far fewer federal judges than state judges. As a consequence there are a limited number of federal prosecutions. For instance, in Fiscal 2010 there were just under 70,000 federal criminal cases filed nationwide. That's for all types of federal crimes. Immigration prosecutions already take the lion's share of those. That Fiscal 2010 year, almost 30,000 of those cases were immigration-related. Many of those were illegally returning aliens, but others including alien smuggling, immigration fraud, and related issues. Compare that to 115 civil rights prosecutions, 581 official corruption prosecutions, 300 organized crime prosecutions, and 6,437 white collar crime prosecutions for fiscal 2010.
Second, immigration prosecutions have already been skyrocketing, not declining. Federal prosecutions for illegal reentry – and now for even illegal initial entry — have surged dramatically during the Obama administration. That means they take up an even greater percentage of federal prosecutions and federal prosecutorial and judicial resources.
Third, this surge in prosecutions is made possible by plea-bargaining offering shorter sentences. Illegal reentry cases are some of the simplest federal cases to prosecute: you've just got to establish the defendant's alien status, prior deportations, being found in the United States after deportation, and (these days) prior criminal record.4 For the most part prosecutors prove those things up with agents and documents from the agency now called Immigration and Customs Enforcement ("ICE"). However, there are a limited number of ICE case agents to put cases together for prosecutors, a limited of number of ICE records custodians to testify, a limited number of federal prosecutors, and a very limited number of federal judges. So jurisdictions with a high rate of illegal entries and reentries have created fast-track programs that reward very quick pleas (within a few weeks of arrest, before indictment) with reduced sentences. Those fast-track programs drive a gigantic percentage of the federal criminal docket in places like San Diego.
Even with fast-track programs in place, and even with immigration crimes taking up a very large percentage of federal criminal efforts, only a small percentage of illegally returning deportees are prosecuted criminally. A tiny percentage of first-time illegal entries face prosecution. There are no resources to do more. U.S. Attorney Offices generally create internal guidelines to determine which cases they'll prosecute. For instance, when I was a federal prosecutor in the 1990s, the Los Angeles office only prosecuted cases involving aliens with prior aggravated felonies or lots of prior deportations. Those days, the office — one of the biggest in the country — indicted about 1,200 – 1,500 cases a year total. That number is lower now. It cannot make a statistically significant impact on immigration crime.
If you add mandatory minimums to the mix, that system collapses. Defendants lose the incentive to plead guilty promptly. If they're going to face a five or ten year mandatory minimum sentence, why plead out quickly? ICE lacks the resources to marshal lots of federal cases to trial as case agents. Federal prosecutors lack the resources to prepare for trial, and try, many more immigration cases. Federal judges lack the time and courtrooms to try the cases. (There are about 2,800 federal district judges nationwide, and remember that they handle both civil and criminal cases.) Unless accompanied by a substantial increase in resources devoted to ICE, the Justice Department, and the federal judiciary, increasing time spent on immigration prosecutions means reducing time available for administrative deportations and investigations, all other criminal prosecutions, and all federal justice, civil or criminal. That's before they are convicted: the federal prison system is already overcrowded and it costs about $30,000 per inmate per year. (Convicted aliens cost at the high end of the scale because they are generally held in higher security facilities.) Prosecuting returning aliens goes up, prosecuting corrupt politicians, white collar crime (especially complex white collar crime), gun crimes, organized crime, complicated drug conspiracies, political corruption, and abusive cops goes down. Your wait for trial in federal civil cases goes way up.
I've never seen any credible evidence that more prosecutions or higher sentences deter aliens from returning after deportation. Certainly an alien with a criminal record who is sitting in federal prison is not, at that moment, returning after another deportation and committing more crimes, but the system lacks the resources to make a statistically significant impact through such incarcerations, unless you'd like to pay a lot more in taxes, which you would not. And while you are incapacitating criminal aliens through mandatory-minimum incarceration you are not using those prosecutors, judges, or jail cells to incapacitate other criminals, including domestic criminals who offend at a higher rate.
Mandatory minimums, if applied rigorously, would therefore dramatically reduce federal immigration prosecutions. Of course, they wouldn't be applied rigorously; they almost never are. Instead, the likely outcome is this: Congress would pass mandatory minimum laws covering some illegal reentries. Federal prosecutors would retain discretion of whether to charge aliens under those new statues or under existing statutes without mandatory minimums. Federal prosecutors would use that discretion the way they usually do — to coerce cooperation and guilty pleas. So the length of sentences for aliens returning after deportation wouldn't increase; there would just be more prosecutorial power and discretion and somewhat quicker pleas. The impact of the law would be the opposite of how it is sold to the public.
Mandatory minimums could work differently if accompanied by a general policy shift. If Congress passed mandatory minimums and the Department of Justice said "we're going to focus our resources on prosecuting returning aliens with past violent crimes like rape and robbery and assault and stop prosecuting aliens with past drug or property crimes," we'd be having a different discussion. But that's not going to happen, is it?
Trump's mandatory minimum proposal is crowd-pleasing bunk. It's commonplace bunk, offered by politicians of all stripes, but it's bunk all the same.
- Or being found in, or attempting to reenter ▲
- Or denied entry to, departed under a deportation order, "removed" (which refers to an array of administrative actions), etc. ▲
- What's an aggravated felony? A substantial percentage of federal cases are made up of arguing over that question in different contexts. It's the "who was a better captain, Picard or Kirk" of federal law. ▲
- I say "these days" because the prior criminal convictions used to be sentencing factors, not factors to be proved at trial. However, a relatively recent line of Supreme Court cases held that the prosecution must prove to the jury certain factors driving sentences. I could explain at length but we'd both hate it. Suffice it to say it's the reason that the United States Sentencing Guidelines are now suggestions rather than restrictions. ▲
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