“Kate’s Law” was a regressive, reactionary, and racist proposal to try to impose mandatory minimum prison sentences on those convicted of attempting to enter the United States, including those seeking asylum or refugee status, if they had ever been removed or denied entry before.
Yesterday, the house passed a dried out husk of the bill, to respond to an alleged “lack of immigration enforcement.” This bill mercifully ditched the mandatory minimum sentences. Instead, it proposes to pointlessly raise the statutory maximum sentences for re-entry convictions.
While not as bad as the original version, it is still a complete waste of resources and effort, and is nothing more than a political stunt.
To the surprise of many, under 8 U.S.C. § 1326, it is a federal felony to try to come into the United States without permission if you have ever previously been removed from the U.S. or even denied entry into the U.S. Under Section 1326, the maximum sentence a person faces depends on their criminal history. If they have no criminal history, and have just a history of removal or exclusion, they cannot be imprisoned for more than two years. If that person has a prior felony conviction, the maximum is 10 years in prison. A prior aggravated felony conviction increases it to 20 years in prison.
The thing about statutory maximums, is that they often have almost no relationship to the typical sentences actually imposed for a particular offense. The federal sentencing guidelines set the presumptive sentence for any federal crime, and Section 2L1.2 sets the re-entry guidelines. These guidelines depend, just like the statute, almost exclusively on prior criminal convictions. For someone without any criminal history, they set a presumptive sentence of just 0-6 months in prison.
Even for someone with a long criminal history, as long as none of those prior convictions were felonies, the guidelines don’t really go up much higher. The highest base offense level a person can face under Section 1326(a) recommends a sentence of 15-21 months in prison, which would require at least six prior convictions for misdemeanors involving violence or drug trafficking in addition to separate convictions for two different immigration misdemeanors under 8 U.S.C. § 1325(a). To get a recommendation above the statutory maximum of two years, that same person would have also have to have a massive criminal history score, with at least six of those eight prior misdemeanors I having been committed in the preceding 10 years. See Sections 4A1.1(b); 4A1.2(e)(2). Plus, keep in mind, that is the guideline after trial, with no reduction for acceptance of responsibility or any plea agreement.
Felons are equally unlikely to face guidelines at or near the existing statutory maximums. The highest possible base offense level for any person convicted of any form of re-entry sets a guideline sentence of 121-151 months in prison. That is slightly above the statutory maximum sentence of 10 years for a non-aggravated felony. However, to get to that point, a person would have to have been convicted of at least three different felonies, which would have to include at least one prior re-entry conviction, at least one additional felony resulting in at least five years in prison before his first removal from the U.S. and at least one additional felony resulting in at least five years in prison after his first removal from the U.S. Maybe that’s possible, but certainly not likely.
Furthermore, those guidelines are the same whether or not the person has a prior aggravated felony conviction. For someone to face a guideline sentence even near the 20-year maximum, they would have to have the three prior and distinct felony convictions described above, at least one of those would have to be an aggravated felony conviction, and that person would have had to be in the highest possible criminal history category based on the recency of his crimes. Even then, the guidelines call for 210-262 months in prison, the low end of which is below the 20-year statutory maximum.
Enforcement of Section 1326 varies by jurisdiction, as does sentencing. Some districts also utilize fast-track agreements, which incentivize quick guilty pleas with steep sentencing discounts. According to the sentencing commission, though, under a generally harsher version of the guidelines that was in effect until recently, in fiscal year 2013, “all but two of the 18,498 reentry offenders” prosecuted nationwide “were sentenced at or below the ten-year statutory maximum under 8 U.S.C. § 1326(b)(1).” This included those with prior aggravated felonies who faced the 20-year maximum. In the entire federal system, based on the unique circumstances of more than 18,000 defendants, only two unfortunate souls were deemed deserving of any sentence beyond 10 years in prison.
Enter Kate’s Law. The new bill, which just passed the house, and has glowing support from both the president and attorney general (two strikes already), simply ups the statutory maximum sentences. Simple re-entry stays at two years, but section (b) is expanded to include different grading for distinct crimes and a new section is added for “reentry after repeated removal.” Three misdemeanors or a felony trigger the 10-year maximum. Certain other felonies trigger 15, 20 and 25-year maximums based on the length of sentence imposed and the type of offense. And, most significantly, if the person has no criminal history, but three or more prior exclusions or removals, it increases to 10 years.
The president believes this bill is necessary “to strengthen enforcement of our immigration laws and improve the security of our Nation’s borders” by “increase[ing] the penalties that may be imposed on criminal aliens convicted of illegal reentry [and] deterring reentry and keeping criminal aliens off our streets.” Attorney General Sessions says it will “restore sanity and common-sense to our system” and “penalize criminal illegal aliens who break our laws.”
Even if increased sentences had a deterrent effect, (which they don’t), this bill is a preposterous waste of effort.
The current statutory maximums are largely irrelevant anyway. The only significant change in the existing structure raises the 10-year maximum for certain offenders. Of course, as 2013’s two sentences above 10 years demonstrates, in the history of Section 1326 prosecutions, there may easily be tens of people who would be implicated by such a statutory restructuring. That is, of course, totally divorced from the policy question of whether it is necessary or appropriate to imprison a person for more than 10 years prior to deporting them, simply because they returned to the United States.
The new 10-year maximum for those without significant criminal histories but a history of attempts to enter is equally pointless. The statutory maximum might change, but the guidelines haven’t. This change would only affect someone with multiple removals or exclusions, who lacks three or more misdemeanor convictions or a felony. The highest guideline range possible for such a person, assuming two prior misdemeanors under 8 U.S.C. § 1325(a) with sentences of 364 days in jail, and an outstanding sentence of supervised release, is 10-16 months in jail. That is well below the two-year existing maximum and way below the 10-year maximum. Assuming a member of the judiciary imposed a sentence anywhere near the new 10-year mark on such a person, I should think the circumstances would have to be unbelievably compelling for a reviewing court to sustain that kind of upward variance as being “reasonable.”c
Ultimately then, this bill is a stupid political stunt that is effectively meaningless. If passed, I doubt that it will actually result in changed circumstances for even a single person facing sentencing. At the same time, if it did cause a change, it would be regressive and unfair.