Vox
By Dara Lind
October 21, 2015
On
Tuesday afternoon, after months of talking about reforming the federal
criminal justice system, the Senate finally held a cloture vote on a
bill addressing mandatory
minimum prison sentences.
But
it's not what you think. This wasn't a bill to reduce mandatory
minimums, which both conservative and liberal criminal justice reformers
want to do. It was a bill
to increase the mandatory minimum sentence (in many cases) for the most
commonly charged federal crime: illegal reentry to the United States.
It's
not going anywhere. It just failed cloture in the Senate: 54
Republicans supported it, but 45 Democrats voted no. But why on earth,
at a time when the Senate Judiciary
Committee is about to mark up a broad criminal justice reform bill
written by Republican chair Chuck Grassley, did Senate Republicans rush a
bill to the floor that would have forced the government to build a
dozen new prisons?
The
answer is part policy, part intra-Senate lunchroom politics. Some
Republicans really are committed to reducing federal incarceration, even
when that means they can't
be tougher on people they don't like. For other Republicans, being
tough on immigration still trumps being smart on crime. But Senate
cliquishness trumps both.
Senate Republicans want to slap five-year prison sentences on repeat illegal border crossers
This
summer, unauthorized immigrant Francisco Sanchez allegedly killed a
young woman named Katherine Steinle in San Francisco, outraging
conservative immigration hawks.
The outcry against unauthorized immigrants and the "sanctuary cities"
that supposedly protected them led to a flurry of bills getting
introduced in both the House and Senate. The Stop Sanctuary Cities and
Protect Americans Act is an agglomeration of the Senate
contingent of those bills.
Most
of the act would cut funding to cities that limit which unauthorized
immigrants they turn over to federal authorities for deportation (which
are often called "sanctuary
cities"). Then there's the provision championed by Sen. David Vitter
(R-LA), and called "Kate's Law," after Steinle. That provision would
create a five-year mandatory minimum sentence for any immigrant who's
convicted of illegal reentry to the US after having
committed an "aggravated felony," or any immigrant who comes back to
the US after being convicted of illegal reentry (i.e., who comes back a
third time).
Democrats
call this "Trump's Law," as a way to tie congressional Republicans to
the GOP presidential frontrunner's extreme immigration views. The
nickname is misleading:
Trump's immigration policy is mass deportation, and Kate's Law wouldn't
actually cause more people to get deported. To the contrary, it would
keep them in US prisons for longer before getting deported.
On
the other hand, it wouldn't have the effect that its supporters think
it would, either. Senate Republicans touted Kate's Law as a way to deter
people from entering
the US illegally in the future. But longer sentences generally don't
deter crime — that's one big reason Republicans are getting on board
with criminal justice reform to begin with.
Voting on the bill was either a favor to a Louisiana senator or a kiss-off
Under
normal circumstances, the Senate probably wouldn't be bringing up this
bill for a vote at all — much less rushing it to the floor right after
getting back from a
recess. But Sen. Vitter, the lead sponsor of Kate's Law, is running for
governor of Louisiana. The Republican primary in that election is
Saturday. And Vitter is struggling in the polls.
It's
widely accepted in Washington that Majority Leader Mitch McConnell is
bringing up Vitter's bill for a vote so that Vitter can get a boost in
the gubernatorial race.
What isn't clear is whether this is because McConnell and the rest of
the Senate Republicans are doing Vitter an electoral favor because they
really like him and want him to succeed, or because they really dislike
him and want him to go somewhere else. Typically,
you'd assume it's the former, but Vitter's been called "one of the most
disliked members" of the Senate.
The problem: It would have forced the government to build a dozen new prisons
Normally
this bill, like any bill, would have gone to the Judiciary Committee
first before getting sent to the full Senate floor. Instead, Kate's Law
skipped the committee
stage — because there was a good chance it would have been killed
there.
Several
Republicans on the committee, especially Sen. Mike Lee, are among the
Senate's leaders on criminal justice reform. And while Kate's Law
wouldn't have had much
impact on immigration, it would have helped expand mass incarceration
at exactly the time reformers want to reduce it.
Illegal
reentry is the most commonly charged and convicted crime in federal
court — and it isn't even close. In July 2015, twice as many people were
convicted of illegal
reentry as were convicted of the next most common crime. Right now the
typical sentence is just 15 months — a quarter of the sentence under the
Vitter bill.
Not
all of those people would be covered by the new mandatory minimum,
because some of them were entering for only the second time and didn't
have an "aggravated felony"
on record (although the definition of "aggravated felony" is much
broader than you'd think).
The
new sentences would still apply to about 7,700 people a year, according
to an American Civil Liberties Union analysis of United States
Sentencing Commission data.
And because their prison sentences would be far longer than a year,
those increases would compound. The ACLU and the Center for American
Progress estimate that within five years, there would be more than
18,000 additional people in federal prison as a result
of Kate's Law. Given how overcrowded federal prisons already are, the
group further estimates that the Department of Justice would have to
build 12 new prisons to house them all.
According
to reports, Lee — who's generally an immigration hawk — wasn't willing
to increase incarceration to punish unauthorized immigrants. Neither was
Sen. Jeff Flake
(who's supported comprehensive immigration reform in the past). Without
those two, the committee vote would have been too close for comfort.
Instead, Kate's Law was rolled into the other "sanctuary cities" bills,
sent directly to the floor, and rushed to a
vote this week in advance of Vitter's election.
This isn't the last time legislators will have to choose between reducing mass incarceration and sending a message
Admittedly,
the intra-GOP split didn't show up in the final vote. (Republican Sen.
Mark Kirk voted with Democrats, but for immigration rather than criminal
justice reasons.)
For whatever reason, the Republican criminal justice reformers who were
initially resistant to Kate's Law weren't willing to pick a fight over
it in public.
But
this is far from the last time something like this is going to happen.
Criminal justice reform is like weight loss: It's one thing to lose the
pounds, but it takes
constant maintenance to keep them off. There is always going to be
something that one party or another sees as an urgent threat to America,
and thinks Congress needs to take a stand against. And while in the
abstract both Democrats and Republicans may agree
that there are too many people in prison for too long, there are plenty
of crimes you can name where one party or the other would say
punishments aren't harsh enough.
For
criminal justice reform to work, Republican reformers have to make sure
bills like Kate's Law don't pass — even though they want the government
to be tougher on unauthorized
immigration. They have to oppose massive prison expansions, even when
the prisoners are people they don't like. That's not easy under the best
of circumstances. But it's certainly not easy in a Senate where a bill
that would have forced the government to build
12 new prisons is rushed to a floor vote as a questionable favor for
one senator's gubernatorial bid.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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