About Trump's Mandatory-Minimums For Returning-Aliens Proposal

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.

  1. Or being found in, or attempting to reenter  
  2. Or denied entry to, departed under a deportation order, "removed" (which refers to an array of administrative actions), etc.  
  3. 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.  
  4. 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.  

Last 5 posts by Ken White

Comments

  1. John Thacker says

    Indeed, California just passed a mandatory minimum (i.e., give sentencing decisions to the DA who determines the charge instead of the judge and jury) law in response to the Brock Turner mess. It was unanimously supported in the CA Assembly, of course. (The worst part was seeing various self-proclaimed liberals talk about how it was great to live in such a liberal state that it would pass such a tough-on-rape mandatory minimum law, and that the only shame was that it wasn't explicitly named after Brock Turner. I know, comments.)

  2. Mu says

    You really think Trump would come up with a reasonable version that would maintain prosecutorial discretion? He's already blabbering about "every arrest will lead to deportation"; he'll better budget for reopening Yuma Prison and expanding it's size all the way to Gila Bend.

  3. Korp says

    It sounds like you're advocating for either some of the workload of prosecuting illegal immigrants to be shuffled from the overworked federal system to the state system (SB1070-ish laws), or you're advocating for a mechanism that simply reduces the number of illegal immigrants that make it into the system (a wall), thereby giving the federal system some breathing room.

  4. Picador says

    What John Thacker said above. I'd love a post here about how the new California mandatory minimums for sexual assault of unconscious persons dovetails with the "affirmative consent" standard the CA legislature put in place in 2015, and which its defenders assured us would not be misapplied to consensual contact between long-term romantic partners because of judicial discretion (which has now been removed from the equation).

    Roll over in the night and absent-mindedly rub up against your sleeping husband's junk? Enjoy your mandatory prison sentence, rapist.

  5. Lagaya1 says

    Korp- I think Ken was not advocating either of those. I think he was saying to quit advocating silly laws that will not work.

  6. PonyAdvocate says

    This is stupid political theater …

    Of course it is. With his speech, Trump was not trying to advance a coherent policy — he was doing what he always does: appeal to the stupidest, most ignorant, most bigoted portion of the electorate, in hopes that there are enough such voters to elect him President (though some commentators, of course, have suggested that he doesn't actually want to be President). To consider virtually anything Trump says as if it were amenable to intellectually serious critique is a lost cause.

    During one of his campaigns for President, an admirer of Adlai Stevenson said to him "Mr. Stevenson, every intelligent citizen will vote for you", to which Stevenson replied "Madam, I'm afraid that's not sufficient — I need a majority."

  7. Tom says

    Ken puts his finger on the problem – the court system cannot cope with this bold and innovative problem – but doesn't dare grasp the obvious implication – the outmoded legal system can no longer deliver the Peoples' Justice. What we need is a skilled and pragmatic leader, one well versed in the Art of the Deal, to remove all these pettifogging restrictions of law, evidence, and elementary maths, the red tape that hobbles the creative destruction of our future. Also, amendment 22 of the Constitution will need some adjustment…

  8. Trent says

    Of course the problem with ANY proposal from Trump is he apparently thinks the President is all powerful or his voters are stupid enough to believe they are. About 90% of the things he claims he's going to fix the President has zero authority over and of the other 10%, the vast majority would require Congress to act before the president could do anything.

    I'll never forget him saying he was going to end crime in Detroit. The President and the people he controls have no authority over local law enforcement, yet I bet most of his audience believed him. Personally I don't think he doesn't know this, I think he's just telling people who don't know better what they want to hear. And just like all the impossible promises Congress-critters have made in he last 8 years, none of them would come true.

  9. Garrett says

    Could it be possible to make crossing outside of official border checkpoints along the Southern border a felony while at the same time empowering States themselves to enforce immigration law? Arizona wanted to take a stab at it before – real guidelines and authority could allow it to be done in the future.

  10. IForgotMyName says

    You guys are misunderestimating Trump again. He doesn't NEED political authority to save Detroit–using his many business contacts and yes, the art of the deal, Trump will broker an agreement between the local government of Detroit and a private corporation to take control of the Detroit PD. Then, under the leadership of the best people in the private sector–the best people–this corporation will bring use the power of the free market to drastically increase the effectiveness of the police to eliminate the criminal element in Detroit. And best of all, it will offset the costs of this project and indeed generate a net profit by taking the run down parts of Detroit back from the criminals and developing it into a modern, high tech utopia

  11. Argentina Orange says

    @Trent

    The President and the people he controls have no authority over local law enforcement,

    Wickard v. Filburn says you're wrong. Crime affects something that is tied into interstate commerce, ergo it's a Federal matter.

  12. DRJlaw says

    @Argentina Orange

    Wickard v. Filburn says you're wrong. Crime affects something that is tied into interstate commerce, ergo it's a Federal matter.

    Printz v. United States, 521 U.S. 898 (1997) says you're wrong.

    "The question presented in these cases is whether certain interim provisions of the Brady Handgun Violence Prevention Act, Pub. L. 103-159, 107 Stat. 1536, commanding state and local law enforcement officers to conduct background checks on prospective handgun purchasers and to perform certain related tasks, violate the Constitution."

    * * *

    "We adhere to that principle today, and conclude categorically, as we concluded categorically in New York: 'The Federal Government may not compel the States to enact or administer a federal regulatory program.' Id., at 188. The mandatory obligation imposed on CLEOs to perform background checks on prospective handgun purchasers plainly runs afoul of that rule."

    The Executive cannot compel local law enforcement to enforce what I will loosely call "Trumpism." The Brady Handgun Violence Prevention Act was something actually passed into law by Congress, and the unified Federal Government still could not compel local law enforcement to conduct background checks. Trent's point, concerning Trump's claims he can unilaterally fix crime and immigration by simply ordering everyone (including States) to do what he says, is even more valid.

  13. Argentina Orange says

    @DRJlaw

    Sorry that the sarcasm wasn't broad enough. When one says that FedGov can't do something, one is ignoring the demonstrated fact that the legality of an action has nothing to do with how agents of said government behave. See also Operation Chokepoint, Fast and Furious, The FBI and MA crime labs, everything that Radley Balko has ever written, FOIA, "no governing legal authority," the 55 MPH speed limit, the 0.08% BAC DUI standard, etc etc.

    Wickard was just the formal codification of "even though you are doing something on you own property that will never leave your property, or involves any other human being you are still engaging in interstate commerce and subject to our authoriteh because of title F, sec Y, subsec T, paragraph W."

  14. DRJlaw says

    @Argentina Orange

    Yes, I didn't get that. On the other hand, this would not be government versus individual, where they can grind someone into paste without having to be right. This would be big government versus smaller government, where both are nigh immovable objects, and the lever is money that the bigger government is loathe to spend.

  15. Christopher says

    There is something a slight bit odd about going "You have illegally entered this country, where you are not allowed or wanted. So as punishment, we're going to force you to stay in this country for several years, during which time we will house, feed and clothe you on our own dime."

  16. says

    All true, in my experience. The same can be said about federal gun laws. It may be against federal law for certain persons (for example felons) to possess a gun or for straw purchasers to assist them in getting guns, but these laws are almost never prosecuted (unless there are lots of guns or you think the perp is doing something more serious and the gun crime is all you have).

    If you were serious about gun control you would be better served by allocating resources (i.e. more prosecutors and judges) to prosecute the gun laws that already exist.

    Of course, that would also entail jailing a lot of grannies and kid sisters with otherwise clean records, or the 40 year old family man with a 20 year old drug conviction who carries a piece because runs a liquor store in a bad neighborhood, but that is a whole other story.

  17. amber says

    Why can't they simply fingerprint, photograph, get DNA sample, urine specimen, then analyze the latter two, and tell the individual their choice is $500 plus the cost of a ticket home, or $500,000 and a card that allows them to legally stay in the country? I think I read that landed immigrant status was $500,000. If it isn't, then changd the dollar amount to whatever landed immigrant status requires.

Trackbacks

  1. […] End "catch-and-release." If anyone is caught illegally crossing the border, that person will be detained until deported. Language always matters, and it determines how people will be treated, so for now, forget the fact that immigration deals with human beings and not fish. Immigration jails are already bursting at the seams, in part because Obama did one hell of a job in locking up immigrants. Denying CBP/ICE officers the discretion on who to detain will further clog the immigration jails, and any suggestion to criminally prosecute all those that are caught will overburden the federal criminal system. […]