Mimesis Law
4 July 2020

Congress Is Against Mandatory Minimums Except When It Isn’t

July 29, 2015 (Mimesis Law) — Chuck Grassley, the Republican senator from Iowa who leads the Senate Judiciary Committee, was once a staunch defender of mandatory minimum sentences. Just as the tide on criminal justice reform was actually turning toward reform, Grassley held firm, assailing efforts to undo fixed sentencing as part of a larger “leniency industrial complex” — a play on what reformers for years have called the prison industrial complex.

“What I have called the leniency industrial complex refers to the people who are to drug mandatory minimum sentences as ‘nonviolent,’” he said from the Senate floor as the bipartisan Smarter Sentencing Act was up for consideration. “They use that term even though any truly nonviolent offenders would qualify for the safety valve.”

That was in March. Between then and now, something must have changed in Grassley’s mind. The New York Times reported that he may on the verge of supporting a bill calling for a fix to the very thing he once demonized, and that he expects to have something ready before the Senate breaks for its August recess.

“It will be a bill that can have broad conservative support,” Grassley said, and one of its provisions is expected to involve expanded “safety valves” — allowing for greater sentencing discretion where none exists right now.

That Grassley was nowhere to be seen last Thursday, as he and a cadre of conservative lawmakers voted along party lines to approve a bill that would rein in so-called sanctuary cities — municipalities that voluntarily choose to limit their cooperation with federal immigration enforcement efforts.

The debate around these localities has been vastly overblown, in no small part due to the death of Kathryn Steinle, a young woman who was shot and killed in a bizarre incident involving a man who had been deported several times and reentered the country just as often. What only now has begun to take shape is a true discussion around the merits of an outrageous component of the sanctuary-cities bill: a mandatory minimum sentence of five years for anyone who is caught illegally reentering the country after a deportation.

No one better to tackle the nonsense of a five-year mandatory minimum sentence for illegal reentry than Molly Gill, the government affairs counsel of FAMM, one of the leading voices against these widely ineffective sentences. Writing in The Hill, Gill neatly picked apart everything that’s wrong with this part of “Kate’s Law” — including the illusion that somehow imprisoning noncitizens for five years at a time will keep communities safer.

“It is a disservice to families like the Steinles to take the resources we use on FBI agents and prosecutors, who investigate and prosecute violent criminals and terrorists, and use those funds to hold and babysit thousands of migrant workers, maids, and landscapers,” Gill wrote. “Congress can do as it pleases, but it can’t call this improving public safety.”

The thrust of Gill’s argument is pragmatic: The vast majority of those convicted of illegal reentry — which already happen to have been deported at least once — receive a sentence of around 18 months because prosecutors and defense attorneys have developed “fast-track” programs to move these cases through the system quicker. If a plea deal typically shortens the length of criminal adjudication, fast-track programs can be even more expedited — the idea is to get to an eventual deportation in as little time as possible. Isn’t that what the American public demands?

But a five-year mandatory minimum would destroy fast-track programs. “If a person will serve five years no matter what, why plead guilty?” Gill asked. “The increase in trials and lengthier criminal proceedings would slow the wheels of justice considerably and could mean fewer prosecutions overall.”

Nobody really wants that. And nobody really wants the attendant prison overcrowding and fiscal cost that would accompany such a regime, which would require about 50,000 additional prison beds, at a tune of about $1.75 billion per year, according to Gill. On Twitter, Carl Takei of the ACLU National Prison Project called her numbers a “lowball estimate”: he put the increase in prison beds at 65,000 and the price tag at $1.89 billion per year.

Perhaps in anticipation of the upcoming madness if the Grassley bill becomes law, a group of more than 170 organizations took it a step further and asked Attorney General Loretta Lynch full-stop to end prosecutions for illegal reentry. As in, all of them, once and for all.

That’s a long shot. But then again, that may be the best thing the executive can do to prevent the unraveling of very criminal justice reform it’s been working so hard to sell.

Main image via Flickr/Rennett Stowe

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