A hardline immigration bill the House passed this afternoon may have disappointed its most ardent supporters after a provision that could have led to skyrocketing federal incarceration rates was dropped from the original version.
Among those supporters are former Fox News host Bill O’Reilly and the president himself, both of whom touted the version of Kate’s Law – named after Kate Steinle, a woman killed by an undocumented immigrant in San Francisco in 2015 – that included mandatory sentencing requirements for undocumented immigrants who re-enter the U.S. after being deported.
O’Reilly was Kate’s Law’s loudest champion, frequently touting it on his program. His website had a petition viewers could sign calling on Republican leadership to give the bill a vote. And the mandatory sentencing requirements of at least 5 years in prison were key.
“The key word is ‘mandatory’ – no wiggle room,” he said on his July 13, 2015 show.
Kate’s Law passed House today, but it wasn’t O’Reilly’s Kate’s Law. Instead, the legislation increased the maximum sentences judges could hand down to certain immigrant offenders. There’s wiggle room aplenty.
And that means Donald Trump isn’t accomplishing exactly what he promised on the campaign trail. On August 31, 2016, at a rally in Phoenix, the president promised to raise mandatory minimums.
“On my first day in office, I am also going to ask Congress to pass ‘Kate’s Law’ – named for Kate Steinle – to ensure that criminal aliens convicted of illegal reentry face strong mandatory minimum sentences,” he said.
That didn’t happen on Day One, and it won’t happen with this bill either.
That said, for immigrants’ rights advocates, the bill is no cause for celebration; coupled with another piece of legislation that tries to cut off federal grant funding from sanctuary cities, the afternoon was a major blow.
Besides increasing maximum sentences for some immigration offenders, the bill also could penalize people who come to the U.S. seeking asylum, immigration expert Carl Takei of the American Civil Liberties Union explained. Under current law, if an asylum-seeker turns herself into Border Patrol agents, is detained, has her asylum claim denied, and gets removed from the country, that removal won’t affect her if she later returns to the U.S. and ends up in court.
But under Kate’s Law, having your asylum claim turned down would count as a deportation and could make you subject to a stiffer sentence if you try to enter the U.S. illegally.
Jesselyn McCurdy, senior legislative counsel at the ACLU, said this bill, compared to the 2015 version, is “incrementally better but not good.” She said increasing the allowable sentences means more people will spend more time in prison.
“It sends a clear signal to judges that the penalties should be ramped up,” she said.
But the bill could have been tougher.
“As I understand it, mandatory minimums would actually crash the system,” said Frank Sharry, who heads the pro-immigration reform group America’s Voice. “there would be so many people locked up that they couldn’t hold them.”
Not everyone holds that view.
John Malcolm, the vice president of the Heritage Foundation’s Institution for Constitutional Government, told The Daily Beast he hopes Congress considers mandatory minimums for some immigration offenses.
“Our nation’s immigration laws need to be taken very seriously, and too many illegal immigrants do not take them seriously because of a lack of enforcement that has existed in the past,” he said.
An aide for the House Judiciary Committee, where the bill originated, said the mandatory minimum sentencing requirements were removed to give judges more flexibility.
“The bill contains sentencing enhancements rather than mandatory minimums so that the judge can make a decision based on the deported felon’s criminal history, allowing the judge to determine if the enhanced sentence is warranted,” the aide said.
Kate’s Law will head to the Senate. Republicans tried to pass the legislation there in 2015––that time with the mandatory minimum sentencing requirement––and a Democrat filibuster killed it in the Senate. This time around, it may face the same fate. But the bill’s opponents say they haven’t ruled anything out.
Tom Jawetz, the vice president of immigration policy at the Center for American Progress, told The Daily Beast he and his staff have been urging Democrat senators to oppose the bill.
“I don’t take anything for granted, I never do,” he said. “I think it would be a mistake to take your eye off the ball, so I’m never going to presume that they won’t get to 60.”
Despite the changes, the bill remains a high priority for congressional Republican leadership and the Trump administration. On June 28, Attorney General Jeff Sessions wrote an op-ed for Fox News saying passing Kate’s Law and the anti-sanctuary cities bill would be “a major step for public safety.”
The broader issue the legislation points to is how immigration and the criminal justice system have grown thoroughly intertwined. A spokesperson for Right on Crime, a conservative criminal justice reform coalition, told The Daily Beast that his group wouldn’t be sounding off on Kate’s Law because they don’t focus on immigration.
It’s a stance that drew criticism.
“I don’t think you can talk about criminal justice without talking about immigration when it’s the number one reason for a federal arrest in the U.S. and a significant contributor to the growth in federal prisoners over the last couple of decades,” said David Bier, an expert on criminal justice and immigration at the libertarian Cato Institute. “So it is inconsistent to talk about criminal justice reform when it comes to other nonviolent crimes if when it comes to immigration, you remain silent.”