Post Date: May 31, 2017
Originally published 5/30/17 at The Hill
The debate over criminal justice reform has taken a head-spinning turn on Capitol Hill.
After months of debate over whether to curb mandatory minimum prison sentences, Republicans are now going in the opposite direction.
A new border security bill includes mandatory minimum sentences for certain immigrants who try to re-enter the country after they’ve already been deported and for people convicted of violent crimes against judges and police officers.
The Hill reviewed a draft copy of the legislation, which is still being hammered out by Sen. John Cornyn (Texas), the No. 2 Senate Republican, and House Homeland Security Committee Chairman Michael McCaul (R-Texas).
The legislation includes “Kate’s law,” a measure named for Kathryn Steinle, a 32-year-old woman killed in 2015 by a felon who had been deported but returned to the United States. The law effectively creates a three-strike rule. Immigrants with prior aggravated felony convictions or two prior convictions for illegal re-entry would get a mandatory 5-year sentence.
President Trump repeatedly talked about Steinle during his presidential campaign as he backed policies cracking down on legal and illegal immigration.
The legislation also incorporates Cornyn’s Back the Blue Act, which creates a 30-year mandatory minimum sentence for killing a judge or federal law enforcement officer; a 10-year minimum for assault if the judge or law enforcement officer is seriously injured; a 20-year mandatory minimum if a deadly or dangerous weapon was used in the assault; and a 10-year minimum for fleeing after killing, attempting to kill or conspiring to kill a judge or law enforcement office.
The law defines a law enforcement officer as any federally funded public safety officer or judicial officer for a public agency, including firefighters.
The new legislation represents a shift in the battle over mandatory minimum sentences and criminal justice reform more broadly.
Over the last several years, momentum for eliminating mandatory sentencing laws gained steam with the backing not only of former President Barack Obama, but also from conservatives such as Sen. Mike Lee (R-Utah) and Charles and David Koch, the conservative GOP mega-donors and political heavyweights.
With the election of Trump, however, there are some signs that things are now moving in a different direction.
Trump and Attorney General Jeff Sessions have vowed to empower law enforcement and crack down on illegal immigration.
Earlier this month, Sessions reversed an Obama-era directive that aimed to ease mandatory minimums when he ordered federal prosecutors across the country to “pursue the most serious, readily provable offense” that by definition “carry the most substantial guidelines sentence, including mandatory minimums.”
Cornyn’s work on the new bill appears to represent another shift given his past work on the Sentencing Reform and Corrections Act. That legislation, which Sen. Dick Durbin (D-Ill.) spearheaded alongside Lee and Sen. Chuck Grassley (R-Iowa), called for reducing mandatory minimums for certain drug crimes.
Cornyn was one of the first 15 original co-sponsors of that legislation, which never made it to the floor for a vote.
“First Attorney General Sessions sends out a directive asking for U.S. attorneys to prosecute to higher levels, which is contradictory to what our bill hoped to achieve, and then this bill by Sen. Cornyn,” Durbin said.
“I don’t understand his position.”
Cornyn said the new legislation is in draft form and still evolving.
“We don’t have a final product,” he told The Hill on Thursday. “We’ve been sharing some language with the Department of Homeland Security and the House so there isn’t a final product. I know people like to comment on leaked draft documents, but I don’t find that very productive.”
When asked for his response to claims that provisions in his bill contradict his past support for reform, Cornyn said his bill is not a statement about mandatory minimums generally.
“I’m not opposed to all mandatory minimums,” he said. “For example, felons carrying guns, I like the five-year mandatory minimum because it acts as a deterrent and saves lives.”
Susan Phalen, a spokeswoman for the House Homeland Security Committee, declined to comment for the story.
Kevin Ring, president of Families Against Mandatory Minimums, said he understands Cornyn’s reasoning for supporting minimums for certain crimes.
“But just because you support some [mandatory minimums], doesn’t mean you should support the worst,” he said. “These are incredibly broad and expensive.”
Ring claims the provisions in Cornyn’s bill will cause more damage than any good Grassley’s and Durbin’s reforms would have done in terms of reducing the prison population.
“These are two of the biggest prison expanding proposals we’ve seen combined into one massive bill,” he said. “We can’t possibly build prisons fast enough to keep up with the influx we’d have.”