Opposing New Mandatory Minimum Sentences

The Problem:  Despite 30 years of evidence showing that mandatory minimum sentences don’t work, members of Congress still often resort to them as a quick-fix solution to crime concerns. FAMM opposes legislation that would create new, additional, or increased mandatory minimum sentences for federal crimes. FAMM opposes all mandatory minimum sentences because they are expensive, fill prisons, threaten federal funding for other effective crime-fighting programs and victims, and produce unjust results. In addition to these defects, mandatory minimum sentences are unnecessary. The federal sentencing guidelines provide judges with guidance to punish crimes and protect the public, but are flexible enough to ensure that sentences fit the crime and the offender.

Solution: Avoid adding, expanding, or increasing mandatory minimum sentences in new legislation.

FAMM is opposing the following mandatory minimum sentences in the 114th Congress: 

“Kate’s Law” — H.R. 3011 (Salmon), S. 1762 (Cruz), S. 1812 (Grassley), S. 2193 (Cruz) 

Various versions of “Kate’s Law,” named for Kate Steinle, a woman killed by a person who had illegally reentered the U.S. after being deported, would create a 5-year mandatory minimum sentence for illegal reentry offenders convicted under 8 U.S.C. s. 1326. Annually, the Justice Department convicts about 20,000 people for illegal reentry offenses, and they serve average sentences of 15 months in prison.

FAMM opposes the legislation because it would

  • produce unjust sentences that do not make us safer — for example, Kate’s Law would give the same 5-year mandatory prison sentence to someone who re-entered the country illegally to flee religious persecution or donate an organ to a dying loved one, and to someone who came here to commit a terrorist attack. Kate’s Law does not allow judges to consider the offender’s background, criminal record, or other facts that may merit a different sentence.
  • dramatically increase the federal prison population — federal prisons are already at 125 percent of their capacity, creating dangerous overcrowding and poor conditions for prisoners, correctional staff, and effective rehabilitation. 
  • dramatically increase federal prison costs — one version of the bill, S. 2193, would cost an additional $3.1 billion over 10 years to feed, clothe, and house these illegal reentry offenders — plus billions more for building the 9 new prisons necessary to house such a large increase in the federal prison population. Federal prisoner housing and detention already consumes more than $8 billion and nearly 30 percent of the Justice Department budget each year, squeezing out funding for other law enforcement and victim services programs that reduce crime, serve victims, and keep the public safe.

Q & A

What would Kate’s Law do?

  • S. 2193 would create a new mandatory minimum sentence of 5 years for illegal reentry (8 U.S.C. 1326) by individuals with a prior “aggravated felony” conviction or at least 2 prior illegal reentry convictions, regardless of a person’s criminal record or other circumstances particular to his or her case, such as U.S. family members, asylum-seeker status, or other vulnerabilities. 8 U.S.C. section 1101(a)(43) defines “aggravated felony” broadly to include theft, filing a false tax return, and failing to appear in court, as well as more serious crimes.
  • S. 2193 would raise the maximum penalty for illegal reentry across the board.

What’s the problem with Kate’s Law?

  • Illegal reentry already carries a 2-year prison sentence, and most illegal reentry offenders do spend time in prison (on average, about 15 months). Kate’s Law would require that thousands of the 20,000 illegal reentry offenders sentenced each year ALL serve 5-year sentences — regardless of whether they are a danger to the public. While Kate’s Law will incarcerate some violent people, it will also incarcerate many, many nonviolent people — at huge cost and little public safety benefit to taxpayers.
  • Mandatory minimum sentences are “one-size-fits-all” justice and inevitably produce sentences that do not fit the particular facts and circumstances of both the offense and the person who committed it. Kate’s Law does not allow consideration of the person’s prior record, reason for being in the country, rehabilitation, or likelihood of committing more crimes in the future.
  • Mandatory minimum sentences frequently produce irrational and excessive punishments and contribute to unwarranted sentencing disparity. For example, Kate’s Law would give the same 5-year sentence to people who enter the country illegally to commit an act of terror … or to work a job, attend a loved one’s funeral, donate an organ to a dying child, or escape religious persecution or war. Clearly, not all of these people pose the same risk or deserve 5 years in prison. 

How much would Kate’s Law cost taxpayers and grow the federal prison system?

  • Estimated conservatively, this new sentencing regime would cost taxpayers $3.1 billion over the next ten years just for people with a prior “aggravated felony” conviction – and require the construction of 9 new federal prisons at even additional cost. [3]
  • The $3.1 billion spent on Kate’s Law is money that could be better spent on priorities that make Americans safer, like victim services, crime prevention, state and local law enforcement, better cybersecurity, anti-terrorism — and, yes, better border and immigration enforcement.

Would Kate’s Law deter unauthorized migration?

  • No. The May 2015 report from the Department of Homeland Security Office of the Inspector General (DHS OIG) on the Streamline initiative finds that Customs and Border Protection (CBP) is unable to demonstrate that Border Patrol referrals of apprehended migrants for prosecution by U.S. Attorney’s Offices actually deter unauthorized migration – the precise policy goal of CBP.[1]

Would Kate’s Law make us safer?

  • No. There is no demonstrable link between federal mandatory minimums and decline in crime. [2]

What would Kate’s Law mean for criminal justice reform?

  • In the last 10 years, more than 30 states have repealed or reformed their mandatory sentencing laws. There is currently unprecedented bipartisan support for mandatory sentencing reform in Congress, too. Perplexingly, S. 2193 is completely inconsistent with this national trend and current efforts to reduce and reform mandatory minimum sentencing laws.
  • If passed, the costs of Kate’s Law would dwarf any savings produced by the bipartisan sentencing reform bills pending in Congress.


Opposition Letter to S. 2193, July 6, 2016 (signed by FAMM and other reform groups)

Data analysis of Kate’s Law impact (by U.S. Sentencing Commission)

FAMM press release on Kate’s Law impact


[1] Office of Inspector General, Streamline: Measuring Its Effect on Illegal Border Crossing 2 (May 15, 2015), available at https://www.oig.dhs.gov/assets/Mgmt/2015/OIG_15-95_May15.pdf.

[2] Marc Mauer, Viewpoint, The impact of mandatory minimum penalties in federal sentencing (July-August 2010), available at http://sentencingproject.org/doc/publications/s_Viewpoint.pdf.

[3] Calculations by the ACLU and the Center for American Progress, based on U.S. Sentencing Commission and Bureau of Prisons data, and assuming steady annual illegal reentry convictions at FY2015 levels. In FY15, just over 5,900 individuals with illegal reentry convictions had a prior “aggravated felony” conviction, i.e. all those individuals who received 8-level, 12-level, and 16-level enhancements under the sentencing guidelines. See U.S. Sentencing Commission, “Quick Facts, Illegal Reentry Offenses,” Fiscal Year 2015, available at http://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Quick_Facts_Illegal_Reentry_FY15.pdf (last accessed July 2016). The impact of the proposed 5-year mandatory minimum for illegal reentry with a prior aggravated felony conviction was calculated by adopting the conservative assumption that the new sentence length for each of the 5,900 individuals above would increase to exactly 5 years. Assuming otherwise steady incarceration levels, and a cost per bed, per day of $87.61, the increased annual expenditures within five years, and every year thereafter, would be $448 million. The total increased cost for the first 5 years would be $834 million, and the total increased cost for the second 5 years would be $2.2 billion, for a total cost to taxpayers over 10 years of approximately $3.1 billion. Additionally, within five years, the increased illegal reentry sentence lengths for people with prior aggravated felonies would require an increase of 14,000 prison beds, or about 9 new prisons at 1,500 beds per prison. See Bureau of Prisons, “Federal Prison System, Per Capita Costs, FY 2015”, available at https://www.bop.gov/foia/fy15_per_capita_costs.pd.