H.R. 361 / S. 45, Kate’s Law – FAMM

Pending Bills

H.R. 361 / S. 45, Kate’s Law

Categories: Congress, Department of Justice, Federal Bureau of Prisons, Taxpayers

“Kate’s Law” — H.R. 361 (S. King), S. 45 (Cruz) 

H.R. 361
Introduced by: 
Rep. Steve King (R-IA)
Text of bill: 
Click here for full text of this legislation.

S. 45
Introduced by: Sen. Ted Cruz (R-TX)
Text of bill: Click here for full text of this legislation.

Take Action: Click here to tell Congress to oppose H.R. 361 and S. 45!

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 some or all illegal reentry offenders convicted under 8 U.S.C. section 1326. Annually, the Justice Department convicts about 17,000 people for illegal reentry offenses, and they already serve average sentences of 16 months in prison. Click here to read our detailed summary of H.R. 361 and S. 45.

FAMM opposes Kate’s Law 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 and require dozens of new prisons — federal prisons are already at 116 percent of their capacity, which means they are overcrowded, dangerous for prisoners and correctional staff, and not able to focus on rehabilitation. If Kate’s Law passes, the prison population could grow by up to 57,000 people and require us to spend $9.45 billion to build nearly 30 new prisons — in the next five years alone.
  • Dramatically increase federal prison costs — H.R. 361 would cost taxpayers an additional $1.775 billion every single year to feed, clothe, and house illegal reentry offenders. That’s more than one third of what the FBI spends to fight terrorism, and more than the entire annual budget of the U.S. Marshals Service. Federal prisoners already consume more than $8 billion and nearly 30 percent of the Justice Department’s budget each year, squeezing out funding for other law enforcement and crime prevention programs that reduce crime, serve victims, and keep the public safe. S. 45 is also expensive: it would cost taxpayers an additional $816 million each year, plus prison construction costs. Kate’s Law will cost extra billions that could be better spent on other public safety and national security priorities.
  • Not solve America’s immigration problems — There is no evidence that mandatory minimum sentences deter crime generally, and no reason to believe they would stop illegal immigration. People come to the U.S. motivated by overwhelming forces of poverty, fear of violence, or love of family. Just as mandatory minimum sentences have not stopped drug use, they will not stop illegal immigration, either. The billions needed to pay for Kate’s Law would be better spent on better immigration enforcement and border protection.

Summary: Click here to read our detailed summary of H.R. 361 and S. 45 and what they would cost taxpayers.

Bill Status: The bills have not become law. We do not know if or when these bills could become law. To become a law, these bills must be approved by the Judiciary Committee, passed by the U.S. House of Representatives, passed by the U.S. Senate, and signed by the President. It takes a long time to pass a bill into law, and very few bills become laws each year. Versions of these bills have been introduced in previous sessions of Congress and have not passed.

Keep checking this page for updates on the bills’ progress.

Q & A

What would Kate’s Law do?

  • S. 45 would create a new mandatory minimum sentence of 5 years for illegal reentry (8 U.S.C. s. 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 having 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.
  • H.R. 361 would create a new mandatory minimum sentence of 5 years for all people convicted of illegal reentry (8 U.S.C. s. 1326).

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, 16 months). Kate’s Law would require that thousands of the 17,000 illegal reentry offenders sentenced each year 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?

  • This new sentencing regime would cost taxpayers between $816 million and $1.775 billion every year – plus up to $9.45 billion more within the first five years to build more federal prisons to hold non-citizens convicted of illegal reentry.

Why shouldn’t we spend billions on Kate’s Law?

  • The billions 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.
  • Kate’s Law won’t stop illegal immigration, but will cost taxpayers a fortune.
  • Illegal reentry offenders are already being punished — on average, they serve 16 months in federal prison and then face deportation. Kate’s Law would keep people in the U.S. much longer, at taxpayer expense, before they are deported.

Would Kate’s Law deter unauthorized migration?

  • People are only deterred from committing crimes if they (1) know what the punishment will be, and (2) think they will get caught.
  • Most people coming to the U.S. illegally are not legal experts, or don’t expect to be caught. A 5-year mandatory minimum sentence they don’t know about isn’t going to keep them away, and if they think they can make it without getting caught, many will try.
  • Many people coming to the U.S. illegally do so to flee violence and extreme poverty, or to work and reunite with families they love. Those powerful forces outweigh any fear of getting caught or serving serious prison time.

Would Kate’s Law make us safer?

  • No. There is no proof that federal mandatory minimums deter or reduce crime.[1]

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. Kate’s Law is inconsistent with this national trend and current bipartisan 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.


Prison Impact Analysis of Kate’s Law (by U.S. Sentencing Commission, using FY 2014 data)

Summary of H.R. 361 and S. 45 and what they would cost taxpayers


[1] National Research Council, National Academy of Sciences, The Growth of Incarceration in the United States: Exploring Causes and Consequences 134, 139 (2014), https://www.nap.edu/read/18613/chapter/7.