Current New Mandatory Minimum Legislation
The Restoring the Armed Career Criminal Act (S. 3335/H.R. 6697) is an attempt to “fix” the Armed Career Criminal Act (ACCA) following a Supreme Court Decision in Johnson v. United States (2015) that found the statute’s definition of a violent felony to be unconstitutionally vague. Rather than narrow the definition, these bills attempt to expand the reach of ACCA and apply the law’s 15-year mandatory minimum to defendants with prior low level, nonviolent, and nondrug related state felonies. The proposed fix to ACCA goes well beyond the intent of the law and would double down on an already failed policy.
H.R. 6691 passed in the U.S. House of Representatives only a week after introduction and with zero committee hearings. If passed, the bill would rewrite the definition of a “crime of violence.” H.R. 6691 is problematic because it classifies certain nonviolent offenses, such as burglary of an unoccupied dwelling, as a violent crime.
The definition of a “crime of violence” is an issue that is currently being litigated throughout the federal court system and a legislative fix requires far greater attention and due diligence than this bill received.
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. 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.
Take Action: Tell Congress to oppose H.R. 361 and S. 45!
The Back the Blue Act, if passed, would create new federal crimes and new mandatory minimum sentences for assaults, killings, or attempted killings of state and local law enforcement officers, including current and former police officers, probation and parole officers, firefighters, judges, correctional officers, and court personnel. While violence against these public servants is unacceptable, the Back the Blue Act is unnecessary, violates constitutional principles, and will produce unjust, expensive sentences that do not make taxpayers or law enforcement safer. Read FAMM’s factsheet on the bill here.
FAMM opposes the Back the Blue Act because
- It is unnecessary. All 50 states already make it a serious crime to assault, kill, or attempt to kill law enforcement officers, and all 50 states already have serious punishments — including the death penalty — for people who do so.
- It is unconstitutional. Prosecuting violent crime is one of the powers the Constitution reserves for state and local governments. We should not be “making a federal case” out of every attack on a police officer on a local beat.
- It lacks “mens rea” (criminal intent) provisions to ensure that only the criminally guilty are convicted. It is an age-old, bedrock principle that people should not be convicted of crimes unless they had a “guilty mind” and knowingly and intentionally committed the crime. The Back the Blue Act has no mens rea requirements.
- It will produce unjust sentences that do not make us or law enforcement safer. The Back the Blue Act’s lengthy, mandatory prison sentences will produce unjust and absurd results, including punishing people who assault or kill police unintentionally
- It will fill prisons and cost taxpayers billions. Despite recent declines, federal prisons are still overcrowded, and federal prison costs consume more than 25 percent of the annual Justice Department budget, sapping funding for law enforcement. Federal prisons are expensive and should be reserved for truly federal offenders like terrorists and cybercriminals, not people who can and should be prosecuted and punished in state courts by local authorities.
The SITSA Act, H.R. 2851, is problematic because it (1) lacks criminal intent (mens rea) standards; (2) creates harsh new mandatory minimum sentences for offenses that lack mens rea; and (3) lets a government bureaucrat, not Congress, decide what is and is not a drug offense. The SITSA Act would allow the attorney general, without court review or congressional approval, to vastly expand the number of synthetic and analogue drugs that carry criminal penalties under federal law. The bill would also create new, 20-year mandatory minimum sentencing laws for anyone who imports one of these synthetic or analogue drugs, if death or serious bodily injury results from the use of that drug. This mandatory minimum sentence will be applied to people even if they did not know or intend for the drug to cause injury or death.
Take Action: Tell Congress to oppose H.R. 2851!
H.R. 1781 is a misguided attempt to strengthen the federal government’s failed mandatory minimum policies as they relate to fentanyl.
If passed, this bill would:
- Lower the weight thresholds that trigger mandatory minimums. Under H.R. 1781, a defendant could receive a five-year mandatory minimum for as little as 0.5 grams of a mixture containing fentanyl and a 10-year mandatory minimum for as little as 5 grams of a mixture containing fentanyl.
- Creates a sentencing enhancement for drug violations involving fentanyl that can add as much as five years to a sentence.
- Authorizes the Attorney General to add new drug analogues and synthetic opioids to the federal criminal code, without Congress enacting a law and without judicial review.
Each of these three proposed measures would be counterproductive towards ending the opioid crisis and reducing the number of fentanyl-related deaths. Our current mandatory minimum policies failed to prevent this crisis, and doubling down will only make this situation worse. FAMM opposes H.R. 1781.
Take Action: Click here to tell Congress to oppose H.R. 1781!
H.R. 1761 is a well-intentioned bill that, in its current form, leaves open the possibility of very harmful unintended consequences. H.R. 1761 amends current law regarding the production and transportation of child pornography in order to correct a legal loophole found by the Fourth Circuit’s decision in United States v. Palomino-Coronado. Unfortunately, the overly broad language of H.R. 1761 means that the fifteen-year mandatory minimum prison term for a violation of this statute could apply to teenagers engaging in the popular act of “sexting” (i.e., when people consensually share sexually explicit content via text message). Sexting is common conduct among young people, due to the widespread availability of smartphones, and has become such a problem that 20 states have passed laws to ensure that young people do not face unduly severe sentences and other collateral consequences for sexting. Under H.R. 1761, a 19-year-old could face a 15-year sentence for sexting with their 17-year-old partner. This is clearly not an intended outcome of the legislation.
FAMM is urging Congress to create an exception to the mandatory minimum sentence for young people engaging in consensual sexting. FAMM opposes H.R. 1761.
The SECURE Act of 2017 introduces new mandatory minimums for a number of immigration related offenses. This bill includes a version of “Kate’s Law,” which would create a 5-year mandatory minimum sentence for some or all illegal reentry offenders convicted under 8 U.S.C. section 1326. We have opposed Kate’s Law in the past and we oppose the SECURE Act, which would introduce even more ineffective mandatory minimums in an attempt to curb unauthorized immigration.
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. In reality, these harsh, knee-jerk responses don’t get at the root causes of crime or make Americans safer. 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. FAMM also opposes the creation of federal mandatory minimum sentences for crimes the states are already policing and punishing themselves.
Solution: Avoid adding, expanding, or increasing mandatory minimum sentences in new legislation.