‘Kate’s Law’ Reflects Our Worst Policy-Making Instincts

‘Kate’s Law’ Reflects Our Worst Policy-Making Instincts

Congress should stop acting like liberals who believe a new federal law can fix every problem.
Kevin Ring
By

When Congress returns in September, some members hope to force a vote on one of the most ill-conceived criminal laws in recent memory. The proposal, known as Kate’s Law, would require courts to sentence any individual with certain qualifications (such as having committed misdemeanors or aggravated felonies) who re-enters the country after being deported to a minimum prison sentence of five years. The bill might be called a lot of things – “rash,” “short-sighted,” and “fiscally irresponsible” jump readily to mind – but one description that clearly does not fit is “conservative.”

Russell Kirk, the legendary philosopher and author of The Conservative Mind, said “prudence is chief among virtues” for a conservative. He wrote:

Any public measure ought to be judged by its probable long-run consequences, not merely by temporary advantage or popularity. Liberals and radicals, the conservative says, are imprudent: for they dash at their objectives without giving much heed to the risk of new abuses worse than the evils they hope to sweep away. … Human society being complex, remedies cannot be simple if they are to be efficacious. The conservative declares that he acts only after sufficient reflection, having weighed the consequences. Sudden and slashing reforms are as perilous as sudden and slashing surgery.

Conservatives are rightly skeptical of the Left’s desire to enlist the Nanny State to correct every perceived inequality, or fix every shortcoming of human (and Mother) nature, and to substitute immediately and wholesale their conception of progress for the lessons of history and tradition. Conservatives rightly argue that governing a diverse nation of 320 million people requires humility, restraint, and prudence.

Imagine the scorn conservatives would (rightly) heap on liberal lawmakers who introduced a bill thought up by Rachel Maddow. We should be more cautious.

Kate’s Law is anything but prudent. Start with its pedigree: Bill O’Reilly of Fox News announced on air one night last month that Congress should pass a five-year mandatory minimum for illegal re-entry. He even gave his idea the name “Kate’s Law.” Within 24 hours, some in Congress were sprinting to the Office of Legislative Counsel to put O’Reilly’s proposal into legislative jargon. Imagine the scorn conservatives would (rightly) heap on liberal lawmakers who introduced a bill thought up by Rachel Maddow. We should be more cautious.

And so much for acting “only after sufficient reflection” and “weigh[ing] the consequences,” as Kirk admired. The legislation was introduced simultaneously with a single hearing at which recently victimized families wept and begged Congress to act. Forget letting passions cool, or calmly considering whether new legislation was needed, or what specifically such legislation should look like. Why should the new mandatory minimum be five years as opposed to two, eight, or fifteen years? No one can say. Do we really want to lock up even those who re-enter here illegally in an effort to flee religious persecution by ISIS, or to donate a kidney to a blood relative? No one even thought to ask, but that’s what the mandatory minimum would do.

The strangest aspect of the rush to get Kate’s Law passed is that it comes at a time when many principled conservatives are seeking to modestly reform federal sentencing laws. Senator Mike Lee (R-UT), a former federal prosecutor, is trying to scale back existing mandatory minimum penalties for drugs because these laws have been tougher on taxpayers than they have been on crime. Federal spending on prisons has skyrocketed 800 percent over the past 35 years, while drug use has remained largely the same. The nation’s crime rate has decreased substantially, but it is impossible to give mandatory sentences much, if any credit. State jurisdictions that repealed mandatory minimums experienced the same crime declines as those that maintained them. Further, spending more to babysit nonviolent drug offenders has crowded out spending on the agents, investigators, and prosecutors that target violent criminals.

The strangest aspect of the rush to get Kate’s Law passed is that it comes at a time when many principled conservatives are seeking to modestly reform federal sentencing laws.

The U.S. today incarcerates more people than China, Russia, or any oppressive regime on the globe. That reality might not give some conservatives pause. But with Kate’s Law, we will not only have the most people in jail in the world, but we will have the most people from the world in our jails. Hundreds of thousands of foreign citizens will crowd U.S. prisons. American taxpayers will be forced to pay an additional $2 billion annually to house, clothe, and feed these foreign criminals before they are ultimately deported. Even Donald Trump thinks this is a bad idea.

Rather than demand a vote on Kate’s Law, conservatives in Congress should stop acting like liberals who believe a new federal law can fix every problem. Instead of imposing a quick-fix solution that will hurt U.S. taxpayers more than anything, they should take time to explore every option to address shortfalls in our nation’s immigration and criminal law enforcement system. I am not sure what is the best way to stop insane people like Kate Steinle’s killer from committing senseless acts of violence, but I’m pretty certain that Kate’s Law is the worst.

Kevin Ring is the vice president of Families Against Mandatory Minimums and the editor of “Scalia’s Court: A Legacy of Landmark Opinions and Dissents,” published last month by Regnery. He previously served as counsel to then U.S. Senator John Ashcroft on the Senate Judiciary Committee and as executive director of the Republican Study Committee. Follow him on Twitter, @kevinAring.
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