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Sen. Ted Cruz, left, and Sen. Mike Lee, right, take their seats at the start of a Senate Judiciary Committee hearing on Capitol Hill on July 21, in Washington, DC.
Analysis

The Nonviolent Offenders Congress Forgot

While prison reform gains momentum, the immigration debate remains “tough on crime.”

With President Obama’s speech to the NAACP and his visit to a federal prison last week, the push for criminal justice reform took center stage. His statements crystallized the growing bipartisan agreement in Congress that it’s time to overhaul a system that incarcerates nonviolent offenders for far too long and strains crowded prisons and dwindling budgets.

But bypassed in the emerging consensus is a key contributor to the problems in the federal system: the polarizing issue of immigration.

The most serious offense for roughly 10 percent of the federal prison population is immigration-related, and over half of federal criminal convictions so far this year have been for illegal entry or re-entry. As lawmakers look to lessen the criminal consequences for drug convictions, even legal immigrants also remain at risk of deportation for those same crimes.

Despite the momentum of prison reform, a tough-on-crime stance remains in much of the debate on immigration. And current events could push it even further in that direction. A week after Obama urged reductions in mandatory minimum sentences for nonviolent drug crimes, Congress discussed a new mandatory minimum for nonviolent immigration offenses.

Those favoring a tougher approach got renewed support this month, after the shooting death of a young woman in San Francisco. The woman, Kathryn Steinle, was shot on July 1, as she walked along a city pier. An undocumented immigrant, Juan Francisco Lopez-Sanchez, was charged with her killing; his lawyers said it was accidental and he pleaded not guilty. Lopez-Sanchez had re-entered the U.S. after five deportations, and had been released from county jail after authorities refused to detain him at the request of Immigration and Customs Enforcement. In the last few weeks, he has become immigration’s “Willie Horton,” invoked by numerous politicians and talking heads as they call for tougher border enforcement and an end to “sanctuary cities.”

A hearing on Tuesday by the Senate Judiciary Committee featured multiple family members of those killed by non-citizens. “I will not give up another child so that a foreign person can have a nicer life,” said Laura Wilkerson, whose son Joshua was killed by an undocumented immigrant in 2010. “Thank you to Mr. Trump for getting the message out.”

The committee chairman, Charles Grassley, an Iowa Republican, blamed the deaths on the Obama administration’s “lax immigration policies.”

“The Obama administration, in too many cases, has turned a blind eye to enforcement, even releasing thousands of criminals at its own discretion,” he said, addressing the panel. Senator Dianne Feinstein, Democrat of California, followed with: “Convicted felons should be removed from the country but not released into our streets.”

Republican Senator Ted Cruz of Texas — a supporter of drug sentencing reform — said he had introduced “Kate’s Law,” which would punish illegal re-entry into the U.S. with at least five years in federal prison. Senator Grassley announced a bill with a similar provision. “No more people should die at the hands of those who break our laws just by being here,” Grassley said.

Lopez-Sanchez served four years in federal prison for returning to the U.S. after his deportation to Mexico. The average sentence is 18 months, but it can be as long as 20 years depending on someone’s criminal and immigration history.

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The prosecution of immigration crimes has grown in recent years to make up a large part of federal law enforcement. A report by the Brookings Institute's Hamilton Project, from which Obama cited the overall cost of mass incarceration in the U.S., says that the “increase in federal imprisonment rates has been driven by increases in immigration-related admissions. Between 2003 and 2011, admissions to federal prisons for immigration-related offenses increased by 83 percent.”

As Carl Takei, a staff attorney for the ACLU National Prison Project, put it, prosecutions for illegal border-crossing “have essentially taken over the federal criminal justice system in the Southwest.”

When asked in the hearing how a new mandatory minimum would impact Immigrations and Customs Enforcement, ICE director Sarah Saldana replied, “We’re stretched on our resources already. To expand it...would be a very big problem for us.”

Those sentences are mostly served at one of 13 “Criminal Alien Requirement” prisons run by private companies, as a way to cope with overcrowding in federal facilities. Prisoners there have reported many of the same problems Obama highlighted in his address: the overuse of solitary confinement, a dearth of programming, and inadequate health care. Conditions drove inmates at one such prison in Willacy, Texas, to riot this spring.

Senators and family members that testified on Tuesday also called for swifter deportation of immigrants with criminal records — proposals that impact permanent residents and visa recipients as well as the undocumented. Even though many lawmakers have agreed to scale back criminal sentences for offenses like drug possession and sale, those same convictions can still end in removal for non-citizens. Many convicted of nonviolent crimes remain at the top of the list for deportation under the Department of Homeland Security’s “enforcement priorities.”

As Obama explained in a speech last November, Homeland Security emphasizes deporting “Felons, not families. Criminals, not children.” His criminal justice speech, in contrast, focused on the fact that felons, too, have families (“around one million fathers are behind bars”) and that the current system treats many children like criminals (“We have to make sure that our juvenile justice system remembers that kids are different”).

The drug treatment programs and other alternative sentencing being put forth as the solution to locking up low-level offenders may also not apply to immigrants. While the goal of such programs is to help individuals avoid a criminal record, they often require someone to plead guilty to participate. And under immigration law, a plea with court conditions can be as good as a conviction. Even with an expunged or deferred sentence, immigrants may be removed.

“Even looking at the clemency that the president issued, if any of those recipients are immigrants, they would still be facing deportation,” said New York University law professor Alina Das, who focuses on immigration and criminal justice. “The immigration consequences of drug offenses have been ignored for too long.”

Obama stressed the importance of second chances — for citizens — in his criminal justice remarks. “While the people in our prisons have made some mistakes, and sometimes big mistakes, they are also Americans,” he said.

But he also noted: "In the immigrant tradition of remaking ourselves, in the Christian tradition that says none of us is without sin and all of us need redemption, justice and redemption go hand in hand."