Republican bill targets migrants who re-enter US illegally with mandatory 10-year sentences

Republicans members of Congress have rallied behind a new approach to deterring unauthorized immigration – jailing migrants for a decade at a time.

The GOP has toyed with the idea of imposing mandatory minimums on immigration offenses for a decade, most famously with a proposal called “Kate’s Law”, which would have imposed five-year sentences on those convicted of illegal re-entry with certain criminal histories.

But the new Stop Illegal Entry Act took that idea and ran with it, imposing a mandatory minimum of five years in prison for anyone who enters the US illegally and then commits a crime punishable by more than one year in prison. For those who commit a crime punishable by up to two years in prison, the mandatory minimum jumps to 10 years. That’s the same mandatory minimum imposed on people convicted for sex-trafficking children.

The bill passed the House of Representatives on 11 September, largely along party lines, with the support of 11 Democrats and the White House. Ted Cruz, the Republican Texas senator, is now trying to shepherd the measure through the Senate.

Mike Johnson, the Republican US house speaker, applauded the bill in a statement as a “commonsense” deterrent against “those who repeatedly and deliberately violate US immigration law.”

But criminal justice groups describe the bill, HR3486, as a wildly impractical measure that would shunt tens of thousands of people into prisons for a non-violent offense over the next few years, while logjamming the federal courts – at a cost of roughly $440,000 for every person incarcerated, according to an estimate from the Federal Public and Community Defenders Legislative Committee.

The measure would impose draconian new penalties on defendants that often have urgent reasons for migrating to the US, criminal justice reformers say – like attempting to reunite with family members here or escaping violence or poverty in their country of origin.

“This is a mass incarceration bill,” said Jesse Franzblau, the associate director for policy at the National Immigrant Justice Center. “It’s really a handout to private prison companies just to lock up more people. It should be outright rejected by anyone who believes in any semblance of due process when it comes to immigration or law enforcement.”

HR3486 would also impact a staggering number of people. The bill targets offenders facing prosecution for illegally crossing the border after removal, a crime known as “illegal re-entry”. Under current law, crossing the border without authorization is a misdemeanor punishable by up to six months for the first offense and up to two years for subsequent offenses. Federal prosecutors may also charge illegal re-entry as a felony punishable by up to two years, with enhancements that can theoretically extend the penalty up to 20 years – though in practice such prolonged sentences are rare.

It’s not entirely clear how many defendants would be subjected to mandatory minimums if HR3486 became law, but current trends indicate that the number is well into the thousands. The Federal Public and Community Defenders Legislative Committee estimated that 7,000 people would easily get slapped with 10-year mandatory minimum sentences under the proposed law, based on 2024 statistics. Those figures would probably be much higher now, because the Trump administration prosecutes illegal re-entry cases more aggressively than the Biden administration did.

The Congressional Budget Office has not yet scored HR3486. The US Sentencing Commission estimated that the comparatively modest Kate’s Law would have inflated the federal inmate population by 57,000 over five years.

It’s common for people facing illegal re-entry charges to have previous immigration convictions on their records, some of which would invoke a 10-year mandatory minimum under the proposed law. Immigration offenses account for more than half of the federal criminal caseload, according to data compiled by the Transactional Records Access Clearinghouse database, with illegal entry and re-entry cases accounting for the lion’s share.

The possibility of adding thousands of new inmates to federal prisons on decade-long sentences would have a massive impact on the Bureau of Prisons, whose total inmate population stands at approximately 155,000.

“The cascading effects of subjecting thousands of individuals to a 10-year mandatory minimum sentence cannot be overstated,” reads a letter to congressional leaders penned by the Federal Public and Community Defenders Legislative Committee. “The entire system would be driven by the demands of section 1326 [illegal re-entry] cases, at the expense of violent crimes and other offenses that pose a far greater threat to public safety.”

Criminal justice and legal groups also warn that the bill could paralyze the federal courts. Nearly all illegal entry and re-entry cases are convicted through plea deals with reduced sentences in order to shuttle them quickly through the system.

But it wouldn’t make sense to plead guilty to a crime carrying a 10-year mandatory prison sentence.

“If this passed, the federal courts would implode,’’ said Kara Hartzler, an attorney with Federal Defenders of San Diego. “No one would have any incentive to take a plea. Suddenly the number of cases that go to trial would just go through the roof. Any court that has a significant number of these prosecutions would just be completely overwhelmed.”

Illegal re-entry cases are prosecuted across the country, though the vast majority of defendants face charges in jurisdictions that lie near the US-Mexico border. The House version of the bill was sponsored by Republicans who in most cases live far from the courts most likely to be affected – Republican representatives Stephanie Bice of Oklahoma, Ryan Zinke of Montana, Brad Knott of North Carolina, Anna Paulina Luna of Florida, and Brandon Gill of Texas.

While the bill would impose massive costs, it’s unlikely to accomplish its goal, critics say. Many migrants who cross into the US are already risking their lives. A strong body of research indicates that mandatory minimums do not deter offenders, according to Liz Komar, a lawyer with the the Sentencing Project.

“When we look at the research on deterrence, it’s really about the certainty of punishment, not the severity,” Komar said. “It’s a well-established criminological principle at this point. That’s in terms of talking about actual crime, actual public safety concerns. What we’re talking about here, though, is really about migration.”

It remains to be seen whether Cruz will have enough bipartisan support to push the bill through the Senate. While the Republican-majority House of Representatives passed the bill easily, HR3486 gained less liberal backing than the last major immigration bill passed by Congress. That measure, the Laken Riley Act, garnered four dozen Democratic votes in the House and 12 Democratic votes in the Senate.

Cruz would need the support of all GOP senators, plus at least seven Democrats or independents to hit the 60-vote threshold needed to bring the Stop Illegal Entry Act to a vote on the Senate floor.

That doesn’t mean the bill is dead. Republican supporters could still find a way to tack the measure to must-pass legislation. And the fact that the bill made it this far suggests that Congress may see more attempts to saddle immigration offenses with mandatory minimums in the future, Komar said.

“Even if this bill does not progress in the Senate, it’s part of a broader trend of normalizing mandatory minimums – particularly in the context of immigration,” Komar said. “And even a more modest bill could have dramatic impacts that the Bureau of Prisons does not have the capacity to handle and which will not benefit public safety.”