The proposed amendments to §2L1.2 of the current guidelines manual would boost the base offense level from 8 to 10, or even higher if there are prior reentry convictions. In light of the nature of the actual conduct involved, as well as the priorities stated above, level 8 is already too severe.
In comparison with many other federal offenses that involve a distinct threat to public safety or entail conduct that portends serious harm to life, to property, or to the integrity of our financial and commercial institutions, level 8 is disproportionately high. Far more alarming forms of criminal conduct are scaled at that same level. These include mishandling of hazardous or toxic substances; insider trading; commercial bribery; and trespass on the grounds of the White House.
Moreover, many types of criminal conduct that pose danger to the wellbeing of the public are scaled as though they are less serious than migrant reentry. An assault that threatens use of a firearm is scaled at base offense level 7. At base offence level 6, we find unlawful possession of a gun in a federal facility or a school zone; violation of food and drug laws and regulations; and possession of hazardous or injurious devices on federal land. Even discharge of a firearm in a school zone is scaled at level 6.
We argued instead for a further reduction in the base level and provided insight from our interviews with defense attorneys, judges, and migrants directly impacted by prosecutions that we have been conducting as field research for our upcoming report on migrant prosecutions. A quote from one Texas defense attorney describes how the current guidelines are already incredibly dehumanizing:
The most troubling aspect of sentencing in an illegal reentry case is the huge role a past conviction plays in driving the guideline range. Simply being here illegally should be treated differently than committing new crimes upon returning. But that's not what happens in court. The guidelines make defendants proxies for their past crimes and call for them to be punished again for those offenses. Instead of a human being at sentencing, you represent a prior conviction – an ounce of cocaine, a domestic assault, a drunk driving incident. When clients and their families complain about the unfairness of this I can only say that it's the law.
One judge in Arizona told us that he doesn’t believe sentences for entry and reentry are much of a deterrent at all:
People are coming to the US to send money back to their families, or because they already have children here. A lot of really unfortunate things are going on in Mexico that force people into crossing the border. They face an impossible employment situation in Mexico; they face increased violence, what with even well educated Mexicans now running drugs. I don’t give many lectures to them about why they should not be coming back, because I just don’t think that what I have to say has much impact compared to, “But my wife and my children are up in Kansas,” or, “I was about to be killed back in Michoacán.”
We also raised to the Commission the story of a Mexican man we spoke with who has lived in the U.S. for 14 years and has three children. He was picked up in a traffic stop in McAllen and prosecuted while his wife was pregnant with their third child. He missed the birth of his child and was unable to support his wife economically during her pregnancy. Nonetheless, he returned almost immediately and spoke to us about the impossibility of heeding the judge’s admonition not to return to the United States:
You say OK, but you have to come back. When the attorney was translating I told the judge that I have children here and everything and it’s impossible to stay there [in Mexico] and leave my children here... After they deported me, I returned after two months. My family is here. I can’t stay there. My family needs me.
We concluded by acknowledging the work of the Sentencing Commission to reduce the number of individuals in federal prison for nonviolent offenses and emphasizing the grave human cost of reentry prosecutions.
Reentry convictions come at an enormous human cost to the migrants sentenced, their families, and communities. They further criminalize a population that is already marginalized by economic and immigration policy, giving a criminal record to people trying to reunite with family, sustain them economically, and flee violence. There is an enormous cost to families, including U.S. citizen children, who suffer emotional and economic hardship from the incarceration and deportation of their loved ones. The impacts of these charges extend to entire immigrant communities. They exacerbate fear of law enforcement, contribute to internalization of guilt for traumatic experiences, and drain economic resources that could be used for innovation or education.
Substantial guideline modifications are sorely needed to ameliorate the grave harm that results from current prosecution and sentencing practices in the federal courts. We hope that you will take this opportunity to move toward reducing, across the board, the harmful impact of the prosecution and sentencing policies that are currently sending tens of thousands of migrants to federal jails and prisons each year.
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