Will Released Alien Convicts Be Deported? Can Senate Bill 2123 Be Defeated?

By Dan Cadman on November 5, 2015

It's been about two weeks since the media caught hold of a little-remarked change in U.S. sentencing guidelines that occurred in 2014, making many federal prisoners eligible for earlier-than-expected releases, which began to take effect Halloween weekend when the first of an eventual flood of 40,000-plus drug and "minor" offenders, were released. "Trick or Treat!" (Well, maybe the American public just gets the trick; there's no treat that I can see here.) Estimates are that between 11,500 and 13,200 of those released will be alien convicts.

Uncertainty over whether the administration will choose to deal with these alien felons promptly and effectively is so strong that House Judiciary Chairman Bob Goodlatte (R-Va.) wrote an article for National Review condemning the guideline changes because they were undertaken by the U.S. Sentencing Commission rather than via legislation, with the result that violent offenders are being released. Various senators also sent letters to the attorney general and the secretary of the Department of Homeland Security (DHS) to urge that the aliens released be held in detention pending removal.

The Sentencing Commission and the administration deny that violent offenders will make up a hefty portion of the releases, but Paul Sperry of Investors' Business Daily quotes senior probation officers as putting the lie to those denials:

Senior U.S. probation officials tell me that a large number of the convicted felons who will go free within the next few days are in fact hardened gang members with violent criminal records, including weapons use.

"If you look at the history of many of those being released, they are far from nonviolent," said Greg Forest, who last month stepped down as chief U.S. probation officer for the Western District of North Carolina.

And more than 4 in 10 will return to drug-dealing and gangbanging after they hit the streets.

Internal government documents I've obtained show that the administration figures as many as 43% may re-offend within five years of release. ...

What's more, a third of the released prisoners are illegal immigrants, some of whom are affiliated with the brutal MS-13 gang. Despite what the administration says, they aren't scheduled to be deported upon release.

"We were told we may end up supervising them," Forest said.


What do advocacy groups have to say about these offenders? In a joint letter to the director of Immigration and Customs Enforcement (ICE), a DHS agency with primary responsibility for enforcement in the interior of the United States, including over criminal aliens, 14 organizations urged, among other things, that the offenders be "screened for prosecutorial discretion", the administration's phrase for the unconstitutionally broad catch-and-release program through which tens of thousands of aliens, notably including alien criminals, have been released from custody back to the streets rather than be subjected to deportation proceedings. Among those spearheading the charge with the letter were the American Civil Liberties Union, the American Immigration Lawyers Association (AILA, the private bar group that represents aliens for a fee), and the Service Employees International Union (SEIU, a union organization which includes large numbers of aliens living and working illegally in the United States).

This letter is Exhibit A as to why Americans cannot trust open borders advocates to ever go along with any immigration reform that attempts to combine amnesty with restoration of a balanced enforcement program. The notion of removing aliens, even alien felons, is anathema to their way of thinking. They will sit back, wait for the amnesty, and then waylay every effort at enforcement, as they did the last time around.

And prosecutorial discretion? The overwhelming majority of the alien convicts being released are defined as "aggravated felons" under immigration law, due to their drug trafficking and gun convictions. The law requires that they be detained pending removal, and even provides for an expeditious method of deporting them that doesn't require ICE to queue them up for hearings before immigration judges, whose detention dockets are so backlogged that it can take months to even initiate a hearing. Taxpayers should not be expected to bear those costs — especially considering that many of those released are traffickers who were apprehended in the act of moving drugs into the United States across land and sea borders. It is no accident that the three states representing the highest number of arrests of these convicts are border states: California, Texas, and Florida.

And as to Chairman Goodlatte's concerns that the sentencing guideline changes represent just one more instance of overreach into the legislative arena by administrative agencies under the Obama administration: He's right, but can our Congress be counted on to do the right thing? That's another matter entirely. Even as senators write to express concern over the outcome of alien convict releases, these same senators push forward a second sentencing "reform" bill that would result in even more releases, including additional alien offenders.

The bill, S. 2123, has been vigorously opposed by a host of organizations representing law enforcement officers (active and retired) and prosecutors. Nonetheless, it was passed out of committee to the floor of the Senate on October 23, despite the strenuous and vocal objections of these law enforcement professionals.

This action characterizes all that is wrong with the Senate, which is in a lamentable state that inevitably invites unflattering and invidious comparisons to imperial Rome. Has the upper chamber of Congress become so insular and so atrophied that it is beyond repair? It's a weighty question to ponder.

But the question to be posed to Chairman Goodlatte is this: Will your chamber act more responsibly and ensure that no bill that even remotely resembles S.2123 ever passes in the House?