The Kate’s Law Parlay: A Bad Outcome on an Insane Bet

Two years ago, Donald Trump chose to demagogue a tragic death into political hay. Jose Ines Garcia Zarate, an undocumented immigrant from Mexico who had entered the country illegally five times, had killed Kate Steinle, a 32-year-old American.

Trump seized on the incident, using it to champion a law, which he dubbed “Kate’s Law,” that would sentence all second-time illegal border crossers to a minimum prison term of five years.

When I learned of this, I wrote about the absurdity of the proposed law in The Mystifying Math of Kate’s Law and Kate’s Law Sinking?. We would be criminalizing an act that is wrong only because we define it to be — crossing the border twice without proper documents —  based on some imaginary correlation between that act and violent crimes. And all based on the actions of one — that’s right, one — undocumented immigrant.

When I read about this two years ago, I assumed that the actual case against Zarate was airtight and that his taking of Steinle’s life was an especially heinous act.

Bad assumption on my part.

Turns out that Steinle lost her life in a freak accident. Yes, the bullet fired by Zarate killed Steinle, but only after it ricocheted off the pavement from long range. Zarate claimed the firing was accidental. One thing seemed reasonably clear: The gun was aimed not at Steinle, but at the ground. From the NY Times report:

Ballistic experts testified that the bullet ricocheted about 15 feet (4.5 meters) from where Zarate was sitting and then traveled another 80 feet (24 meters) before striking Steinle in the back and piercing her heart.

His attorneys argued that even an expert marksman would have difficulty pulling off such a “skip shot.”

Zarate just was acquitted on all charges other than the possession of a firearm by a felon. He had been charged with crimes ranging from involuntary manslaughter to first-degree murder. Yes, you read that correctly: first-degree murder. 

This is speculation, but it looks like the following transpired:

First, Trump, Bill O’Reilly at Fox, a few whacked out right-wing Congressional reps, and my friend Paula Pennypacker decided the incident was a basis to enact Kate’s Law. In the process, Zarate was demonized relentlessly as a murderer.

Second, after Fox News trumpeted the cause and House Republicans actually passed a bill (which sat in the Senate untouched for months), what choice did prosecutors have? The actions of Trump and his right-wing cronies forced them to overcharge. The result? They took a case that should have been charged as negligent homicide and instead tried it as first-degree murder. At trial, they had to argue to the jury that Zarate shot the gun intentionally for the purpose of killing Steinle with a bank shot off the cement from about 100 feet away. Tough argument, huh?

So, Trump tried to parlay (a) a freak accident, and (b) Zarate’s status as an undocumented immigrant who had crossed the border illegally multiple times and had prior convictions, into (1) a murder charge and (2) a draconian law that would send border crossers to prison for terms of five years or more.

The result? Unsurprisingly, Zarate was acquitted of all major charges.

And Trump’s reaction?

He’s furious of course, as is Paula Pennypacker. They believe it was a liberal jury that let Zarate off the hook. I’m still trying to learn how they ascertained the political leanings of all twelve jurors. They must have all been liberal, because if one or more were conservative the jury would had to have been hung. A conservative would have known that Zarate acted with intent to kill, right?

How will this impact Kate’s Law? Too early to tell, but it’s hard to see how the incident now can be used to fan emotional flames into enough yes votes. I know, they’re on a roll after getting atrocious tax bills through both chambers. But still.

In a way, Trump’s logic still holds. If we do a better job of locking out immigrants, at whatever the cost, there will be fewer people in America who might cause a freak gun accident like the one the killed Steinle.

Maybe they’ll realize that we could achieve the same result with more effective gun laws? No, that might actually save lives.

20 Responses to The Kate’s Law Parlay: A Bad Outcome on an Insane Bet

  1. Blue in the Red

    1. “We would be criminalizing an act that is wrong only because we define it to be …” Yes. This is true of all criminal offenses. They are criminal because we say they are.

    2. “… based on some imaginary correlation between that act and violent crimes.” Not really. There is a longstanding assumption of a correlation between immigration and criminality that has nothing to do with legal status or multiple border crossings. The multiple-crossings issue is really just a foot in the door for further marginalization of the undocumented, which is a foot in the door for reducing immigration overall. The contemporary GOP is fundamentally a party of racist and xenophobic whites, and the GOP quite reasonably sees its future political prospects as tied to reducing immigration, which has been heavily slanted towards non-whites since the 1960s.

    3. It is reasonable in this day and age to worry about who crosses our borders. I don’t want bomb-throwers sneaking through any more than you do. This is actually a good reason to liberalize our immigration policies, allowing our neighbors in Mexico, Central America, and the Caribbean to come and go freely. This would permit us to focus enforcement efforts on those who we really want to keep out.

    • Well, I don’t agree with your opening observation. Criminal jurisprudence divides crimes into those that are wrong in and of themselves, murder for example, which are known as “malum in se”, and those that are wrong only because we define them to be, driving without a license, for example, which are known as “malum prohibitum.” See the difference?

      • Bob,

        I understand that the distinction you’re making is part of legal theory, but I don’t find it helpful because (a) it is essentially theological, and (b) it does violence to reality by dichotomizing a continuum. It is theological because it assumes a higher power to tell us which acts are wrong in themselves. If you secularize this and say that “wrong in itself” is a matter of contemporary morality, then you are agreeing with me: we define what is wrong and what is not. As for the issue of dichotomy/continuum, many if not most criminal offenses aside from murder and parking violations fall into a gray area between the extremes of “this act is wrong in itself” and “this act is wrong because it violates rules that make our society run more smoothly.”

        That said, I am sympathetic to the argument you are trying to frame. Date rape makes you a bad person; overstaying a visa does not. But this is a moral argument that can be made in moral terms without getting into theology or legal theory.

  2. Sen. John Kavanagh

    Bob,
    What should the penalty be for someone who is deported and returns once?
    How about returning multiple times?
    You have to do something.

    • sen. kavenaugh what should be the penalty for refusing to pay for operations for people on access so they died? remember 2016 election was closer as 100 latinos turn 18 ( voting age) every day. revenge as the kleons say is a dish best eaten cold!

      • Sen. John Kavanagh

        Why won’t you answer the question?

        • I did its jury nullification! I was told in the 1960’s we had to look at the big picture not individual cases. ok I will do just that. kate steinle’s family will have to look at the big picture as unpleasant as that is, as I was told to do many years ago.

          • Sen. John Kavanagh

            So you believe in no border enforcement. If a person is charged with reentry after deportation, the jury should vote not-guilty?

    • Boy you really are obsessed with punishing people who are trying to improve their lives since the countries they’re coming from are in pretty bad shape. An effective way to cut down on undocumented immigrants would be to help improve those countries so they don’t want to leave in the first place.

      But clowns like you would rather blow taxpayer money on things like never ending pointless wars while ensuring the wealthy and major corporations pay as little tax as possible than make the world a better place.

      • Sen. John Kavanagh

        I will assume that your answer is no penalty and open borders. That is ridiculous. No country has that. How do you justify your position? Don’t you care about low income workers here?

        • Sure I do. As a proud member of the lickspittle to the wealthy party it’s obvious you don’t!

        • Hey sport, tell us again why you don’t just lock up the employers of undocumented immigrants? You would solve 90% of your problems with the border by just having a few Ag CEO’s do the perp walk.

          Why do you go after the poor folks and not the people who enable the crimes you’re so pinched up about?

          Lickspittle indeed.

    • Well, John, you are aware the net migration rate is around zero right now. So we don’t need to get over the top paranoid about the situation.

      Yeah, at some point there should be sanctions, but any more than a month or two would be silly.

      The problem with what Paula and Trump are proposing here is not the concept of doing something to address multiple border crossings, it’s the baseless correlation of multiple crossings to violent crime. When you buy into that logic, bad things can happen. After all, the next step would be to correlate physical characteristics or religious beliefs with crime. This is dangerous territory, John. If people like you decide to line up in a partisan manner, with no independent thought, we’re in trouble. We need you not to behave like Paula Pennypacker on this one. You up to the challenge?

      • Sen. John Kavanagh

        At least you answered my question, which is unheard of in this blog. Thanks for that.
        I do not dispute the fact that most returnees are not dangerous felons but to not punish returnees is creating an open border policy, which is crazy. No country has that, including Mexico.

        • Sen. John Kavanagh

          PS We Republicans are not taking Pennypacker back.

          • Oh no, you’ve got her. She’s all Trump all the time now, referring to us as “libtards” and other such names. Maybe she’ll work on your next campaign?

        • For Sure Not Tom

          Dude, you dodge questions all the time, and we always respond to yours.

          You’re openly lying and anyone can just scroll back a few posts and see proof.

          You fake conservatives do this crap all the time, claim someone else is doing what you yourself are doing, but you have left a trail of evidence here.

          You are a documented liar.

      • Net migration to the US is NOT near zero right now. The CIA Factbook estimates the net migration rate in 2017 at 3.9 per 1,000 population, which was also their estimate for 2016. (Their source is not clear. I looked at the ICE site, which under previous administrations had featured meaningful statistics, but under Trump it is being used primarily for crowing about triumphs over evil ferners.)

        However, Pew estimated that net MEXICAN migration in 2015 was close to zero, and they also estimated in 2017 that the undocumented Mexican population in the US had dropped by 1 million since 2007. Pew’s work is based on Bureau of the Census data using standard assumptions for identification of the undocumented.

        As for the question of open borders vs. regulated borders: Regulation is mandatory, in part because there are some people we really do need to keep out. Sensible and humane regulation is necessary, however, and that is not what we have, especially in the Trump era.

  3. The right wing nuts picked the wrong tragedy to politicize and they did it to stir up racial animosity.

    Kate Steinle was a real person, not a Hannity/Trump talking point. This was a horrible tragedy but not cold blooded murder.

  4. bob like the o.j. simpson jury, this jury was sending a message to trump and his supporters. this is called jury nullification. good government liberals have a problem saying trump you are not the only one who can use the legal system to send a political message. why do you think the democrats wouldn’t vote for conviction in clinton’s impeachment. do you really think they didn’t think he committed perjury? it was politics. republicans laugh at good government liberals when they say shame on you for injecting politics into the judicial system. we good government liberals are not going to use it for politics. when they go low good government liberals say we go high! did you see where that got democrats in 2016. clintonista’s were so busy denighing the election was rigged that when they realized it was, like voter suppression and voting machine problems they couldn’t say or do anything about it. the democratic base in san francisco is doing something for a change! the conservatives know they are vulnerable with the legal system so that is why it tells the corporate establishment democrats to tell the base not to use politics in the legal system the way the conservatives do like court packing.

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