Federal Sentencing – Immigration

Ruben G. Rumbaut, Ph.D. & Walter A. Ewing, Ph.D., Immigration Policy Center, The Myth
of Immigrant Criminality and the Parodox of Assimilation: Incarceration Rates among
Native and Foreign-Born Men (Spring 2007).

Available at: http://www.ailf.org/ipc/special_report/sr_022107.pdf

“[D]ata from the census and other sources show that for every ethnic group,
without exception, incarceration rates among young men are lowest for
immigrants, even those who are the least educated and the least
acculturated. This holds true especially for the Mexicans, Salvadorans, and
Guatemalans who make up the bulk of the undocumented population. What
is more, these patterns have been observed consistently over the last three
decennial censuses, a period that spans the current era of mass immigration
and mass imprisonment, and recall similar national-level findings reported by
three major government commissions during the first three decades of the
20th century.” Id.at 1.

Immigrants have lower incarceration rates than natives: “Among men age
18-39 (who comprise the vast majority of the prison population), the 3.5
percent incarceration rate of the native-born in 2000 was 5 times higher than
the 0.7 percent incarceration rate of the foreign-born.” Id.

“The foreign-born incarceration rate in 2000 was nearly two-and-a-half times
less than the 1.7 percent rate for nativeborn non-Hispanic white men and
almost 17 times less than the 11.6 percent rate for native-born black men.”
Id.

“Foreign-born Mexicans had an incarceration rate of only 0.7 percent in
2000—more than 8 times lower than the 5.9 percent rate of native-born
males of Mexican descent.” Id.

The paradox of assimilation: “The children and grandchildren of many
immigrants—as well as many immigrants themselves the longer they live in
the United States—become subject to economic and social forces, such as
higher rates of family disintegration and drug and alcohol addiction, that
increase the likelihood of criminal behavior among other natives.” Id.at 2.
“Given the cumulative weight of this evidence, immigration is arguably one
of the reasons that crime rates have dropped in the United States over the
past decade and a half.” Id.at 14.

Rachel Rosenbloom, Senseless Deportations, Wash. Post, March 25, 2007, at B7.

A v a i l a b l e a t : h t t p : / / w w w . w a s h i n g t o n p o s t . c om / w p –
dyn/content/article/2007/03/23/AR2007032301590.html

“The Child Citizen Protection Act, sponsored by Rep. Jose Serrano (D-N.Y.),
would allow immigration judges, when deciding whether to deport parents, to
consider the interests of children who are U.S. citizens.”

“Studies by professors at Harvard and the University of California have
shown that immigrants commit crimes at lower rates than do native-born
Americans. And in many cases, those who do run into trouble with the law —
often in their teens or early 20s — go on to become productive members of
their communities.”

“It is hard to see the rationale behind our inflexible deportation laws given
that last year, according to news reports, 12 percent of new Army recruits
had criminal records including felonies or serious misdemeanors such as
aggravated assault and vehicular homicide.”

Robert J. Sampson, Open Doors Don’t Invite Criminals, N.Y. Times, March 11, 2006, at
A15.

Discussing studies showing that immigrants form stable, non-violent
communities.

Evidence points to increased immigration as a major factor associated with
the lower crime rate of the 1990’s (and its recent leveling off).

Living in a neighborhood of concentrated immigration is directly associated
with lower violence.

Tim Schepers, Does the Punishment Fit the Crime? U.S. Alien Deportation and the
Requirement of Acceptance in Jama v. I.N.S., 28 Hamline L. Rev. 387 (2005).
Arguing that U.S. alien-removal procedure requires nothing less than the
assent of a removal country because such a process upholds congressional
intent, maintains the moral character of U.S. foreign policy, and recognizes
a human beings right to even-handed, safe treatment.

Anne E. Blanchard & Kristen Gartman Rogers, Presumptively Unreasonable: Using the
Sentencing Commission’s Words to Attack the Advisory Guidelines, The Champion, March
2005, at 24.

“The presence of [fast-track] programs in some districts, and their absence
from neighboring districts, could lead to disparate sentencing outcomes for
offenders convicted of similar conduct.” Id. at 27.

“Practitioners in districts that do not have fast-track programs have a
powerful argument that a sentence within the advisory guideline range in
unreasonable when similarly-situated offenders in fast-track districts routinely
receive sentences well below the range.” Id. at 28.

“Practitioners whose clients plead guilty and waive procedural rights similar
to the rights waived by offenders who benefit from formal fast-track programs
can argue that a sentence four levels below the range recommended by the
advisory guidelines is a presumptively reasonable sentence.” Id. at 28.

Karen C. Turnlin, Suspect First: How Terrorism Policy Is Reshaping Immigration Policy, 92
Cal. L. Rev. 1173 (2004).

Arguing that since 9/11, few immigration policies have been created without
terrorism policy in mind, which has led to immigration policy existing largely
as a means of fighting terrorism.

“Several Department of Justice post-9/11 policies explicitly employ
immigration-plus profiling to impose greater scrutiny and selective
enforcement of immigration laws on certain groups of immigrants.” Id. at
1185.

Nora V. Demleitner, Smart Public Policy: Replacing Imprisonment with Targeted Nonprison
Sentences and Collateral Sanctions, 58 Stan. L. Rev. 338 (2005).

“Noncitizens should not be automatically precluded from participation in
intermediate sentences. They may be particularly suited for custodial confinement or an enhanced
supervision program.” Id. at 353.

Bill Ong Hing, Deporting Our Souls and Defending Our Immigrants, Amerasia Journal, Vol.
31, Issue 3 (2005).

Explores how criminality can lead to the deportation of Asian Americans who
have grown up in the U.S. and argues that the nation ought to be looking at
alternatives to deportation.

Amy Baron-Evans, Sentencing Resource Counsel, Enforcing the New Sentencing Law:
Advanced Federal Criminal Appellate Practice Seminar, March 2006.

“Independent of mandatory minimums, the Guidelines account for 25% of the
more than . . . tripling of immigration offense sentences.” Id.at 11.

“The ranges under §2L1.2 for unlawfully entering or remaining were
increased four times, the most significant of which was the 16-level increase
for re-entry after an aggravated felony. That 16-level increase, the steepest

increase in the Guidelines Manual, was not required by Congress, not
supported by data or research, and was not explained.” Id.at 16.

“The real evidence of the undue severity of the immigration guidelines is that
for many years, they have been rarely applied. Judges and prosecutors have
avoided the harshness of the immigration guidelines through “fast track”
charge bargaining and departures. Average sentence length under § 2L1.2
decreased from 36 months in 2000 to 35 months in 2001 to 30 months in
2002 to 28 months in 2003 to 29 months in 2004 to 27 months in 2005. The
highest departure rates by district are due to fast track programs, and the
guidelines have been unsuccessful in reducing inter-judge disparity in
immigration cases.” Id.at 16.

“In districts without fast track programs, defendants are receiving sentences
double or more the average in cases sentenced under § 2L1.2, because they
are among the twenty or so percent who happen to get arrested in a district
without a fast track program.” Id.at 16.

Linda Drazga Maxfield & Keri Burchfield, Immigration Offenses Involving Unlawful Entry:
Is Federal Practice Comparable Across Districts?, 14 Fed. Sent. Rep. 260, 2002 WL
31304861 (Mar. Apr. 2002).

Discussing 1998 empirical study by Commission researchers finding that the
government’s use of fast track charge bargains and departures created
unwarranted disparity because shorter sentences were unavailable to all
similarly situated defendants.

For example, in three fast-track districts, defendants with five prior
convictions and two prior deportations received an average sentence of 32
months, far lower than the guideline range applicable to a defendant with only
one prior conviction and one prior deportation in a district that does not have
a fast-track policy in place.

Kristin F. Butcher & Anne Morrison Piehl, Cross-City Evidence on the Relationship Between
Immigration and Crime, Journal of Policy Analysis and Management, Vol. 17, No. 3 (1998).
Concluding from statistical analysis that recent immigrants appear to have no
effect on crime rates and that youth born abroad are statistically significantly
less likely than native-born youth to be criminally active.

Kristin F. Butcher & Anne Morrison Piehl, Recent Immigrants: Unexpected Implications for
Crime and Incarceration, 51 Indus. & Lab. Rel. Rev. 654 (1998).

Study conducted extensive analysis of “institutionalization” of immigrant
groups as compared to “native” groups. Institutionalization primarily
indicated incarceration but also included residence at mental hospitals and
other long-term care facilities. Id.at 656.

As a fraction of the population, the incarceration rates between native and
immigrant residents were as follows — 1980: native-born (0.0135), immigrant
(0.0069); 1990: native-born (0.0216), immigrant (0.0149) Id.at 659.

Concluded that “the rate of institutionalization in the United States in 1980
and 1990 was lower among immigrants than the native born. When controls
are included for characteristics that correlate with labor market opportunities
and criminal justice enforcement intensity, institutionalization rates are much
lower for immigrants than for natives.” Id.at 677.

Calculated that “if natives had the same institutionalization probabilities as
immigrants, our jails and prisons would have one-third fewer inmates.” Id.at
677.

Fox Butterfield, Study Finds 2.6% Increase In U.S. Prison Population, New York Times,
July 28, 2003.

Noting that it “was not illogical for the prison population to go up even when
the crime rate goes down” because some victimless crimes—including drug
crimes and immigration offenses—are not counted in the FBI’s annual report
on the crime rate.

Suzanne Gamboa, ICE Considers Tracking Deportation Volunteers; Ankle Devices an
Option for the Time Before Travel, Houston Chronicle, August 1, 2008.
Discussing ICE program allowing people (in five cities only) approximately
one month in 2008 to arrange to leave the country if they have ignored
deportation orders and have not committed crime. Notes that “about 450,000
people have deportation orders and have not committed crimes, said ICE
spokesman Richard Rocha.”

Jon M. Sands and Robert J. McWhirter, Does the Punishment Fit the Crime? A Defense
Perspective on Sentencing in Aggravated Felon Re-Entry Cases, 8 Fed. Sent. R. 275, 1996
WL 671556 (March/April 1996).

Discussing the development of the immigrant reentry sentencing guidelines
provision (USSG § 2L1.2) from its inception through the 1995 amendments.
When this provision was originally promulgated, the base offense level was
6. Later amendments brought several changes (most notably the 16-level
increase) which lack reason and sound basis.

Regarding the drastic 16-level increase, the authors note that the
Commission “did no study to determine if such sentences were
necessary—or desirable from any penal theory. Indeed, no research
supports such a drastic upheaval.”

Jon M. Sands and Jane L. McClellan, Federal Sentencing Guidelines and the Policy
Paradox of Early Disposition Programs: A Primer on “Fast-track” Sentences, 38 Ariz. St.
L. J. 517 (Summer 2006).

Reviewing the increase in percentage of immigration prosecutions
nationwide, the development of USSG § 2L1.2, the evolving meaning of the
term “aggravated felony,” and the history of the Commission’s implementation
of the 16-level increase to the base offense level for illegal reentry.

Discussing sentencing strategy post-PROTECT Act, including how to argue
in favor of sentencing reductions based on unwarranted disparity. The
authors offer a brief historical overview of fast-track programs and
bibliographic references.

Sandra Guerra Thompson, Immigration Law and Long-Tern Residents: A Missing Chapter
In American Criminal Law, 5 Ohio St. J. Crim. L. 645 (Spring 2008).
Reviewing statistics concerning the rise of persons incarcerated for
immigration crimes.

“Apparently, the federal government may indeed be on a campaign to
increase the size of the federal system to accommodate the scores of
undocumented persons being convicted of immigration crimes. The Bureau
of Justice Statistics reports that from 1995 to 2003, the number of people in
prisons who were sentenced for immigration offenses grew 394% from 3420
to 16,903. At present, prisoners in the Federal Bureau of Prisons under
sentence for immigration offenses comprise 11.2% of the total inmate
population or 20,970 of the 187,241 people in federal prisons. As of 2004,
immigration crimes ‘represent the single largest group of all federal
prosecutions, about one third (32%) of the total.’ By contrast, drugs comprise
27%, and weapons cases account for only 9%.”

Also makes the case for continuing need to increase communication between
the criminal defense bar and immigration attorneys.

Raquel Aldana, Of Katz and “Aliens”: Privacy Expectations and the Immigration Raids, 41
U.C. Davis L. Rev. 1081 (Feb. 2008)

Addressing Fourth Amendment’s lack of protection to immigrants, the author
examines immigrants’ privacy rights, and “concludes by urging courts to
reconsider reliance on immigrants’ unlawful presence in the U.S. to excuse
law enforcement abuses and offers several legal and policy reasons in favor
of privacy protection for noncitizens.”

Discussing how criminal prosecutions and punishments have increased over
time, and how civil immigration enforcement has become more punitive.

Describing benefits undocumented immigrants bring to US society, citing
farming industry as one example: “Consider agriculture, for example. The
United States’ annual farm subsidies, combined with free trade agreements
with most Latin American nations and a cheap supply of foreign agricultural
workers on U.S. farms, have slowed down farm production in Latin America,
displaced farmers from their homes and into the United States, and
increased produce importation and profits for U.S. farmers.”
The Pew Hispanic Center publishes reports and fact sheets on a number of topics,
including immigration, regarding Latino communities. These can be found at
http://pewhispanic.org. Two fact sheets concerning undocumented immigrants and their
contributions to the United States are:

Estimates of the Unauthorized Migrant Population for States based on the
March 2005 CPS (April 26, 2006):

Estimates how many unauthorized immigrants there were in each state
during this timeperiod; can be used to request fast-track programs or
variances in areas which do not have these programs, but have very high
immigrant populations.

The Labor Force Status of Short-Term Unauthorized Workers (April 13,
2006) (shows percentage of US workforce comprised by people in this group,
and other relevant statistics):

This fact sheet states: “The estimates show that there are a total of 7.2
million unauthorized workers in the U.S. and more than 2.5 million of them,
or 35 percent, arrived between 2000 and 2005. Unauthorized workers as a
whole make up nearly 5% of the U.S. labor force. Short-term unauthorized
migrants account for just under 2%. The short-term unauthorized are
concentrated in a few sectors of the economy. More than a million are
employed in the construction and hospitality industries. Examining
employment data by occupations produces a similar picture. More than half
of all short-term unauthorized migrants are employed in two occupational
categories: construction and services. The latter category encompasses a
broad range of jobs generally involving services to individuals such as
waiters, janitors, police officers and dental assistants.”