Abstract
Judges reveal how blatantly noncitizen offenders receive double punishments: one for their crime and one for their immigrant status.
Keywords
In 1991, Peter Onwuemene, a Nigerian citizen, received a 12-month prison sentence in a U.S. district court for his part in an insurance fraud scheme—a punishment at the top of the sentencing range. In justifying the higher sentence, the district judge told Peter “You are not a citizen of this country. This country was good enough to allow you to come in here to confer upon you… a number of the benefits of this society, form of government, and its opportunities and you repay that kindness by committing a crime like this. We have got enough criminals in the United States without importing any.”
In that year, Peter was one of roughly 7,000 non-U.S. citizens sentenced in U.S. federal courts. Over the next two decades, in large part due to the increasing criminalization of immigration, over 450,000 non-U.S. citizens would be punished in U.S. federal courts, dramatically transforming the composition of the federal docket. According to data from the U.S. Sentencing Commission, in 1991 noncitizens represented barely over 20% of all federal sentencings. By 2011, the 40,000 or so noncitizen offenders made-up nearly half (48%) of all federal cases.
The U.S. is not alone in this trend. According to the Annual Penal Statistics collected by the Council of Europe, the dramatic increase of incarcerated foreigners is characteristic of many Western countries. In Germany, the noncitizen incarceration rate nearly tripled between 1985 and 2011 while the overall incarceration rate remained relatively stable. In Italy and Spain, roughly one out of three prisoners are foreign nationals. Noncitizens in Austria and Belgium make up approximately 45% of all prisoners, and comprise well over half of the prison populations in Cyprus (54%), Greece (63%), Luxembourg (69%), and Switzerland (71%). In total, throughout the European Union foreigners represent 22% of all prisoners, but less than 7% of the total population.
“Is there an annoyance because some of these criminals are basically biting the hand that feeds them? Yes.”
As more and more people like Onwuemene are crossing national boundaries and finding themselves ensnared by the criminal justice system, it is important to ask whether noncitizens receive equal justice under the law. To help answer this question my colleagues and I undertook a series of research projects using court records and interviews with judges in both the United States and Germany. These countries were chosen, in part, because they are both advanced Western democracies with strong legal protections for criminal defendants but noticeably different conceptions of citizenship, which provides a useful comparison for understanding the legal treatment of noncitizens. While citizenship in the United States has long been granted as a birth right to all those born on American soil, for decades Germany was one of the few Western countries that granted citizenship mainly through ethnic descent. That is, one must be born to parents who are ethnically German to be granted German citizenship at birth, not simply born within Germany. While Germany has loosened its citizenship policies in recent years, the American and German views on nationality still differ greatly, providing a test as to whether noncitizens receive equal justice in countries with different views on citizenship.
Where judges have discretion in sentencing, they are encouraged to consider the contexts of crimes. For immigrants and noncitizens, that could be a distinct disadvantage.
Phil Roeder, Flickr Creative Commons
In both the U.S. and Germany, our research suggests they do not receive equal justice—noncitizens tend to be given harsher penalties than comparable citizen offenders. In the U.S., even after taking into account a variety of case characteristics, foreigners still receive additional months of incarceration compared to U.S. citizens, and this observed “citizenship penalty” is not reserved for one particular group of noncitizens, but rather is observed for nearly all groups who fall outside the community of national membership. This includes White noncitizens, suggesting that these effects are not simply reflections of familiar patterns of racial or ethnic inequality.
To some judges, foreigners’ cultural differences were viewed as a hurdle for successfully completing rehabilitation.
In Germany too, there is an equally pronounced “citizenship penalty,” resulting in added prison time for EU and non-EU immigrants alike. When combined with the U.S. findings, this suggests that national membership may be an emerging mechanism of legal inequality, both here and abroad. It is important to note that these analyses are limited to only offenses that apply to both citizens and noncitizens (e.g., violence, drugs, etc.), suggesting that the punitive turn in migration control stretches well beyond border crimes.
Judging Noncitizens
It’s one thing to document disparity between groups, and quite another to demonstrate the reasons for why noncitizens are receiving harsher penalties. One possibility is that citizenship is a legally relevant consideration at sentencing. However, dating back to 1886 in Yick Wo v. Hopkins, the U.S. Supreme Court has consistently held that noncitizens are entitled to equal protection under the 14th Amendment’s guarantee to due process. Similarly, in 1990, the German Federal Supreme Court declared that the constitution does not allow for differential punishment based on citizenship.
At an Occupy4Prisoners protest in Oakland, CA, justice and sentencing reform are top priorities.
Daniel Arauz, Flickr Creative Commons
Another possibility, which has received limited scholarly attention, is that national membership itself may be an important status at sentencing. In other words, independent of other case characteristics, noncitizens may be seen as more deserving of harsher punishment in criminal courts. In his influential work on the plight of immigrants, Abdelmalek Sayad’s discussion of “double punishment” captures this idea: “The fact of being an immigrant delinquent constitutes, as a general rule, something of an aggravating circumstance… All immigrant behavior, and especially deviant behavior, has repercussions on the phenomenon of immigration itself, and leads to greater disapproval, greater disqualification, and greater stigmatization.” In line with this view, a common theme that came up among judges in both countries was that they resented that noncitizens would compound their immigrant status with criminal behavior.
Resentment Toward Immigrant-Criminals
Many of the judges resented that immigrants would commit crimes in their new countries. This was often viewed as a violation of generosity. As a German judge told me, “When I give reasons for the judgment I would certainly say that in some way it is objectionable to abuse the right of hospitality in order to take advantage of the benefits and then to commit crimes in addition… if it was the case I would punish it more severely.” Or a U.S. judge who said “Is there an annoyance because some of these criminals are basically biting the hand that feeds them? Yes.” In several instances, judges argued that such views of immigrants were legitimate concerns that should be factored into the sentencing decision. For these judges, immigrants were seen to have an additional obligation to obey the law and when they didn’t, their crimes were viewed as worse than those committed by citizens. For example, a German judge told me “the thinking that you come to Germany, receive benefits and then commit a crime. That this comes extra on top of things I can well imagine that it has an impact. I wouldn’t want to avoid that. I would think of it as understandable.” Similarly, a U.S. judge said to me “I certainly can understand that as a view and, you know, there is something to be said for that; you come to my country, my birthplace, the land that I love and I’ve sworn to uphold and protect, and what do you do here? You commit crimes, and some of these crimes are absolutely devastating to American citizens. So I don’t think there’s anything wrong with that sentiment…So is that worse than an American citizen who does it? I certainly wouldn’t chastise the person who concluded that that was the case.”
It is important to acknowledge the role of the broader community in any effort to deter future crimes among foreign groups.
The scales of justice feature prominently in American iconography. That they are so frequently tipped is a surprise to many.
John Lodder, Flickr Creative Commons
These views of immigrants also influenced how judges considered mitigating circumstances at sentencing, such as the defendant’s childhood. Most of the judges I interviewed discussed poor upbringing as an important factor that may lessen punishment. However, poor upbringing among foreign offenders was not always looked upon with equal empathy. In fact, in some instances it appeared to make matters worse. As one U.S. judge put it, “Invariably, the Armenians and some of the Russian immigrants will tell me a story of their childhood and how oppressive it was living under some of those totalitarian governments and how they wanted to come to the United States for a much better life. Well, and I’m thinking to myself, then why are you screwing the country that’s saving you, which has rescued you…? It actually pisses me off.”
Foreign offenders receive a “double punishment”—one for their crime and one for their immigrant status.
At the Margins of Society
Judges also discussed what they saw as foreigners’ poor social and economic integration and how these factors influenced their decision-making. For one, without legitimate prospects for the future, some judges saw little chance for successful reintegration for foreign defendants. As a result, they were more likely to consider prison sentences. As a German judge put it “Foreigners don’t have a permanent residence here or any social bonds so it would be harder for them to receive suspension of imprisonment compared to Germans….” Second, with few ties to society, foreign offenders were often viewed as flight risks. A German judge explained, “When somebody goes to Turkey; he can prove his identity there and stay in the country because he also has the Turkish citizenship. If he got many years [in prison], of course there are less chances for the suspension of imprisonment because he has an option to disappear and stay somewhere else legally. And I can’t discriminate against the natives because of that.”
Cultural Divides
In other instances, judges sometimes saw cultural differences among foreign offenders that affected their sentencing decisions. As one U.S. judge told me, “Now one of the things I’ve noticed from a lot of the Hispanic illegal aliens that I find here… they don’t seems to have a great deal of problem in beating up their women, and that bothers me… It just seems to be a cultural thing I keep encountering… So if this is your way of life, I’m probably gonna hurt you.” Such views also sometimes influenced whether judges considered non-prison options. For some judges, foreigners’ cultural differences were viewed as a hurdle for successfully completing rehabilitation. A German judge stated, “Staying in a facility like that is very difficult for foreigners, because they don’t want to submit themselves to the rules, all of the sudden no drugs, no tobacco, and no alcohol and only tea and doing real work for eight hours per day.”
Even proud “immigrant nations” struggle with punishing the crimes of citizens and noncitizens.
Daniel X. O’Neil, Flickr Creative Commons
For other judges, when criminal enterprises appeared to be embedded in cultural practices, it was felt that a message needed to be sent to immigrant communities. For them, it is important to acknowledge the role of the broader community in an effort to deter future crimes among foreign groups. As a U.S. judge told me, “For example, Russian immigrants, Armenians, look at the U.S. Treasury as their personal piggy bank. And I’ve noticed that they will engage in all manner of fraud against the government… It looks like half the community… and it’s gotten to the point where, yeah, now it’s gotten my attention… And we [judges] also look at it in terms of communities…I really do think about the deterrent effect that the message needs to be sent. This isn’t acceptable.”
The New Face of Legal Inequality
Together, these interviews help illustrate the “double punishment” foreign offenders receive—one for their crime and one for their immigrant status. Like the case involving Peter Onwuemene, judges sometimes view the crimes committed by noncitizen offenders as deserving greater punishment. While Peter was fortunate enough to have his sentence overturned on appeal, very few cases are ever successfully appealed for sentencing related issues, and it seems clear that there is a lot of overlap between the reasons justifying the increased punishment for Peter and many of the other foreign offenders discussed by U.S. and German judges. As international migration is becoming a permanent feature of many Western societies, these findings offer important lessons for understanding the future of inequality under the law.
For one, it calls for a more international orientation to our understanding of legal inequality. While issues of racial disparities in the criminal justice system have featured prominently in public, political, and scholarly discourse, our research clearly demonstrates that national membership plays an important and independent role at criminal sentencing. As such, our research suggests a broader view of legal inequality is needed, one that includes national membership right alongside factors that have dominated conversations on disparities in the criminal justice system, such as race, class, gender. As international migration increases, the central axes of legal inequality may be shifting from internal societal divisions to divisions between state and non-state members. Just as research had consistently demonstrated the difference between “law on the books” and “law in action” when it comes to Whites and Blacks in the criminal justice system, an equally important gap appears to be emerging between citizens and noncitizens. Focusing attention to the ground-level practices that lead to citizenship inequality is key to understanding these disparities and hopefully, in the process, help identify solutions for ensuring everyone receives equal protection of the law.