Equal Justice

• Date: 01 December 2018
• Published date: 01 December 2018
• DOI: 10.1177/0734016817742474
• Author: Melanie M. Holland
• Subject Matter: Articles

Article

Equal Justice: Examining the

Effects of Citizenship,

Documentation Status, and

Country of Origin on Carceral

Punishment Across Federal Districts

Melanie M. Holland

1

Abstract

Empirical analysis of the disproportionate application of carceral punishment has traditionally tar-

geted race and class inequality while omitting noncitizens as a systematically disadvantaged popu-

lation within the criminal justice system. Of the limited extant literature on this issue, nearly all have

examined overall incarceration odds while failing to account for prison alternative eligibility, inac-

curately measuring judicial discretion. Likewise, none have disaggregated noncitizens across

nationality, an oversight that implicitly assuming that all noncitizens are equal recipients of dis-

crimination, likely suppressing noncitizen disadvantage. Finally, these studies often fail to include

contextual measures in their analyses. Using data from the U.S. Sentencing Commission (USSC)’s

Monitoring of Federal Sentences from 1999 to 2013, this study examines case-, district-, and cross-

level effects of citizenship status, documentation status, and nationality on incarceration odds, prison

alternatives, and sentence length for federal drug offenders. The results of this study support the

hypothesis that noncitizens receive more severe sentencing outcomes than U.S. citizens, Mexican

noncitizens receive more severe outcomes compared to those from other countries, and undo-

cumented noncitizens receive more punitive outcomes, though these findings vary across districts.

However, counter to minority threat theory, noncitizen (offender) populations do not appear to

influence incarceration outcomes for noncitizen offenders in the projected direction.

Keywords

sentencing, courts/law, inequality and crime, other, race and crime/justice, other, quantitative

methods, other, legal issues

Immigration concerns have yet again reached volatile levels within societal discourse, infiltrating

politics, the media, and even entertainment (Sowards & Pineda, 2013). This modern eruption of

immigration controversy, while analogous to prece ding ones regarding economic, cultural, and

1

Pennsylvania State University, Altoona, PA, USA

Corresponding Author:

Melanie M. Holland, Pennsylvania State University, Altoona, PA 16601, USA.

Email: mzh68@psu.edu

Criminal Justice Review

2018, Vol. 43(4) 419-439

ª2017 Georgia State University

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DOI: 10.1177/0734016817742474

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criminogenic themes, has surpassed its predecessors in sheer magnit ude with larger turnouts at

rallies and protests as well as increased media coverage (Sowards & Pineda, 2013). Considering

the ubiquity of immigration discourse, related rhetoric risks influencing attitudes and responses

toward noncitizens throughout various institutions, including the criminal justice system. Unfortu-

nately, courtroom actors do not think within a sociological vacuum but rather are situated within the

context of the social, historical, and cultural and are therefore in jeopardy of inadvertently or

blatantly using carceral punishment as a means of reasserting formal control over noncitizens.

Although the resulting depictions of those entering the country are varied and often competing,

the prevailing immigrant narrative is not a flattering one. Noncitizens are increasingly depicted as a

danger to the economy, national security, and public safety (Citrin, Green, Muste, & Wong, 1997;

Demleitner & Sands, 2002; Stacey, Carbone-Lo´pez, & Rosenfeld, 2011). Among other stereotypes,

noncitizens are often portrayed as inherently criminogenic, frequently associated with drug lords and

mafia kingpins (Vaughn, Salas-Wright, DeLisi, & Maynard, 2014). This association persists in spite

of findings that noncitizens appear to commit far fewer crimes compared to U.S. citizens, either out

of fear of deportation or cultural armamentarium, a concept known as the immigrant paradox

(Vaughn et al., 2014). In actuality, assimilation and acculturation seem to increase, rather than

reduce, crime among foreign-born populations (Alvarez-Rivera, Nobles, & Lersch, 2014). These

often inaccurate narratives of the criminal immigrant promote apprehension and fear while further

increasing punitiveness toward this demographic.

The association between noncitizens and criminality is further perpetuated in common vernacular

referring to undocumented noncitizens as “illegal aliens.” This terminology proliferates crimino-

genic associations while simultaneously “othering” this population. Furthermore, imagery of “the

illegal immigrant” is implicitly, and often unabashedly, applied to all immigrants (Flores, 2003),

neglecting to acknowledge the migration of numerous documented noncitizens. As of 2012, only

3.5%of the U.S. population consisted of unauthorized immigrants, representing only 26%of the

foreign-born population (Passel & Cohn, 2014). Due to the copious application of this label, con-

temporary stereotypes of noncitizens fail to concede important distinctions within the broader social

issue of immigration.

Further contributing to the homogenization of the noncitizen narrative is the extent to which

immigrant has become synonymous with Hispanic, an often misleading association (Chan, 2013).

Focusing solely on Hispanic migration to the United States distorts the unique nuances of population

changes across various ethnic group (Chan, 2013; Morı´n, 2009). In 2010, more than 12%of the

foreign-born population in the United States were from Europe, 53%were of Latin America and

North American decent, 28%were Asian, and almost 5%arrived from other localities (Grieco et al.,

2012). It is essential that subsequent empirical research examining crime and punishment among

noncitizens incorporate ethnicity and country of origin.

Unfortunately, the effects of the current immigrant narrative are not relegated to innocuous

discourse but rather permeate numerous institutions resulting in tangible consequences. Nonciti-

zens are perceived as inherently criminogenic, assumed to be undocumented, and consolidated

into one ethnicity. As a result, they suffer from housing and employment discrimination, elevated

levels of poverty, linguistic profiling, and hypersegregation (Massey, 2007; Vaughn et al., 2014).

The effects of citizenship status have not yet been thoroughly examined within the criminal justice

system. This is not to imply that noncitizens have been entirely omitted from criminological

analysis, but rather that the existing literature seems to suffer from a limitation similar in nature

to that of the existing immigrant narrative: that immigrants are a singularity. In doing so, distinc-

tions across ethnicity and documentation status have been neglected. This study endeavors to

rectify this omission by deconstructing the immigrant narrative in the examination of the effects of

noncitizenship, documentation status, and country of origin on decisions to incarcerate as well as

sentence length outcomes.

420 Criminal Justice Review 43(4)