Of crime and punishment

Ryan King
Associate Professor of Sociology


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In the U.S. justice system, noncitizens regularly receive harsher punishments than citizens for the same crimes. Ryan King, associate professor of sociology, outlines this serious civil rights issue.


If you were to enroll in an Introduction to Corrections class at just about any college or university this year, I’d place good money that two trends in American corrections will be mentioned on day one. 

First is the 500 percent increase in the incarcerated population since 1980, and second is that African Americans — a demographic group that constitutes 13 percent of the population — makes up nearly 40 percent of the prison population. This racial disparity is so strong that Michelle Alexander, an Ohio State law professor, has dubbed this the "new Jim Crow era," and Attorney General Eric Holder calls racial disparity in prisons a “pressing civil rights issue.”

Attention to each of these issues is hugely important and probably long overdue, yet there is a third story bound up with mass incarceration that has flown under the radar and may also have civil rights implications: the treatment of noncitizens in the justice system.

Harsher punishments

When it comes to immigrants in the justice system, we usually think of deportation. Yet thousands of immigrants who commit crimes are not deported; they are processed just like American citizens in the federal courts, where in theory they are afforded the same due process protections as citizens and should be punished just the same. But are they?

A cursory look at some numbers suggests that immigrants have been punished more harshly during the past two decades.

As illustrated in Figure 1 below, the percentage of immigrants sentenced in the federal courts has risen in near linear fashion since the early 1990s. By the start of this decade, immigrants constituted half of all offenders sentenced in U.S. federal court, a trajectory that outpaced any other demographic group.

Yet this trend is merely suggestive, and my colleagues Michael Light from Purdue University and Michael Massoglia from the University of Wisconsin looked deeper into the federal data to answer a few straightforward questions.

First, are noncitizens treated differently for the same crime? Second, do we see changes in the treatment of noncitizens over time? And third, are noncitizens subject to particularly harsh treatment in districts that are popular immigrant destinations? The answers are yes, yes and yes.

To add some specifics, we find that noncitizens — especially undocumented immigrants — receive significantly harsher penalties at sentencing than U.S. citizens. For example, in 2008, 96 percent of convicted noncitizens received a prison sentence, compared to 85 percent of citizens. 

Possible explanations 

One plausible explanation for this sentencing gap is that noncitizens, on average, commit more serious crimes or have more severe criminal histories. However, the sentencing difference persists even after we account for these and other factors. Further, we found that among those who are imprisoned, noncitizens received an additional three to four months of prison time.

Citizenship is also more consequential today than it was two decades ago, a finding that holds for both legal and undocumented immigrants. For example, in 1992, the odds that a noncitizen would be incarcerated by a federal judge were roughly two times higher than a citizen. By 2008, the odds were more than four times higher. 

The nature of crimes committed by noncitizens has not changed appreciably, and hence we suspect that a vitriolic political discourse and more fervent anti-immigrant sentiment have seeped into judicial decision-making.

Finally, the sentencing gap was most pronounced in federal districts that had experienced a recent influx of noncitizens into the area. This suggests that part of the increased punitiveness against noncitizens in recent decades can be linked to judicial responses to the changing demography of their districts.

What does the future hold for noncitizens in the justice system? The answer may depend on which way the political winds blow. But one thing is certain for now: Immigrants may commit fewer crimes per capita compared to their citizen counterparts, but they are treated more harshly if they’re caught.

Header image credit: "Behind Bars" by freeimages.com user nickobec


About the author

Ryan King
Ryan King - king.2065@osu.edu
Associate Professor of Sociology

Ryan D. King is an associate professor of sociology and affiliate of the Criminal Justice Research Center at Ohio State. He writes about crime, law and intergroup conflict.

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