Citizenship Status, Race, Ethnicity, and Their Effects on Sentencing [1 ed.] 9781593326838, 9781593324629

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Criminal Justice Recent Scholarship

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Edited by Marilyn McShane and Frank P. Williams III

A Series from LFB Scholarly

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Citizenship Status, Race, Ethnicity, and their Effects on Sentencing

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Jawjeong Wu

LFB Scholarly Publishing LLC El Paso 2011

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Wu, Jawjeong. Citizenship status, race, ethnicity, and their effects on sentencing / Jawjeong Wu. p. cm. Includes bibliographical references and index. ISBN 978-1-59332-462-9 (casebound : alk. paper) 1. Sentences (Criminal procedure)--United States. 2. Citizenship-United States. 3. Minorities--Legal status, laws, etc.--United States. 4. Critical legal studies--United States. I. Title. KF9685.W8 2011 345.73'0772--dc22 2011011074

ISBN 978-1-59332-462-9 Printed on acid-free 250-year-life paper. Manufactured in the United States of America.

Table of Contents

Acknowledgements..............................................................................vii CHAPTER 1 Citizenship Status and Sentencing ..................................................1 CHAPTER 2 Federal Sentencing Guidelines .....................................................19 CHAPTER 3 Theoretical Perspectives and Review of Research........................43 CHAPTER 4 Data and Research Methodology..................................................81 CHAPTER 5 Statistical Analysis and Findings ................................................ 113 CHAPTER 6 Linking Empirical Findings to Theories ..................................... 155

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CHAPTER 7 Conclusions and Implications..................................................... 173 Appendices ........................................................................................ 177 Bibliography ...................................................................................... 181 Index .................................................................................................. 203 v

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Acknowledgements

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A number of people have supported me to complete this work. I would first like to thank Drs. Miriam DeLone, Pauline Brennan, Chris Marshall, and Gary Marshall for their intellectual guidance and advice. Without their inspiration, encouragement, and input, I would not have achieved this goal. Special thanks go to Dr. Cassia Spohn for sparking my research interest in courts and criminal sentencing, as well as ideas for this work. I also want to express my thanks to my colleagues at the University of Nebraska at Omaha, Brett Garland, Dae-Young Kim, Bill McCarty, Ling Ren, and Ruohui Zhao, for the sharing of their experiences in writing scholarly work. Thank Anna Hoyt for helping me proofread this book. My great appreciation also goes to my loving family members, who have given me unconditional love and encouragement in pursuit of academic accomplishment. I would like to dedicate this book to my dad, my mom, my brother’s family, my wife, and my son. I would also like to dedicate this book to my sister, who is in heaven with the Lord. Finally, and more importantly, the completion of this work would never have been possible without the blessing of the Lord. His unfailing love and care gave me energy and strength to stay confident.

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CHAPTER 1

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Citizenship Status and Sentencing

Federal Sentencing Guidelines have guided federal judges’ sentencing decisions since their advent in 1987. The primary goal of Federal Sentencing Guidelines is to create equal justice for similarly situated offenders without extralegal factors interfering with the severity/leniency of the sentence. Sentencing Guidelines provide little room for federal judges to sentence a defendant via the exercise of their discretionary powers. The Guidelines’ structure uses a rigid sentencing grid, with criminal history and the seriousness of the offense as the horizontal and vertical axes to produce a presumptive Guidelines range for judges’ application. In principle, judges are bound to sentence an offender within the Guidelines range, but judges may mete out a sentence below or above the Guidelines range if reasons are provided (USSC §5K1.1 & §5K2.0, 2005). Differential sentences stemming from the Guidelines’ structure have been characterized as reflecting warranted disparity and unwarranted disparity. Warranted disparity is described as differential sentences accounted for by differences in the seriousness of the offense and an offender’s criminal history. In contrast, unwarranted disparity refers to differences in sentencing outcomes among similarly situated offenders due to the exercise of extralegal factors, which mainly involve the offender’s demographic characteristics. Unwarranted disparity in judicial decision making has long been an issue of concern for researchers in the sentencing field. In general, social science research reveals that judges base their sentencing decisions largely on legally relevant factors. However, such factors do not explain all variation in criminal sentencing. Sentencing decisions stemming from the consideration of offender characteristics, which are 1

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viewed as legally irrelevant, are not justified in regards to the goals of the Federal Sentencing Guidelines. The use of legally irrelevant factors results in unwarranted disparity, thus raising questions about fairness and equity in the sentencing process. However, legally irrelevant factors, such as race, gender, age, and employment status, continue to impact modern sentencing (Chiricos & Bales, 1991; Daly & Bordt, 1995; Nobiling, Spohn, & DeLone, 1998; Spohn, 2000; Steffensmeier, Kramer, & Ulmer, 1995; Steffensmeier & Motivans, 2000). Researchers also cast doubt over the extent to which federal and state guidelines help to reduce the influence of legally irrelevant factors.1 Past research on unwarranted disparity has focused almost exclusively on the extent to which race, gender, age, and unemployment independently and jointly affect sentencing outcomes. These studies analyze data from both state and federal courts. Spohn (2000) in her evaluation of thirty-years of sentencing reform reviewed forty studies that examined the relationship between race and sentencing. According to Spohn’s (2000) review, 74 out of 167 federal and state estimates (or 44.3%) from these studies showed that minorities were sentenced more severely than Whites. She also found that when racial/ethnic minorities were young, male, and unemployed, the likelihood of receiving severe sentences was higher for them than for Whites. In addition, Mitchell (2005) conducted a comprehensive review of seventy-one studies by employing a meta-analytic methodology to assess the effect of race on several types of sentencing

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For example, Albonetti (1997) assessed the effects of legally irrelevant factors on sentencing outcomes with the 1991-1992 federal sentencing data for drug offenses. The 1991-1992 data set is considered appropriate for assessing the extent to which unwarranted disparities were reduced during the post-guideline era. Findings of this study indicate that despite the enactment of Federal Sentencing Guidelines in 1987, legally irrelevant factors, such as race/ethnicity, gender, education, and citizenship status, continue to affect the likelihood of incarceration and sentence length. Similar results can be found in Albonetti’s (2002) later investigation of substantial assistance departures. Other research suggests that although legally irrelevant variables still play a role, their effects vary across district courts (Kautt, 2002). The above findings raise questions about the degree to which the Federal Guidelines have been able to eliminate unwarranted disparities in sentencing (for a review, see USSC, 2004).

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decisions. Based on this meta-analysis, he concluded that, overall, Black offenders were treated more harshly than similarly situated White offenders. Regarding gender, Daly and Bordt (1995) identified twenty-eight gender-centered and twenty-two nongender-centered studies produced prior to the mid-1990s. These studies, examining either race or gender, analyzed data from both state and federal courts. According to Daly and Bordt’s (1995) review, a substantial body of studies found that female offenders received more favorable sentencing considerations than male offenders. They concluded that unwarranted disparity was more salient for the gender effect in favor of female offenders than for the race effect in favor of White offenders. Several studies also focus specifically on the effect of an offender’s age (e.g., Feinberg & McGriff, 1989; Steffensmeier et al., 1995; Steffensmeier & Motivans, 2000; Turner & Champion, 1989; Wilbanks, 1988; Wu & Spohn, 2009). Findings about the age effect on sentence severity are mixed. Steffensmeier et al. (1995) argued that the effect of age was curvilinear, finding that offenders aged 30 and older, as well as those under 20, received significantly shorter sentences than those aged 20 to 29. Steffensmeier and Motivans’s (2000) comprehensive analysis, however, revealed a linear effect. They found that older offenders were less likely to be incarcerated and received shorter sentences than younger offenders. Wu and Spohn’s (2009) meta-analysis revealed that an offender’s age did not affect sentence length. The last line of inquiry into a single unwarranted individual characteristic is the attempt to understand the relationship between unemployment and sentencing. Chiricos and Bales’s (1991) research on unemployment and incarceration revealed that compared to employed offenders, unemployed offenders were less likely to be released prior to trial, were more likely to be incarcerated after conviction, and received longer jail time. They also found that the effect of unemployment was strengthened when offenders were young Black males. Chiricos and Crawford (1995) argued that unemployment could be viewed as a contextual factor to affect judicial decision making. They concluded that areas where unemployment rates were high had higher imprisonment rates than areas where unemployment rates were low.

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Citizenship Status, Race/Ethnicity, and Sentencing

There is also research exploring the intersection of race, gender, and age (Steffensmeier, Ulmer, & Kramer, 1998) or the interaction between race, gender, age, and employment status (Chiricos & Bales, 1991; LaFrentz & Spohn, 2006; Spohn & Holleran, 2000). Some findings from studies at the state level support the hypothesis that the offender’s race/ethnicity is not a solo factor and must be analyzed in combination with other demographic characteristics of the offender. Judges tend to view young Black and Hispanic male offenders or unemployed Black and Hispanic male offenders as a dangerous group and, in turn, impose harsh sanctions on them, particularly with regard to the decision of whether to incarcerate (Spohn & Holleran, 2000; Steffensmeier et al., 1998). However, the hypothesis regarding the interaction effects of race, gender, age, and unemployment has not received support in federal courts (LaFrentz & Spohn, 2006). Although such legally irrelevant factors as race/ethnicity, gender, age, and employment status to date have taken center stage in sentencing research in recent decades, the citizenship status of the offender receives little attention in the sentencing literature. Studies reporting the effect of citizenship status are largely confined to the federal level, and the measure of citizenship status is, at most, treated as a control variable in empirical models (but see Demuth, 2002, for a discussion about the role of citizenship status under the Guidelines). The fact that sparse research is devoted to exploring the relationship between citizenship status and sentencing leaves researchers knowing little about whether and how citizenship plays a role in the sentencing process. Additionally, research on citizenship and sentencing is not firmly grounded in theories of sentencing decision making. Steven Demuth perhaps is the first to make an ambitious attempt to understand the association. Demuth’s (2002) findings reveal that non-citizen offenders are disadvantaged in the incarceration decision, but his research lacks theoretical explanations to support his findings. In short, there is an empirical need to extend this initial exploration of the nexus between citizenship and sentencing, while grounding the research questions firmly in criminal justice theory.

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IMPORTANCE OF CITIZENSHIP STATUS ON SENTENCING Citizenship status has received relatively little attention in sentencing research. Like race/ethnicity and gender, citizenship status underscores the notion of the majority-minority contrast. However, unlike the offender characteristics of race/ethnicity and gender, research on the effects of citizenship status on unwarranted disparities has been scarce. In light of the increased number of non-citizen offenders processed in the federal criminal justice system since the early 1980s, it is important for researchers to comprehensively explore the relationship between citizenship status and sentencing outcomes. Moreover, while most research denies the immigration-crime link, it is unclear to what extent the link between immigration and sentencing remains. It is also unclear to what extent citizenship status and race/ethnicity interact to affect sentencing. There is also a need to develop a theoretical framework regarding the relationship between citizenship status, race/ethnicity, and sentencing. The following sections provide a detailed discussion about reasons why a thorough examination of the role of citizenship status in sentencing is essential. Seven reasons are outlined below to justify the current study’s focus on how citizenship status affects criminal sentencing outcomes. This chapter first discusses research depicting the proposed immigration-crime and immigration-sentencing links. This chapter then addresses the issue of the clash between citizenship status and civil liberties. Furthermore, this study analyzes general social issues associated with immigration. The next justification is the continued impact of legally irrelevant factors on sentencing in both state and federal courts. The fifth justification involves the notion of the majority-minority contrast in sentencing research and the need to extend this line of investigation to citizenship status. The sixth justification centers on the recent rise in the number of non-citizen offenders processed in federal courts that has raised the concern of the general public and criminal justice decision makers. The last issue emphasizes the importance of developing an integrated theory to understand the relationship between citizenship status and criminal sentencing.

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Immigration-Crime Link The immigration-crime link has long been an issue of concern.2 Criminologists attribute the link to two accounts: (1) whether individual characteristics of immigrants promote the association between immigration and crime, and (2) whether immigrants are more vulnerable to different stages of criminal justice processing than citizens (Hagan & Palloni, 1998). The first account suggests that immigrants tend to be young men and possess characteristics consistent with those of typical offenders. Increases in crime volume can therefore be attributable to increases in the number of immigrants (see Hagan & Palloni, 1998). According to the second account, the vulnerability of immigrants to the criminal justice system may generate an unreasonably large number of criminal offenses by immigrants due to differential enforcement (see Hagan & Palloni, 1998). Regardless of the account used to explain the immigrant-crime link, reliable evidence is not present to support either of the accounts. The failure to establish the link between immigration and crime indeed applies invariably across all ethnic groups (ACLU, 2008). In a scrutiny of the immigrant-crime link, Butcher and Piehl (2006) pose the question, “Why are immigrants’ incarceration rates so low?” (see also Butcher & Piehl, 1998). The authors find that compared with native-born Americans, immigrants have relatively low incarceration rates. The authors also find that this situation is particularly evident for recently arrived immigrants. That is, the gap in incarceration rates between immigrants and native-born Americans has been amplifying over the years. Butcher and Piehl’s (2006) findings are consistent with the long-standing criticism of the unjustified accusation of an immigrant-crime link. A similar argument has been made by Martinez’s (2002) research on Latino homicide. His conclusion points

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As Martinez and Lee (2000) note in their discussion about immigrant-crime link, it is difficult to determine precisely the distinction between immigrants and natives. Some individuals as the second generation of immigrant family are born and raised under the American culture, but they are actually considered immigrants by many native Whites. Likewise, naturalized citizens, with a cultural background different from those born and raised in the United States, have experienced the immigration process.

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to a weak link between immigration and changes in Latino homicide rates. As Martinez notes, the overall Latino homicide rate across the country since 1980 has not provided sufficient evidence to suggest that changes in immigrant population size are associated with changes in Latino homicides. Much of the controversy originates from questionable information disseminated to the general public through the media. Most research on this issue refutes the media’s portrayal of the relationship between immigration and crime in which immigrants are associated with the increase in crime rates (Ferracuti, 1968; Hagan & Palloni, 1998, 1999; Mears, 2001). Empirical evidence indicates the underrepresented immigrant population processed in the criminal justice system. Compared with those born in the U.S., first-generation immigrants have a lower likelihood of being involved in criminal offending (Lynch & Simon, 2002; Sampson, Morenoff, & Raudenbush, 2005; Yeager, 1996). Immigrants may at most be likely to commit certain culturally related offenses (Sellin, 1938), but generally from the early generations of European immigrants to the recent generations of Asian and Hispanic immigrants, they are not more likely than the native Whites to be involved in crime (Martinez & Lee, 2000). In rejecting immigration itself as an explanation of crime, criminologists have proposed two perspectives. First, cultural theorists use acculturation as a theoretical explanation, arguing that it is the children of immigration, who were born and raised in the United States, that have a greater likelihood of being incarcerated (Sutherland, 1934; Sellin, 1938). On the other hand, social disorganization theorists argue that, like native Whites, immigrants are vulnerable to deteriorate local conditions (Shaw & McKay, 1942; see also Martinez & Lee, 2000). This explanation of why crime is largely associated with urbanization was developed by the Chicago School of sociologists. In short, these theories suggest crime has little to do with the identity of immigrants. The media and government often report only basic descriptive statistics, which are misleading and fail to isolate other factors to effectively predict whether immigrants are more likely to engage in criminal offending. The immigrant-crime link has more to do with public stereotyping than empirical evidence suggests (Espenshade & Belanger, 1998; Martinez & Lee, 2000; Simon, 1985). The immigrantcrime link perceived by the general public or media more or less reflects anti-immigration sentiments. Beginning in the early 1990s,

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anti-immigration activists advocated a series of measures to criminalize, pathologize, marginalize, and scapegoat immigrants (Welch, 2002). These activists also claim that immigrants should shoulder the blame for the seriously worsening crime problem. For example, such groups as the American Legion accused non-citizens of crowding the prison, having felony histories, and being sex predators (Scherr, 2008). Moreover, legislation passed during this time, such as the 1994 Violent Crime Control and Law Enforcement Act, the 1996 Illegal Immigration Reform and Immigration Responsibility Act, and the 1996 Anti-Terrorism and Effective Death Penalty Act, reflected public concern with immigration and crime (McDonald, 1997; Welch, 2002). During the past century, the difference in the perceptions of an immigrant-crime link was not whether it existed, but a search for evidence of which racial/ethnic group is most responsible for the immigrant-crime link (i.e., from Europeans, such as Greeks, Irish, Italians, Jews, Poles, and Russians, to Asians and to Hispanics). Public opinion polls continue to indicate that the desire to reduce the number of immigrants has remained at a high level over the last three decades (Lee, 1998). Research on the issues of differential enforcement towards immigrants as the explanation for the immigration-crime link is characterized by conflicting results and provides little information about judicial decision making. Sentencing scholars allege that “there is reason to believe that Mexican and other immigrants may experience some unique risks of imprisonment for their crimes…It may also be the case that immigrant drug offenders are sentenced with greater severity than others” (Hagan & Palloni, 1998, pp. 375-376). However, as previously mentioned, whether there is a link between immigration and sentencing remains unresolved. If there is a link, there is a need to develop explanations to interpret it.

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Citizenship and Civil Liberties There is a fundamental legal issue in the United States regarding the conflict between citizenship and civil liberties, especially postSeptember 11, 2001. Terrorist attacks within U.S. borders have spawned a number of legislative bills, each attempting to combat potential terrorist threats. These bills have raised concerns about not only U.S. citizens’ privacy but also non-citizens’ due process rights.

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The Real ID Act of 2005, for example, targets non-citizens by imposing strict restrictions on the receipt of state driver’s licenses and identification cards (AILA, 2005). The most detrimental impact under the Act involves the introduction of complex rules for delivery bonds, which expand bail bondsmen authority over non-citizens. The statutes also impose higher standards for non-citizens to be bailed out or ban them from receiving release on their own recognizance. Under the new statutes, bail bondsmen can act as law enforcement agents to apprehend and detain immigrants in a removal proceeding and have access to the background information of the immigrants via the government database. Critics such as the American Immigration Lawyers Association (AILA) strongly oppose the Real ID Act of 2005. According to the AILA (2005):

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A dramatic diminution in due process and civil liberties protections for non-citizens commenced with passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA, P.L. 104-208) and the Anti-Terrorism and Effective Death Penalty Act (AEDPA, P.L. 104-132), both enacted after the first World Trade Center bombings. As a result of IIRAIRA and AEDPA, legal immigrants routinely are detained without bond, deported without consideration for discretionary relief, restricted in their access to counsel, and barred from appealing to the courts. (p. 4) The position of the AILA is that Americans have traditionally committed to equal protection and fair treatment. All individuals before the law must be treated the same without regard to their personal identities such as citizenship status. Specifically, non-citizens, legally or illegally, also are protected by constitutional principles against illegitimate arrest, detention, prosecution, and trial (Heymann, 2002). The American Civil Liberties Union (ACLU) takes the same stance on this issue as well, arguing that alien discrimination from governmental actions or legislation is not tolerable and that the U.S. Supreme Court has strenuously imposed restrictions on government agencies to engage in such activities against non-U.S. citizens (ACLU, n.d.). Before the moral panic was brought on by the events of September 11, 2001, the U.S. Supreme Court decided several issues of non-citizen

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civil liberties. In Plyler v. Doe (1982), the U.S. Supreme Court repealed a Texas law authorizing local school districts to deny the provision of education to undocumented children. The U.S Supreme Court incorporated into the scope of the Equal Protection Clause illegal aliens who are physically present in the U.S. Furthermore, the equal protection principle was extended to other social benefits for illegal aliens as well, because the government had recognized them as a distinct class of people. As the U.S. Supreme Court noted, this class of people had to be treated equivalently to every other class of people who were similarly situated. Also in a recent U.S. Supreme Court case, Zadvydas v. Davis (2001), Justice Steven G. Breyer, writing for the majority, restated the U.S. Supreme Court’s long-standing position on the application of the Due Process Clause. He stated that “… once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent” (p. 693). According to this ruling, the constitutional protection matters not because of “who the person is” but because of “where the person is.” Clearly, using citizenship status as a means to provide differential treatment is hardly justified, inevitably coming under close scrutiny throughout all criminal justice proceedings. The U.S. Supreme Court has continually emphasized the applicability of criminal justice rights to every individual within the U.S. territory regardless of citizenship status. Unwarranted disparity in sentencing outcomes stemming from the consideration of citizenship status, while not directly addressed by the U.S. Supreme Court, is not a means legitimately accepted by Federal Sentencing Guidelines and risks conflicting with the constitutional protection of due process and equal protection.

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General Social Issues and Immigration There are a number of general social issues indicating the need for a theoretically driven empirical assessment of the impact of citizenship on criminal sentencing. Increased demand for immigrants to fill job positions left by Americans in the low-level labor market, illegal entry of immigrants as a growing threat to border control, homeland security, and public welfare, importation of diverse cultures as a source of increased social distance and group hostility, and immigrants’

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involvement in illegal activity all contribute to rising awareness that immigration is no longer a negligible issue. Negative images associated with immigrants over the years have reinforced Americans’ moral panic over immigration issues and ambivalent attitudes toward immigrants, further influencing the shaping of contemporary immigration policy (Welch, 2002). Of the consequences of moral panic over immigration is a sentiment toward “strengthening the social control apparatus of the society―tougher or renewed rules, more intense public hostility and condemnation, more laws, longer sentences, more police, more arrests, and more prison cells” (Goode & BenYehuda, 1994, p. 31). With such strengthening of the social control apparatus, it is important to examine whether there are subsequent abuses of government powers such as unwarranted disparities in sentencing outcomes. Issues of legal and illegal entry and temporary residence are conflated with the discussion of citizenship in U.S. society and may arguably have impact on such government decisions as criminal sentencing. In particular, the number of illegal entries increased by 215% between 1994 and 2003, from 8,777 to 27,620 (BJS, 2006). Given the growing concern of the role played by non-citizens in society, it is of interest to researchers to understand the difference in the treatment of criminal justice processing between citizens and noncitizens. The studies with citizenship status as a control variable show evidence that differential treatment exists between non-citizens and citizens in the sentencing process (Albonetti, 1997, 1998, 2002; Demuth, 2002; Kautt & DeLone, 2006; Mustard, 2001; Spohn, 2005). However, the evidence concerning which immigrant group is more or less disadvantaged is inconclusive.

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Legally Irrelevant Factors and Sentencing Outcomes An additional reason to focus on the citizenship status of offenders is the continued relevance of legally irrelevant factors such as race/ethnicity, gender, age, and employment status on criminal sentencing (see Spohn, 2000, for a comprehensive review). In short, even when controlling for legally relevant factors and these known extralegal influences, there is still an element of variability in criminal sentencing left unexplained. Most federal sentencing studies use citizenship status only as a control variable and rarely explore its

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context in an elaborate way. Demuth (2002) has recently called for a more detailed investigation of citizenship and unwarranted disparity. He pointed out that the general public and, in turn, researchers lacked a substantial interest in understanding how non-citizens were treated. This attitude has been changed in recent years because of the emergence of non-citizen-related issues in economic, political, cultural, and social (e.g., criminal justice) agendas.

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Theoretical Advancement in Explaining Sentencing Outcomes The natural progression of academic research based on previous findings about offender characteristics and general social unrest about troublesome populations is most often grounded in the theoretical framework that underscores the notion of the majority-minority contrast, which is reflected in such offender characteristics as race, gender, age, and unemployment. With Black and Hispanic offenders as identified racial minorities, sentencing researchers have devoted much of their attention to their possible unfavorable treatment (for a review, see Spohn, 2000). However, among racial/ethnic minorities, Asian offenders have been found to often receive similar treatment to White offenders at the sentencing stage (Everett & Wojtkiewicz, 2002; Schanzenbach, 2004). Female offenders account for less than 20% of all offenders appearing in federal and state courts (BJS, 2005, 2008), and there is solid evidence to suggest that female offenders receive lenient treatment (Albonetti, 1998; Daly & Bordt, 1995; Spohn & Beichner, 2000; Spohn & Spears, 1997; Stacey& Spohn, 2006; Steffensmeier, Kramer, & Streifel, 1993). Furthermore, the number of unemployed offenders is often much smaller than the number of employed offenders, but research finds that unemployment increases the likelihood of both pretrial detention and post-conviction incarceration (Chiricos & Bales, 1991). Regional unemployment is found to be positively associated with the decision to incarcerate (Chiricos & Crawford, 1995). Regarding age, offenders under 20 and those over 40 at sentencing make up approximately 30% of convicted offenders (BJS, 2005, 2008). The majority of offenders fall into the age range between 20 and 40. How an offender’s age affects the severity of sentencing decisions, however, is inconclusive (see Wu & Spohn, 2009). With age measured as a continuous variable, some researchers found that older offenders

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were sentenced more harshly than those who were younger (Curry, Lee, & Rodriguez, 2004; Helms & Jacobs, 2002; Mustard, 2001) or that age was inversely correlated with the likelihood of a prison term (Kempf-Leonard & Sample, 2001; Spohn, 1990; Ulmer, 2000), whereas others found that age did not have a significant effect (Bushway & Piehl, 2001; Chiricos & Bales, 1991; Engen & Gainey, 2000; Hebert, 1997; Johnson, 2006; Kautt & Spohn, 2002; Nobiling et al., 1998; Pasko, 2002; Ulmer & Kramer, 1996; Wooldredge, 2007). Still others concluded that the effect of age was curvilinear, with offenders who were about age 30 receiving slightly longer sentences than their younger counterparts and substantially longer sentences than their older counterparts (Steffensmeier & Demuth, 2000). The age effect, in other words, is not necessarily linear. In addition to the aforementioned offender characteristics, the theoretical framework of the majority-minority contrast applies to the example of citizenship status as well. According to federal justice statistics of 2005, 37.7% of all convicted offenders were non-U.S citizens (BJS, 2008). Non-citizens have formed an important minority group in the federal system. As citizenship status bears relevance to race/ethnicity and federal judges generally have information about offender nationality, it is sensible to assume that judges may observe the role of citizenship in a way similar, rather than identical, to race/ethnicity, which warrants the need for a full review.

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Changes in Federal Sentencing Populations Hydraulic pressure on federal sentencing due to the increased number of non-citizen offenders supports the need for this research. Increased caseloads are due, in part, to the tough-on-crime policies that target drug offenders. According to a special report from the Bureau of Justice Statistics, 3,462 non-citizens were prosecuted in federal district courts in 1984, compared to 10, 352 in 1994 (BJS, 1996). Despite relatively little attention received, the number of non-citizen offenders prosecuted in federal courts in 1994 grew to three times the number in 1984 (BJS, 1996). The upward trend of non-citizen prosecution was similarly reflected in incarceration. There were 4,088 non-citizens admitted to federal prisons in 1984, but the number soared to 18,929 in 1994.

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During that time, the number of drug-related cases soared to a heightened level for citizens, so did the number for non-citizens. Among non-citizens admitted to federal prisons during this period, drug offenders formed the largest group, contributing to 526% increase. The BJS report attributed the increase to the mandatory minimum sentence under the Anti-Drug Abuse Act of 1986, which applied to 60% of drug offenders. The annual increase in the federal non-citizen population also exceeded the increase in the overall federal prison population by 5% (BJS, 1996). The growing concern among federal judges with the seemingly rampant drug offenses by non-citizens not only pertains to escalating caseloads, but it also reinforces judges’ fears of undesirable influences on social order brought by immigrants. Such fears directly or indirectly provoke an anti-immigrant backlash. In other words, crimes committed by non-citizens or immigrants may be perceived as more undesirable than those committed by citizens.

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Reinvigorated Need for Integrated Theoretical Framework There is a need to develop a theoretical framework regarding the relationship between citizenship status, race/ethnicity, and sentencing. Over the last two decades, sentencing researchers have focused considerably on the focal concerns perspective (Steffensmeier et al., 1998) and the uncertainty avoidance/bounded rationality perspective (Albonetti, 1991). Researchers apply the two perspectives to account for sentencing disparity in general. The focal concerns perspective posits that judges’ sentencing decisions reflect their assessments of the blameworthiness or culpability of offenders, their desire to protect the community by incapacitating dangerous offenders or deterring potential offenders, and their concerns about the practical consequences, or social costs, of sentencing decisions. According to this perspective, judges rarely have enough information to accurately determine a defendant’s dangerousness or threat. As a result, judges develop a “perceptual shorthand” (Hawkins, 1981, p. 280; see also, Bridges & Steen, 1998) based on stereotypes and attributions that are themselves linked to offender characteristics such as race, gender, and age. Thus, “race, age, and gender will interact to influence sentencing because of images or attributions relating these statuses to membership in social groups thought to be dangerous and crime prone” (Steffensmeier et al., 1998, p. 768).

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Furthermore, these stereotypes and attributions, which are derived from personal experiences or work environments, serve the important goal of achieving “bounded rationality” and avoiding uncertainty associated with incomplete information (Albonetti, 1991, p. 250). The primary, and perhaps the only, source for the judge to learn about the offender and the case generally comes from a presentence investigation prepared by the probation officer after the offender’s conviction. Despite the provision of the presentence investigation report to judges, there is no guarantee that the prediction of the offender’s future behavior is absolutely accurate or rational. Judges therefore develop patterned responses to reduce the influence of bounded rationality that forms a barrier to their predictions of the offender’s future criminal involvement (Albonetti, 1991). Relying on an attributional process linking offender characteristics to future behavior, the patterned responses function to rationalize the notion in which uncertainty inevitably affects decision makers’ judgments. While the validity of the focal concerns and uncertainty avoidance/bounded rationality perspectives has been confirmed by sentencing researchers, the two perspectives are not all-inclusive in the myriad circumstances of federal sentencing, particularly when research interests are focused on the impact of citizenship status and race/ethnicity on sentencing decisions. For example, judges base blameworthiness primarily on offense severity (e.g., wrongfulness and harmfulness) and criminal history. The application of blameworthiness to explaining differential sentencing based on citizenship status necessarily suggests that non-citizens commit more heinous crimes than citizens. However, there is no evidence that non-citizens are more violence-prone than citizens. There also is no convincing evidence that non-citizens are more likely to recidivate and pose a greater danger to the community than citizens. Moreover, female offenders and old offenders have been seen as lacking an ability to do time in prison because of family burdens or health issues, but it is unclear whether non-citizens have less ability to do time in prison than do citizens. The focal concerns perspective alone is hardly robust in explaining the effect of citizenship status on unwarranted disparity. Similarly, bounded rationality occurs in not only non-citizen cases but also citizen cases. Incomplete information about cases and offenders that constrains a judge’s ability to make an errorless judgment is commonplace for both non-citizen and citizen cases. There must be other theoretical

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perspectives to account for the independent effects of citizenship status and race/ethnicity and their interplay. Although sentencing researchers have tested several theories regarding the effects of race/ethnicity on unwarranted disparities, no study, to my knowledge, has proposed a theoretical perspective to explain the relationship between citizenship status and sentencing outcomes. There also is no theoretical framework proposed to tackle the intersection of citizenship status and race/ethnicity. This research attempts to fill the theoretical gap by developing a framework to address these issues. In particular, this research addresses a previous criticism of conflict theory by Hawkins (1987) for the theory’s failure to explain the relationship between race and sentencing. This research also responds to Liska’s (1994) concern related to the importance of empirical tests of conflict theory. I argue that conflict theory has been misplaced in early sentencing research and that its position underlies the relationship between citizenship status and sentencing outcomes. Conflict theory has become a prominent perspective in criminological research since the 1960s, with types of conflict addressed ranging from Blalock’s (1967) racial conflict to Turk’s (1969) authority-subject conflict and to Quinney’s (1977) and Spitzer’s (1975) economic conflict (for detail, see Liska, 1994). This theory, however, has not been used to test and explain the effects of citizenship status on sentencing outcomes. According to conflict theory, non-U.S. citizens’ increasing involvement in criminal offenses and their frequent appearance in federal court in recent years may have led social elites such as judges to perceive this class of people as social threat to general social interests (see Liska, 1994). The relationship between race/ethnicity and sentencing outcomes, on the other hand, is grounded on typification theory. Furthermore, threat hypotheses as the common core elements of conflict theory and typification theory serve to clarify how citizenship status and race/ethnicity intersect to affect judicial decision making. THE CURRENT STUDY This study focuses on disparities in sentencing outcomes in federal courts (see Appendix A for the current organizational structure of the federal judiciary). Federal Sentencing Guidelines are grounded in the two key legally relevant sentencing variables: seriousness of offense

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17

and criminal history. While these variables consistently explain a substantial portion of variation in offender sentencing, legally irrelevant factors, particularly offender characteristics, which are nominally outside the purview of the judge’s sentencing considerations, have been shown to be significant predictors of sentencing outcomes (e.g., Spohn & Holleran, 2000; Steffensmeier et al., 1998). Recommendations for sentencing statutes are made by the United States Sentencing Commission. They delineate as legally irrelevant (or as not ordinarily relevant) factors such as age, education and vocational skills, employment record, race/ethnicity, gender, national origin, religion, and socioeconomic status (USSC §5H1.1, §5H1.2, §5H1.5, & §5H1.10, 2005). While these offender characteristics are present in presentence investigation reports, Federal Guidelines, explicitly or implicitly, prohibit the use of legally irrelevant factors. This study assesses the impact of citizenship status in a more comprehensive and theoretically grounded way than previous research, using multivariate analyses to explore main effects and key interaction effects (i.e., race/ethnicity of offender, country of origin, and geographic location of sentencing) on the likelihood of incarceration, sentence length, and probation length. While controlling for all legally relevant variables (e.g., offense seriousness and criminal history), the research hypotheses examine the between-group relationship in terms of immigration status (i.e., non-U.S. citizens vs. U.S. citizens) and within-group relationship in terms of race/ethnicity (i.e., racial relationships in the non-U.S. citizen group and in the U.S. citizen group). The between-group relationship is designed to investigate how differences in economic conditions between the non-citizen group and the citizen group affect sentencing outcomes. The within-group relationship is designed to investigate whether sentencing patterns of unwarranted racial/ethnic disparities in the non-citizen group are consistent with patterns in the citizen group. Additional variables will be included to control for case processing and additional offender characteristics as the review of prior research indicates. Finally, this research goes beyond any current sentencing research by examining the intersections of citizenship status, race/ethnicity, and other factors. This study will proceed with discussions of the history and constitutional conflict of Federal Sentencing Guidelines in Chapter Two. Strengths and weaknesses of the theoretical foundations for sentencing disparity, as well as the proposed theoretical framework to

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explain the independent and joint effects of citizenship status and race/ethnicity on sentencing decision making will be included in Chapter Three. A review of the findings and limitations of empirical sentencing literature regarding citizenship status will also be discussed in that chapter. Following the literature review is Chapter Four, which begins with the statement of research hypothesis that will guide this study. Chapter Four also presents the research methodology used in this study, including descriptions of the data and variables. Analytic procedures will be discussed as well. The findings of this study are presented in Chapter Five. Discussions of how the proposed theoretical framework explains the findings of this research, along with suggestions for future research, will be in Chapter Six. Conclusions and policy implications appear in Chapter Seven.

CHAPTER 2

Federal Sentencing Guidelines

To better understand the nexus between federal sentencing and unwarranted disparity, it is important to have a background overview of Federal Sentencing Guidelines. In particular, Federal Sentencing Guidelines have been seen as one of the responses to the contemporary criticisms of indeterminate sentencing and as the product of the Sentencing Reform Act that created the United States Sentencing Commission to mobilize the implementation of the Guidelines. There have been numerous constitutional challenges to Federal Sentencing Guidelines after their inception. These challenges not only pertain to the constitutionality of the Guidelines but also include their statutory application to a particular case. The U.S. Supreme Court’s decisions have directly or indirectly had an impact on the exercise of judicial discretion and, in turn, unwarranted sentencing disparity. A snapshot of the development of Federal Sentencing Guidelines is presented in Figure 1.

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HISTORICAL BACKGROUND In 1984 Congress enacted the Sentencing Reform Act (SRA), which created the U.S. Sentencing Commission and authorized the Commission to establish Federal Sentencing Guidelines that took effect in 1987. This sentencing reform was seen as one of a series of responses to seemingly unsuccessful efforts in correctional approaches that advocated individualized treatment through probation, parole, and indeterminate sentences (Clear, Cole, & Reisig, 2009). During this period, the sentencing policy from the federal government to states largely centered on the indeterminate sentencing ideal, which broadened administrative and judicial discretion in the process of 19

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decision making and left unbridled power to judges and parole board officials (Rothman, 2002).

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Leniency and unequal treatment as a result of indeterminate sentencing promoted field experts and scholars to rethink what criminal justice policy would work best. Since the 1960s, the upward trend of crime rates into the 1980s has also made the general public concerned about what the government could do to deal with the crime problem. The emergence of the crime control model espoused by conservatives in the late 1970s echoed not only the punitive attitude of the general public but also the partisan ideologies and politics of criminal justice policy makers (Tonry, 1996). On the other hand, liberals continued to express concern over the defendant’s rights to fair trial and sentencing. They worried that certain defendants, particularly racial minorities, would be disadvantaged by disparate sentences as compared to similarly situated White defendants. Scholars, accordingly, focused heavily on the issue of discretion. According to Davis (1969), “A public officer has discretion whenever the effective limits on his power leave him free to make a choice among possible courses of action or inaction” (p. 4). Davis (1969) further articulates that “discretion is not limited to what is authorized or what is legal but includes all that is within ‘the effective limits’ on the officer’s power” (p. 4). Judges, as public officers, exercise discretion in their sentencing decisions.

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Discretion in Federal Sentencing Ranging from interpretation of the law to sentencing considerations, the judicial discretionary authority embedded in federal courts has been recognized from the earliest court actions of the 1780s (Stith & Cabranes, 1998). Stith and Cabranes (1998) contend that it was, however, Progressive thinkers who under the influence of positivism greatly fashioned the increased power into the hands of judges and other personnel within the criminal court. The Progressive effort was reinforced by the proposed 1962 Model Penal Code, which made all sentences indeterminate (Stith & Cabranes, 1998). While the Model Penal Code was designed to emphasize systematization and consistency, its focus was on the type of offense under the substantive criminal law (e.g., the subjective and objective elements of the offense) rather than unwarranted disparate sentences (Stith & Cabranes, 1998). In the pre-Guideline era, federal sentencing policy favored an indeterminate sentencing system. Federal judges enjoyed considerable

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latitude in deciding the sentences of convicted defendants, ranging from fines or non-incarceration to ten or twenty years of incarceration (Frankel, 1972). Although a federal judge was responsible for imposing the sentence on an offender, the U.S. Parole Commission, given authority by the executive branch, determined the time point at which the offender ended his or her prison term. Rules governing whether a convicted offender should be incarcerated, how long a sentence would be, and when the incarcerated prisoner could be released from incarceration were provided within an indeterminate sentencing system. Judges’ sentencing decisions, as well as the Parole Commission’s release decisions, were often made on a case-by-case basis, lacking established rules to follow and having no appellate review to redress unreasonable, inconsistent decisions. Since New York became the first state to begin its parole laws in 1881 and the federal parole system was created in 1910, the broad discretion empowered to judges under indeterminate sentencing schemes has drawn widespread criticism from scholars, judges, and attorneys on both liberal and conservative sides. Liberals were dissatisfied with unfair sentencing and parole decisions that favored certain groups of offenders, whereas conservatives argued against the leniency of punishment as a result of the exercise of discretion (Spohn, 2002). As Judge Marvin Frankel (1972) noted, for example, “the almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law” (p. 5). He pointed out that the unbounded, arbitrary, and unpredictable judicial discretion largely overshadowed the efforts of sentencing reform. Frankel (1972) went further to characterize indeterminate sentences as “lawlessness in sentencing” (p. 1). Other scholars also advocated restraining discretionary mechanisms in judicial as well as executive decision making. For example, Davis (1969) characterized injustice as stemming from the exercise of judicial discretion rather than from legal rules applied to individual cases, because the use of discretion would be influenced by either a decision maker’s personal sentiments or the external pressures of the environment surrounding him or her. Davis (1969) did not reject judicial discretion outright but instead advocated its exercise “properly confined, structured, and checked” (p. 26). In addition, American

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Friends Service Committee (AFSC) (1971) argued that the justification for discretion based on individualized treatment lacked validity because negative influences brought by the exercise of discretion largely exceeded advantages. The AFSC strongly argued for taking several approaches to eliminate discretion, such as the abolition of the bail system, plea bargaining, and parole. Von Hirschi (1976) also proposed replacing indeterminate sentences with presumptive sentences in fixed terms. The U.S. Board of Parole, which was granted discretionary authority, similarly agreed on the development of a guideline system to restrict executive power (O’Donnell, Churgin, & Curtis, 1977). Simply put, the use of discretion has been seen as a direct source of unwarranted disparity and discrimination in federal sentencing. The harshness of sentencing and unfavorable parole decisions toward racial minorities and other socially disadvantaged groups have incurred numerous criticisms. More important, an appellate review of sentencing and parole decisions never existed to remedy arbitrary, unfair outcomes prior to structured sentencing reform (Miller & Wright, 1999; Tonry, 1996). Documentation of the shortcomings in federal sentencing led Judge Frankel to propose the establishment of a sentencing commission to develop determinate sentencing schemes to guide judicial decision making (Frankel, 1972; Spohn 2002; Tonry, 1996). One of the sponsors of federal sentencing reform was Senator Edward M. Kennedy, who after a workshop gathering different fields of scholars and professionals at Yale Law School drafted the Sentencing Guidelines Bill (S. 2699) that ultimately became the SRA, following several revised versions (O’Donnell et al., 1977; Spohn, 2002; Stith & Cabranes, 1998). In brief, sentencing reform, designed to curb discretion, focused on four aspects of change: establishing an administrative sentencing commission, inventing sentencing guidelines, implementing appellate review of sentencing, and abolishing the parole system (Frankel, 1972; Spohn, 2002; Stith & Cabranes, 1998). Emergence of Federal Sentencing Guidelines The popularity of sentencing guidelines and determinate sentencing in several states (e.g., Minnesota and Pennsylvania for the former as well as Arizona, California, Illinois, and Indiana for the latter) in the late 1970s and early 1980s also spurred reformers to resolutely seek

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sentencing guidelines at the federal level (Tonry, 1996). The state sentencing guidelines, however, differed in their forms from voluntary (or advisory) to presumptive (Bureau of Justice Assistance, 1998). Voluntary guidelines had no binding power on judges’ decision making; judges were free to choose whether to observe guideline suggestions (Spohn, 2002; Tonry, 1996). By contrast, presumptive guidelines, which are attached to rigid sentencing schemes, left little discretion to judges; a departure from guidelines was under exceptional circumstances, requiring written explanations (Spohn, 2002). The primary problem with the voluntary guidelines was the failure to produce appreciable reductions in unwarranted disparity (Rich, Sutton, Clear, & Saks, 1981, 1982). In order to accomplish the intended goal of enhancing sentencing reform, the U.S. Sentencing Commission promulgated Federal Sentencing Guidelines toward the presumptive model (Miller & Wright, 1999; USSC, 2004; see also Mistretta v. United States, 1989), with offense seriousness and criminal history as the key legal determinants of the determination of sentences. However, debate did exist regarding the nature of Federal Guidelines. On October 12, 1984, the revised version of the Comprehensive Crime Control Act of 1983 (S. 1762) was signed by President Reagan and went into effect as the 1984 SRA (USSC, 2004). The goals of the SRA were to ensure not only “certainty and transparency in punishment and the elimination of unwarranted disparity” but also the “establishment of policies that will best accomplish the purposes of sentencing” (USSC, 2004, p. 11). The passage of the SRA marked a victory for both liberals and conservatives. In 1985, seven Commissioners were appointed to undertake the mission of sentencing reform. One of the Commissioners, Paul H. Robinson, shouldered the responsibility for drafting the preliminary version of Federal Sentencing Guidelines in 1986 (Stith & Cabranes, 1998). Following several revisions, Federal Guidelines, which reflected flexibility and the U.S. Sentencing Commission’s efforts to balance concerns from both supporters and opponents of the Guidelines, were based on the version drafted by another Commissioner, a current U.S. Supreme Court Associate Justice, Stephen G. Breyer (Stith & Cabranes, 1998). Breyer’s version largely resulted in the Guidelines’ smooth passage through Congress. Three years after the passage of the 1984 SRA, Federal Sentencing Guidelines went into effect.

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According to established goals, Federal Sentencing Guidelines outline factors that are legitimate for the determination of sentences (i.e., legally relevant factors) and factors that are not legitimate (i.e., legally irrelevant factors). Offense seriousness and criminal history constitute two key legally relevant factors. Thus, the determination of a sentence under the federal sentencing system is based on a guidelines grid, with the horizontal axis for criminal history categories and the vertical axis for levels of offense seriousness (USSC Ch. 5, 2005; see also Appendix B). The intersection of criminal history categories and offense levels constitute the sentencing range with the Guideline minimum sentence and the Guideline maximum sentence specified for a judge to determine a sentence. Judges are in principle expected to give a sentence within the applicable Guidelines range. If the judge imposes a shorter sentence on the offender than the Guideline minimum, a downward departure takes place. Likewise, an upward departure occurs when the judge metes out a sentence longer than the Guideline maximum. As specified under 18 U.S.C. §3553(b), departures are granted only under very restrictive circumstances (see also USSC §5K2.0, 2005). Consistent with the mandate from 28 U.S.C. §994(e), the Guidelines specify criteria regarding legally irrelevant factors in order to direct judicial sentencing considerations (see USSC Ch. 5, pt. H, 2005). These criteria denote that sentencing differentials based on legally irrelevant factors are viewed as unwarranted and contrary to the purposes of the Guidelines. The Federal Sentencing Guidelines Manual (USSC §5H1.10, 2005) expressively states that the offender’s race, sex, national origin, creed, religion, and socioeconomic status are “not relevant in the determination of a sentence.” Moreover, the Guidelines state that certain factors “are not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline range” (USSC §5H1.1-1.12 & §5K2.0, 2005). Included among the “specific offender characteristics” that are “not ordinarily relevant” are the defendant’s age, education, vocational skills, mental and emotional conditions, physical conditions (including drug or alcohol dependence or abuse), employment record, family ties and responsibilities, and community ties. Despite this limitation, the Guidelines go beyond the simply offense-of-conviction model by espousing the real-offense model in which factors such as the circumstances surrounding the offense, the consequences of the harm

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caused, the public concern, the deterrent effect from the sentence, and the defendant’s criminal history should be taken into account (28 U.S.C. §994(c), see also Heaney, 1991; Reitz, 1993; Stith & Cabranes, 1998). There are several differences between guidelines promulgated by the U.S. Sentencing Commission and those enacted by the states. First, offense seriousness and the offender’s criminal history are two key legal factors that determine sentences under both federal and state guidelines. However, the Federal Guidelines use a 43-level sentencing grid, compared to 12 or fewer levels of offense seriousness under most state guidelines (Spohn, 2005). Each of the 43 levels of seriousness matches a range of sentence lengths that, in general, is narrower than the range specified in some state guidelines (e.g., Minnesota). In fact, the range between the maximum and minimum sentence lengths in each cell is confined to either the 25 percent rule or 6 months under the Federal Guidelines (28 U.S.C. §994(b)(2); USSC, 2005). The carefully crafted level of offense seriousness attempts to decrease ambiguity for sentencing judges in attributing a particular case to the offense level and to ensure the application of the sentence consistently to all defendants. Second, unlike Federal Guidelines, state guidelines do not adopt the principle of relevant conduct (or real-offense sentencing as opposed to offense of conviction sentencing) (Spohn, 2005; Tonry, 1996). Relevant conduct involves offenses surrounding a defendant’s charged and convicted offense. In other words, relevant conduct points to the offenses that, through plea bargaining, prosecutors decided not to charge or previously charged but dropped. The requirement that judges consider a defendant’s relevant conduct at the sentencing stage not only increases the likelihood of enhancing the defendant’s sentences but also serves as a means of restraining prosecutorial discretion (Wilkins & Steer, 1990).3 3

As Tonry (1996) notes, states, such as Arkansas, Delaware, Florida, Kansas, Louisiana, Minnesota, New York, North Carolina, Ohio, Oregon, Pennsylvania, Washington, and Wisconsin, adopted the offense-of-conviction model rather than the real-offense model in which relevant conduct is the core element in sentencing considerations. Relevant conduct will be addressed later in the chapter.

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Finally, although federal and state guidelines similarly authorize judges to depart from the prescribed guideline range, federal judges can exercise this discretion only under very narrow circumstances (see USSC Ch. 5, pt. K, 2005). Sentencing reform, via the avenue of Guidelines as part of the overall criminal justice policy change toward determinate sentencing, was the stepping stone toward curbing judicial discretion to achieve such goals as consistency, fairness, and proportionality in sentencing as well as effective crime control (USSC, 2004). Sentencing Guidelines were to return from positivist thinking to classic criminologists’ calls for clarity, certainty, consistency, and transparency of punishment (Beccaria, 1986; Stith & Cabranes, 1998). Federal Guidelines allow for additional departure mechanisms, such as substantial assistance. Substantial assistance departures are recommendations initiated by the prosecutor. Defendants who provide “substantial assistance”—that is, information that leads to the prosecution and conviction of another offender—can be sentenced outside the applicable Guideline range. The typical substantial assistance departure occurs in cases for drug offenses, many of which carry a mandatory minimum sentence.4 A substantial assistance motion made by the prosecutor and granted by the court removes the mandatory minimum sentence that otherwise would be binding at sentencing. If the case involves unusual circumstances, the judge can depart from the sentence range indicated by the Guidelines, either upward or downward. Nonetheless, unlike state guidelines (e.g., Pennsylvania’s guidelines with a “window of discretion” for judges’ departure decisions), Federal Guidelines are comparably inflexible (Cirillo, 1986, p. 1329; Johnson, 2005, p. 762; Kramer & Ulmer, 1996, p. 81; Ulmer & Kramer, 1996, p. 386). For example, employment history is excluded from consideration for departures under the Federal Guidelines, but judges in some states can use this factor to depart from state guidelines (Doob, 1995; Kautt, 2000).

4

The discussion of mandatory minimum sentences is beyond the extent of the current study. For a detailed review of this sentencing scheme, see USSC (1991). For the empirical examination of federal mandatory minimum sentencing, see Caulkins, Rydell, Scwhabe, and Chiesa (1997), Kautt (2000), Kautt and DeLone (2006), LaCasse and Payne (1999), Meierhoefer (1992), and Vincent and Hofer (1994).

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FEDERAL SENTENCING GUIDELINES AND THE U.S. SUPREME COURT Since their implementation, the SRA and Federal Sentencing Guidelines have faced numerous challenges regarding their constitutional validity and statutory application. These challenges involve whether the Guidelines violate the constitutional principles of separation of powers, protection against double jeopardy (the Fifth Amendment), and the right to a jury trial (the Sixth Amendment). Although some cases directly attack the constitutionality of Federal Guidelines as a whole (e.g., Mistretta v. United States, 1989; United States v. Booker, 2005), others are relevant to the U.S. Supreme Court’s review of the lower courts’ application of Guidelines statutes. The following section illustrates cases the U.S. Supreme Court has reviewed in regard to the constitutionality of Federal Sentencing Guidelines.

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Constitutional Validity of Federal Sentencing Guidelines Mistretta v. United States (1989) In 1989, the U.S. Supreme Court in Mistretta v. United States (1989) first upheld the constitutionality of the SRA and conferred on the U.S. Sentencing Commission a legitimate status to promulgate Federal Sentencing Guidelines. In this case, John Mistretta was charged in the United States District Court for the Western District of Missouri for selling and distributing cocaine. Mistretta argued that Federal Sentencing Guidelines were unconstitutional because of the excessive delegation of authority by Congress to the U.S. Sentencing Commission to create the Guidelines, resulting in the violation of the separation-of-powers doctrine. The District Court ruled against Mistretta, who later appealed to the Eighth Circuit. However, before the U.S. Court of Appeals made a judgment, both parties petitioned the U.S. Supreme Court for certiorari to consider the constitutionality of the Guidelines. The issue before the U.S. Supreme Court in Mistretta was whether the SRA that established the U.S. Sentencing Commission within the Judicial Branch to promulgate binding Sentencing Guidelines for federal judges was a constitutional delegation of powers to an independent Sentencing Commission. The U.S. Supreme Court ruled that the SRA and Federal Sentencing Guidelines were constitutional

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because the legislative power granted to the U.S. Sentencing Commission was not excessive. Furthermore, the U.S. Supreme Court held that the separation-of-powers doctrine was not violated because the U.S. Sentencing Commission was not part of the Judicial Branch and was permitted to include federal judges to engage in non-judicial activity. In short, while the U.S. Sentencing Commission was located within the Judicial Branch, the U.S. Supreme Court viewed this arrangement as nominal. The U.S. Sentencing Commission and its Commissioners were independent of the Judicial Branch to perform extrajudicial tasks. United States v. Booker (2005) In January 2005, the U.S. Supreme Court handed down a landmark decision regarding whether Federal Sentencing Guidelines conflicted with the Sixth Amendment (United States v. Booker, 2005). Booker was found to possess 92.5 grams of crack cocaine in his duffle bag. In a later written statement, he confessed that he sold an additional 566 grams of crack cocaine. Booker was indicted for possession with intent to distribute at least 50 grams of crack cocaine. The jury, relying on the evidence presented regarding the charge for possession of 92.5 grams of cocaine, found Booker guilty, resulting in a Guidelines range of the sentence from 210 months to 262 months. Nonetheless, based on Booker’s previous written statement regarding the sale of 566 grams of crack cocaine and actions deemed to be an obstruction of justice, the judge applied a new sentence range from 360 months to life imprisonment. Instead of giving Booker a Guidelines maximum sentence of 262 months, the district judge sentenced him to prison with the enhanced term of 360 months. While affirming Booker’s conviction, the Seventh Circuit ruled that the Federal Guidelines violated the Sixth Amendment. Two issues addressed by the U.S. Supreme Court in Booker (2005) involved whether an enhanced, Guidelines-based sentence that bypassed jury fact-finding and used the “preponderance-of-evidence standard” violated the Sixth Amendment and whether Federal Sentencing Guidelines were altogether unconstitutional. With regard to the first issue, the U.S. Supreme Court held that consistent with its previous decisions in Mistretta v. United States (1989), Apprendi v.

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New Jersey (2000),5 and Blakely v. Washington (2004),6 the enhanced sentence that exceeded the statutory maximum without a jury’s

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5

The Apprendi case dealt with New Jersey’s hate crime penalty enhancements. Charles Apprendi, Jr., had a plea agreement with a prosecutor for his offense that involved firing shots into an African American residence located in a previously all-White neighborhood because of the racial identity of these household members (Apprendi v. New Jersey, 2000). At sentencing, the judge, based on testimony from Apprendi himself and a police officer, believed that Apprendi’s conduct was motivated by racial bias and therefore, without the jury’s determination, imposed an enhanced sentence greater than the penalty specified by the statutory maximum under New Jersey statutes. The key issue in this case was whether penalties that exceeded the statutory maximum had to pass a jury’s inquiry beyond a reasonable doubt. Apprendi was not relevant to Federal Sentencing Guidelines, nor did it address departures from sentence ranges. However, the issue in Apprendi was similar to the one raised in Booker (2005) in that both cases dealt with penalties included in plea agreements as well as the judge’s authority to determine sentences outside the statutory maximum. The U.S. Supreme Court held that facts of biased motivation used for the additional penalties had to be presented to the jury and that the judge had no authority to mete out such penalties based on the mere facts he or she found. Apprendi was cited in Booker (2005) as the rationale to restate the jury’s authority. 6 The Blakely case involved Washington sentencing guidelines and was not directly relevant to Federal Guidelines’ cases. However, the Court in Blakely tackled an issue similar to the one in Booker (2005); in other words, Blakely became the leading case for the Court’s later decision in Booker (2005). The core issue in Blakely was whether judges could impose a sentence that exceeded the state guidelines maximum based on the facts included in the plea agreement while not reviewed by the jury. The Court ruled that the sentence had to be limited to the statutory scheme based on the facts that had passed the jury’s scrutiny. Therefore, use of the facts in the plea agreement without the jury verdict violated the defendant’s right to jury trial under the Six Amendment. Following the Blakely decision, many court observers and scholars began to cast doubt over whether this ruling on Washington State’s guidelines was applicable to Federal Guidelines’ cases. The Booker (2005) case served as an extension of the ruling to the Federal Guidelines.

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determination beyond a reasonable doubt was unconstitutional. Because the ruling for the first issue was against the government’s arguments and undermined the validity of the Guidelines, the U.S. Supreme Court further considered the second issue to seek a remedy. The U.S. Supreme Court held that Federal Sentencing Guidelines were advisory, rather than mandatory. The advisory characteristic of the Guidelines statute “requires a sentencing court to consider Guidelines ranges, but it permits the court to tailor the sentence in light of other statutory concerns as well” (United States v. Booker, 2005, p. 246). As the U.S. Supreme Court noted, making Federal Guidelines advisory created “a strong connection between the sentence imposed and the offender’s real conduct” (United States v. Booker, 2005, p. 246). The mandatory characteristic of the Guidelines, as intended and written by Congress, would create a gap that failed to reflect an appropriate sentence on the offender’s real conduct associated with the offense charged (e.g., relevant conduct). The U.S. Supreme Court in Booker (2005) was apparently unwilling to overturn the Guidelines completely because of the enormous costs associated with their repeal. Instead, using a “severance and excision” approach (United States v. Booker, 2005, p. 258), the U.S. Supreme Court attempted to seek a middle ground with minimal consequences by retaining the Guidelines as well as the offender’s Sixth Amendment rights. As the U.S. Supreme Court stated clearly, the drafters of any statutes might not foresee all constitutional issues arising later, so that curing a constitutional conflict through modification should supersede repeal unless modification would be unlikely to accomplish the intended goal.

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Relevant Conduct and Federal Sentencing Guidelines As previously mentioned, the principle of relevant conduct (or called real-offense sentencing) is embedded in Federal Sentencing Guidelines as a unique feature to effectively carry out the goals of sentencing. Relevant conduct must consider all criminal acts in connection with the convicted offense. This includes all charges, counts, and prior actions and is determined on the standard of preponderance of the evidence by the judge (Stith & Cabranes, 1998; USSC §1B1.3, 2005). The main purpose of relevant conduct is to prevent prosecutors from circumventing the harshness of the Guidelines by dropping charges and exercising plea bargaining (Spohn, 2002; Stith & Cabranes, 1998;

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Wilkins & Steer, 1990). In particular, critics of Federal Guidelines charge that their implementation will shift discretion from judges to prosecutors (Albonetti, 1997; Heaney, 1991; Nagel & Schulhofer, 1992; Tonry, 1996) and that relevant conduct rules at least serve as a restraint on increased prosecutorial discretion. Therefore, although offenders may not be convicted of all potential charges associated with their criminal acts, judges are required to consider these acts at the time of sentence determination. Use of relevant conduct rules has raised a number of issues, many of which fail to follow the traditions of American criminal law. First, inclusion of uncharged or unconvicted acts in sentencing decisions does not comply with elements under the adversarial system, which assumes that the defendant is innocent until proven guilty. Second, punishment specified under the substantive criminal law is generally directed toward the convicted offense in order to avoid the likelihood of undue penalties meted out to defendants. Real-offense sentencing is inconsistent with the general principle of the substantive criminal law. Third, real-offense sentencing greatly undermines the goals of plea bargaining. It is estimated that more than 90% of the criminal cases are resolved by this common practice in criminal court. Because realoffense sentencing inevitably takes into consideration the charges settled in a plea negotiation (Spohn, 2002), the negotiation, which often occurs at a stage preceding sentencing, may become pointless. Finally, criminal convictions require evidence beyond a reasonable doubt. The requirement for incorporating uncharged or unconvicted acts into sentencing is based only on the standard of a preponderance of the evidence (Heaney, 1991; Stith & Cabranes, 1998). The adoption of this principle has also raised constitutional issues, particularly its conflict with the Fifth Amendment’s indictment by a grand jury and the Double Jeopardy Clause that prohibits repeated prosecutions for the same offense. The Fifth Amendment states the following: No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a grand jury…; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb… (United States Constitution, n.d.)

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The U.S. Supreme Court has addressed these constitutional issues in the cases that follow. Witte v. United States (1995) The U.S. Supreme Court in 1995 heard a case to resolve the conflict between Federal Guidelines and the Double Jeopardy Clause (Witte v. United States, 1995). Steven Kurt Witte was involved in international contraband trafficking and sale with several accomplices from Mexico and Guatemala. During a raid in August 1990, several of Witte’s accomplices were arrested, but never charged. Witte, along with an accomplice, Sam Kelly, later was engaged in another marijuana transaction in February 1991 that was set up by a federal undercover agent. Witte was arrested by federal agents in Texas and indicted by a federal grand jury for conspiring and attempting to possess marijuana with intent to distribute it. Because of Witte’s plea bargaining and cooperation with the prosecutor, the prosecutor promised to file a downward departure for substantial assistance if Witte was qualified. At the sentencing stage, the district court judge’s consideration of Witte’s sentence was based on the charged and convicted 1991 offense, the uncharged 1990 offense, and the substantial assistance downward departure. The uncharged 1990 offense was considered relevant conduct under the Federal Sentencing Guidelines §1B1.3. In the end, Witte received a prison sentence of 144 months after a downward departure from the original Guidelines range between 292 and 365 months. In September 1992, however, Witte was indicted by another grand jury for conspiring and attempting to import cocaine from Central America between August 1989 and August 1990. In a motion to dismiss the indictment, Witte contended that the 1990 importation scheme listed in the indictment had been contained in the previously charged and convicted 1991 offense as relevant conduct, resulting in a higher base offense level than it would have been otherwise. Witte argued that the new indictment, which included the old offense, violated his Fifth Amendment right with respect to the prohibition of double jeopardy. The district court agreed, dismissing Witte’s indictment. The Court of Appeals for the Fifth Circuit nonetheless reversed the lower court’s judgment. Witte appealed to the U.S. Supreme Court.

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The U.S. Supreme Court upheld the decision made by the Fifth Circuit, holding that “the use of relevant conduct to increase the punishment of a charged offense does not punish an offender for the relevant conduct” because such consideration was “within the legislatively authorized punishment range” (United States v. Witte, 1994, p. 258; Witte v. United States, 1995, pp. 395, 406). In rejecting the violation of the Double Jeopardy Clause, the U.S. Supreme Court justified its reasoning by equating the consideration of relevant behavior to that of prior convicted and unconvicted criminal behaviors. Criminal history has been used legitimately as a sentencing standard. While not attacking the validity of the Federal Guidelines in general, the Witte case legalized relevant conduct statutes as part of federal judicial sentencing considerations. United States v. Watts (1997) The case, United States v. Watts (1997), likewise tackled the issues in regards to relevant conduct under the Federal Guidelines. Vernon Watts was charged for the possession of cocaine base with the intent to distribute as well as firearm use related to this drug offense. The jury convicted Watts of the drug offense, but acquitted him of the use of a firearm. At the sentencing stage, the district court judge took into account his previous charge of firearm use as relevant conduct to the drug offense and sentenced Watts with aggravated penalties. The Court of Appeals for the Ninth Circuit reversed the district court’s decision. The prosecutor appealed and the U.S. Supreme Court disagreed. The key issue in Watts (1997) was whether the sentencing court’s consideration of the defendant’s previous offense that did not result in a conviction violated the Double Jeopardy Clause under the Fifth Amendment. The U.S. Supreme Court ruled that such conduct, by the preponderance of evidence, might be considered relevant conduct that would merit increased punishments in the subsequent sentencing decision. The rationale the U.S. Supreme Court relied on was that “acquittal on criminal charges does not prove that the defendant is innocent; it merely proves the existence of a reasonable doubt as to his guilt” (United States v. One Assortment of 89 Firearms, 1984). The U.S. Supreme Court concluded that as the preponderance standard for relevant conduct is a lower standard of proof than the proof beyond a reasonable doubt for criminal convictions, it is sensible to support the

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use of acquitted conduct as relevant conduct. The Watts decision, along with the Witte decision, clearly establishes the principle that relevant conduct includes offenses uncharged as well as those charged but unconvicted. The U.S. Supreme Court in Watts also affirms the rightly broad discretion of the sentencing judge.

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Edwards v. United States (1998) The U.S Supreme Court in 1998 heard a case involving a district court judge’s sentence based on charges for possession with intent to distribute two illegal drugs—cocaine and cocaine base (i.e., crack)— despite only one of the drug charges resulting in conviction by the jury. Vincent Edwards and his conspirators were indicted for conspiracy to possess with intent to distribute controlled substances. The jury’s verdict was based on the district judge’s instruction that the government must prove the amounts of controlled substances at issue that were cocaine or cocaine base (i.e., crack). After a verdict was handed down by the jury, the judge imposed a sentence on Edward with both cocaine and crack taken into consideration. Because of the “either…or” language rather than the “both…and” language in the judge’s instruction to the jury, Edwards challenged the sentence as illegitimate. The Seventh Circuit affirmed the district court’s decision. The issue in Edwards (1998) was whether federal judges could sentence a defendant for his or her involvement in two drugs, even though the jury’s verdict relied on the instruction in which the prosecution would have to prove the defendant’s conspiracy to possess with intent to distribute only one of the drugs. The U.S. Supreme Court unanimously rejected Edwards’s argument. Relying on Witte v. United States (1995) and United States v. Watts (1997) addressing the issue of relevant conduct, the U.S. Supreme Court held that relevant conduct included not only conduct convicted but also conduct considered “part of the same course of conduct or common scheme or plan as the offense of conviction” (USSC §1B1.3(a)(1)-(2), 2005). General Application of Federal Sentencing Guidelines Stinson v. United States (1993) The U.S. Supreme Court in Stinson v. United States (1993) gave a constitutional position to the commentary included in Federal

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Citizenship Status, Race/Ethnicity, and Sentencing

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Sentencing Guidelines.7 In this case, Terry Lynn Stinson was convicted of bank robbery with the possession of a firearm in Florida. Based on Stinson’s criminal history, it was recommended that the career offender statute under the Federal Guidelines apply to the Stinson case. Stinson disagreed with the definition of one of the requirements regarding the currently convicted felony as “a crime of violence” to extend to his possession of a firearm while robbing the bank (Stinson v. United States, 1993, p. 38). The District Court for the Middle District of Florida rejected Stinson’s claim and applied the career offender statute to Stinson’s offense. The Eleventh Circuit affirmed the lower court’s decision. In his appeal to the U.S. Supreme Court, Stinson relied on a newly added commentary that excluded the possession of a firearm by a felon from the definition of a crime of violence. He argued that the new commentary applied to his case retroactively. The main issue in Stinson was whether the commentary to the Federal Guidelines was binding on federal judges. The U.S. Supreme Court, relying on Williams v. United States (1992), ruled that insofar as it is consistent with the Guidelines themselves, the commentary to the Guidelines was equivalent to a policy statement, having authority over and being binding on federal judges. Therefore, Stinson was considered a career offender, and the final sentence for him carried enhanced penalties based on the career offender statute. United States v. Dunnigan (1993) The case in United States v. Dunnigan (1993) examined whether a Federal Sentencing Guidelines statute, §3C1.1, applied to a perjury case was constitutional. Sharon Dunnigan was indicted for conspiracy to distribute cocaine and refused to plead guilty. Despite a number of witnesses testifying against Dunnigan, she denied all charges. The jury then found Dunnigan guilty, and she was sentenced with a 2-level increase from the Guidelines offense base for her perjury at trial. During appeal, the Court of Appeals reversed the lower court judge’s 7

The commentary to Federal Sentencing Guidelines serves to interpret the statutory meaning of the Guidelines or how the Guidelines should be applied, to illustrate circumstances for departure decisions, and to provide background information that promulgates the Guidelines (USSC §1B1.7, 2005).

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decision that resulted in enhanced penalties. Subsequently, the prosecution appealed the case to the U.S. Supreme Court. The U.S. Supreme Court did not attempt to decide, as in Mistretta v. United States (1989), whether the Guidelines as a whole were unconstitutional. Instead, the issue before the U.S. Supreme Court was the extent to which Federal Sentencing Guidelines §3C1.1 applied to perjury. In their decision, the nine Justices unanimously agreed that Dunnigan’s willful intent to provide false testimony constituted perjury as interpreted by the Guidelines’ commentary about the obstruction of justice (USSC §3C1.1, 2005). The U.S. Supreme Court’s ruling in Dunnigan not only reiterated the position of the commentary to the Guidelines (see Stinson v. United States, 1993), but it also held that false testimony was not limited merely to the one with the willful intent. Therefore, the enhanced sentence based on perjury under the Federal Guidelines §3C1.1 did not conflict with the Constitution. Thus, Dunnigan’s sentence enhancement was upheld. Rita v. United States (2007) Rita v. United States (2007) led the U.S. Supreme Court to set a criterion of what reasonableness as to a sentence means, as manifested in United States v. Booker (2005). Victor Rita was contacted by the Bureau of Alcohol, Tobacco, and Firearms and Explosives (ATF) for assistance in investigating whether a company, InterOrdnance, imported machinegun parts kits in violation of registration statutes. When meeting a federal agent for the investigation of the firearm offense, Rita provided the agent with a different kit that he obtained from InterOrdnance after his contact with the ATF. Rita was later brought before a federal grand jury for testimony but denied being contacted by the ATF. The prosecutor claimed that Rita made false statements about the matter of investigating InterOrdnance’s firearm violations and indicted Rita for perjury. Rita was tried and convicted of perjury, and the recommended sentence for his offense was 33-41 months in prison. Rita sought to obtain a downward departure based on his previous role as a government informant, his military experiences, and his poor health conditions. The district court judge ultimately refused to grant a downward departure for Rita, who received a 33-month prison sentence. During appeal, Rita argued that the district court failed to consider his offender characteristics, resulting in an unreasonable

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sentence. The Fourth Circuit rejected Rita’s argument, holding that “a sentence imposed within the properly calculated Guidelines range…is presumptively reasonable” (Rita v. United States, 2007, p. 15). On appeal, the issue before the U.S. Supreme Court was how the lower courts determined reasonableness, as illustrated in Booker (2005), for an imposed sentence. The U.S. Supreme Court upheld the Fourth Circuit’s ruling that, without departing from the Guidelines range, reasonableness of a sentence is presumptively existent. Thus, the judge may continue to use discretion when deciding departures. The U.S. Supreme Court also noted the need for judges to provide reasons for his or her sentence, but emphasized it is unnecessary to give a detailed statement. Gall v. United States (2007) In April 2004, Brian Gall was indicted for conspiracy to distribute ecstasy, cocaine, and marijuana from May 1996 through October 2002. While being a student at the University of Iowa between 1999 and 2002, Gall also used these drugs but argued that he ceased his own drug use in September 2000. Gall accepted a plea agreement for being “responsible for, but did not necessarily distribute himself, at least 2,500 grams of [ecstasy], or the equivalent of at least 87.5 kilograms of marijuana” (Gall v. United States, 2007, p. 592). Because Gall voluntarily ceased using drugs, cooperated with authorities, and had no criminal records, the district court judge, overlooking the Guideline ranges of 30 to 37 months of imprisonment, gave Gall a 36-month probation sentence. The government appealed, arguing that the probation decision to depart from the advisory Federal Sentencing Guidelines was unreasonable. The Eighth Circuit agreed, holding that such a departure decision needed extraordinary reasons. The issue before the U.S. Supreme Court was whether extraordinary circumstances were needed to justify a downward departure under Booker (2005). The U.S. Supreme Court had to decide whether the district court judge abused his discretionary power in the post-Booker era and to what extent the advisory Guidelines helped judges shape their sentencing decisions. Notably, the Eighth Circuit already held in this case that the district court judge had to consider the relationship between the departure decision and unwarranted disparities.

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Despite its agreement with the argument that judges would have to give due consideration to departing from the advisory Guidelines, the U.S. Supreme Court rejected any quantitative methods used to assess the standard of reasonableness. Also, as the U.S. Supreme Court noted, the Guidelines had become only one of the factors in a judge’s sentencing decision since the Booker (2005) decision that viewed them as advisory. In other words, the judge’s discretion to grant downward departure decisions has no longer been narrowly confined to the Guidelines’ criteria. Regarding unwarranted disparities, the U.S. Supreme Court held that the judge’s reference to the Guidelines range was sufficient to constitute the consideration of the need to avoid unwarranted disparities among similarly situated offenders because the Guidelines themselves were designed to achieve this goal. The U.S. Supreme Court did not find any unreasonableness in the district court judge’s departure decision. Thus, Gall’s 36-month probation sentence based on a downward departure was reasonable. Kimbrough v. United States (2007) In Kimbrough v. United States (2007), the U.S. Supreme Court addressed a long-standing issue regarding the 100-to-1 drug quantity ratio under Federal Sentencing Guidelines. Derrick Kimbrough was indicted for four offenses that involved conspiracy to distribute both crack and power cocaine, possession with intent to distribute more than 50 grams of crack cocaine, possession with intent to distribute power cocaine, and possession of a firearm in furtherance of drug trafficking. He pleaded guilty to all four counts. These counts resulted in Kimbrough’s imprisonment, with the calculated Guidelines range between 228 and 270 months. Without crack cocaine involved, Kimbrough would have been given a range between 97 and 106 months. The district court judge ultimately imposed on Kimbrough the mandatory minimum sentence of 180 months calculated based on the four counts. However, on appeal, the Fourth Circuit vacated Kimbrough’s sentence, leading the prosecution to appeal to the U.S. Supreme Court. The issue before the U.S. Supreme Court in Kimbrough v. United States was whether “a sentence . . . outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses” (p. 564). In Rita (2007), the U.S. Supreme Court held that a sentence within the

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Guidelines range was presumptively reasonable. However, the U.S. Supreme Court in Kimbrough held that when a sentence within the Guidelines range was “greater than necessary” to achieve sentencing goals, judges might take into consideration the statutory differential between crack and powder cocaine (18 U.S.C. §3553(a)). In such matter, a downward departure stemming from the alteration in the applicable 100-to-1 drug quantity ratio to appropriately reflect the sentencing goals is permissible and should not be treated as unreasonable per se.

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FEDERAL SENTENCING GUIDELINES AND UNWARRANTED DISPARITY Experiencing a number of constitutional challenges, Federal Sentencing Guidelines ultimately survived in the Booker (2005) decision. The mandatory feature of the Guidelines prior to Booker (2005), along with the Protect Act of 2003 that greatly constrained federal judges from downwardly departing from the recommended Guidelines range, reduced sentencing disparities to some extent. However, with a series of the U.S. Supreme Court’s decisions, the original purpose of the SRA via the avenue of the Guidelines to curb judicial discretion and to achieve certainty, consistency, and fairness of sentencing has been overshadowed. Not only do federal judges have discretion to determine the extent of relevant conduct, but they also can opt not to apply the Guidelines to a particular case outright. Furthermore, since Booker (2005), much of the application of the Guidelines criteria to a case has relied on the standard of reasonableness (see also Gall v. United States, 2007; Kimbrough v. United States, 2007; Rita v. United States, 2007), which may create even greater uncertainty and disparity in future sentencing outcomes (Johnson, Ulmer, & Kramer, 2008). The Booker (2005) decision may lead those judges who have long criticized the Guidelines’ implementation to disregard them, even though other judges may continue to follow them because of their mechanical feature and convenience. Two surveys conducted by the Federal Judicial Center in 1992 and 1996 revealed that the majority of surveyed federal district and appellate judges opposed presumptive Guidelines (Federal Judicial Center, 1994; Johnson & Gilbert, 1997; see also Stith & Cabranes, 1998). It is evident that the Booker (2005)

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decision has once again opened the door for unwarranted disparity to play a role. In addition, criminologists and legal scholars have hotly debated over the degree to which Federal Sentencing Guidelines have achieved their goal of ensuring honesty, proportionality, and fairness in sentencing since their inception in 1987 (Stith & Cabranes, 1998; Tonry, 1996). Some scholars suggest that the Guidelines, which severely limit the judge’s discretion to tailor the sentence to fit the offense and the offender, have sacrificed fairness for uniformity. Stith and Cabranes (1998), for example, contend that “inter-judge uniformity is worse than inter-judge disparity if the uniformity comes at the price of prohibiting consideration of a morally relevant factor in sentencing or giving too much weight to a factor that is often not morally relevant” (p. 121). Other researchers argue that a body of empirical evidence shows, at most, the reduction of unwarranted disparity rather than its elimination (Spohn 2000; USSC, 2004). Judges continue to use individual characteristics as sentencing factors, and it is too early to assert that the goal of uniformity has been accomplished. Because of the Booker (2005) decision that has provided federal judges with an opportunity to circumvent the Guidelines’ stiffness, the debate over sentencing disparity in federal courts will not cease, indeed leaving plenty of room for continuing research on this area. Although none of the above U.S. Supreme Court’s cases address the impact of citizenship status on unwarranted disparity directly, these cases provide cues and highlight the importance for continuing research in this direction. First, the U.S. Supreme Court sanctions a fairly wide use of discretion in federal sentencing, especially with regard to penalty enhancements, relevant conduct, and substantial assistance. This also can be reflected in the U.S. Supreme Court’s ruling that prohibits judges from bypassing the jury’s inquiry into fact-finding (United States v. Booker, 2005). Second, Federal Sentencing Guidelines are now advisory, not mandatory. A number of studies in the pre-Booker era have found significant sentencing disparity stemming from citizenship status (Albonetti, 1997, 1998; Demuth, 2002; Johnson et al., 2008; Mustard, 2001; Kautt & DeLone, 2006). Sentencing disparity based on citizenship status may be reinforced, rather than be reduced, in the post-Booker era under the advisory Federal Guidelines. Finally, the application of seemingly straightforward jurisprudence (e.g., departures and enhancements in sentencing) is not clear cut, and it can

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be interpreted as appropriate by one level of appeal and inappropriate at another level. These cases expose the federal sentencing judge’s vulnerability to making legally unsustainable discretionary decisions and the judicial branch’s less than cohesive agreement on the appropriate use of offender information. Citizenship is arguably one of the vulnerable extralegal issues that can come into play in federal sentencing decisions, especially in terms of departures and enhancements. Chapter Three will present the theoretical arguments to explain judicial decision making and the empirical findings that support this concern.

CHAPTER 3

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Theoretical Perspectives and Review of Research

This study proposes an integrated theoretical framework using conflict theory, typification theory, threat hypotheses, and other emerging sentencing theories to explain the independent and interactive effects of citizenship status and race/ethnicity on sentencing outcomes. This study employs conflict theory to explain the effects of citizenship status and typification theory to explain the effects of race/ethnicity. Threat hypotheses embedded in the two theories are used to understand the interactive relationship of citizenship and race/ethnicity. Additional theories, such as focal concerns and uncertainty avoidance, have been developed to encompass the threat hypothesis. The overlap between these theories and the threat hypothesis not only serves to guide judges to predict the future behavior of offenders but also helps them make sentencing decisions. These additional theories, therefore, are part of the integrated theoretical framework. Much of the contemporary research on racial sentencing disparities has employed conflict theory as the key theoretical framework (e.g., Everett & Wojtkiewicz, 2002; Kempf-Leonard & Austin, 1986; Lizotte, 1978; Maxwell, Robinson, & Post, 2003; Mitchell, 2005; Pratt, 1998; Sampson & Laub, 1993; Spohn, 1994; Tinker, Quiring, & Pimentel, 1985; Unnever, Frazier, & Henretta, 1980; Wooldredge, 1998). In a sentencing setting, this approach holds that racial minorities receive more severe sentencing outcomes than do their similarly situated White counterparts. Given that most racial minorities are powerless, they are less likely than Whites to mobilize their rights; they are less able to make bail to avoid pretrial detention or hire experienced attorneys to 43

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represent them at trial. The lack of equal political and economic power to change the status quo, in turn, makes racial minorities largely disadvantaged in the process of criminal justice decision making. While research hypotheses regarding sentencing outcomes based on conflict theory are fairly consistent in their wording, they often do not clearly link original group-level conflict theory and individual-level conflict theory. Additionally, current sentencing research focuses little attention on class beyond unemployment status and researchers are often careless in the expansion of conflict beyond class to include race, ethnicity and citizenship status. These two limitations greatly undermine the utility of conflict theory in the sentencing literature. This study seeks to apply the modified conflict theory (i.e., a new theoretical move from the group-level relationship to the individuallevel relationship) to an explanation of how individual-based decisions of criminal sentencing are impacted by race, ethnicity, and citizenship status. While the subordinate statuses of race, ethnicity, and noncitizenship overlap with the original causal concept of “class” powerlessness, sentencing research needs a more thoughtful development of these connections.

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CONFLICT THEORY: ORIGIN AND GROUP RELATIONSHIPS Conflict, as opposed to consensus, is rooted in disagreement of interests among social classes. During the process of pursuing interests from different perspectives, inequality and power play key roles in shaping political, social, and economic gaps. As Chambliss (1975) argues, conflict theory is structured in the political-economic aspect and places its emphasis on class relations. Hawkins (1987) similarly argues that early works relating to conflict theory (e.g., Chambliss & Seidman, 1971; Quinney, 1970) “generally refer to social class rather than racial differences in the administration of criminal justice” (p. 722). In Hawkins’s viewpoint, race or ethnicity is not the primary component within the conflict theoretical framework, but social class is. The early version of conflict theory can be best understood in terms of Karl Marx’s explanation of the historical development of capitalism. A fundamental concept of historical materialism identifies that capitalism is built on relations of conflict rather than consensus. According to Marx, a capitalist society, which has a system of free-

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competition and exploitation, inevitably creates two social classes with opposing goals: one is the owner of production (i.e., the bourgeoisie) and the other is the worker of production (i.e., the proletariat) (Voigt, Thornton, Barrile, & Seaman, 1994; Vold, Bernard, & Snipes, 2002; for an analysis of the Marxian base-superstructure model, see Sutton, 2001; Spitzer, 1975). Conflict developing from Marx’s capitalism embraces two central themes―power and inequality, which are fundamental conditions that maintain two social classes with polarizing interests. As Marx and Engels (1947) note, the relations of production that characterize capitalism have an influence far beyond the market place.

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The class which has the means of material production at its disposal, has control at the same time over the means of mental production, so that thereby, generally speaking, the ideas of those who lack the means of mental production are subject to it. (p. 39) Marx and Engels’s (1947) argument suggests that capitalist elites use law to defend their dominant interests by enhancing social control (e.g., enforcing the law favorable to the elites’ interests) through the criminal justice system. The processing of underclass offenders by the police, the courts, and the corrections system mirrors the enduring gap within capitalist society. Reiman (1998) argues that the relationship between capitalism and the operation of the criminal justice system presents the fact that “the rich get richer and the poor get prison” (p. viii). Even when the rich (or the upper class) engage in demoralizing activity, their behavior is tolerated either by the law or by court officials based on the exercise of discretion (Foucault, 1977). Building on Karl Marx’s concepts of capitalist conflict, conflict theorists developed various conflict perspectives. Despite variation in theoretical components, early conflict theorists paid great attention to group relationships; that is, criminal sanctions are created by privileged classes in favor of their own interests (Barak, Leighton, & Flavin, 2007). The conflict perspective builds on the interaction between the powerful and the powerless (or between the upper class and the underclass). Group conflict theorists view diverse interests as polarizing, operating in the course of a vertical distribution toward antagonism (Vold et al., 2002). Whenever power is available, it is used

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Citizenship Status, Race/Ethnicity, and Sentencing

as a tool to manipulate interests in politics, legislation, and economic markets in order to fulfill specific goals for those in the upper class. In the same vein, power becomes a weapon used to safeguard the acquired interests of the powerful. In short, early conflict theorists argue that the unequal power structure in society helps the upper class shape the law congruent with their interests and act to define the behavior of the underclass as criminal (see Quinney, 1970; Turk, 1969). Vold (1958) proposes group conflict theory to explain how the unequal power structure plays an important role among groups with diverse interests. This theory contends that each group strives to advocate and defend its own interests via the avenue of legislation, but only the most powerful groups, often those at the top of social ladders, are able to get the proposed bill passed. Vold (1958) argues that groups introducing new legislation are less likely to violate such laws, because the enactment of the law is reflective of the ruling classes’ interests and expectations. Dominant groups are often those who have the power to define some behavior as criminal in different social aspects. In contrast, the powerless groups, often racial and ethnic minorities, are insensitive to legislation passed by groups in power and tend to violate the law frequently because of conflicting interests (Vold, 1958). Quinney (1970) further elaborates Vold’s (1958) group conflict theory by bringing conceptions of crime to the political context with hierarchical social divisions and emphasizing that the creation and application of criminal laws are based on an elite perspective. That is, criminal justice agencies are tailored to suit the needs of the contemporary political agenda, so that the powerless can refrain from criminal labeling only when they become highly conscious of the interests that powerful groups pursue (Chambliss & Seidman, 1971). Quinney (1970) emphasizes the importance of organization to promote interests, but he also notes that minorities often lack motive or power to form interest groups to advocate legislation beneficial to them and oppose legislation implemented against them. Historically, conflicts of interest between Whites and Blacks have more or less mirrored Vold’s (1958) version of group conflict theory. The conflict perspective, therefore, is one of the most popular theories used to explain the overrepresentation of the Black population across all criminal justice agencies. The term “conflict” is associated with power inequality between dominant groups and minorities, threats that

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minorities may pose, and social control implemented by dominant groups. With regard to disparity within the criminal justice system, group conflict theory tends to explain why racial/ethnic minority groups have higher rates of arrest, conviction, and incarceration than their White counterparts. Conflict theory holds that, in an attempt to preserve the power gap, the ruling groups shape criminal statutes and utilize the functions of criminal justice agencies to repress threats from other minority groups for the achievement of social control (Collins, 1995; Quinney, 1995). That is, disparity in the criminal justice system symbolizes the mechanism by which social stratification in the fundamental economic relationships in society has to remain (see Sutton, 2001). Court systems, specifically the roles played by judges in courtrooms, represent the elite’s ability to retain unequal power relationships. Courts have become a place for the privileged to exercise power as a means to maintain conflict (Gibson, 1978; see also Turk, 1976). A similar claim based on the substantive political perspective also suggests that judicial decision making takes into account the offender’s less privileged social class and social status (Dixon, 1995). Group conflict theory has been used to explain the disproportionate incarceration rates of powerless groups in America and in other western societies. Dependent variables such as court commitments to incarceration and prison populations have been theorized as dependent on factors such as economic relations, political needs, and judicial ideology (for a review, see Chiricos & DeLone, 1992). While explanatory variables representing the concept of class are used in macro-level analyses, strong evidence of the sometimes direct and often indirect influence of racial composition in sentencing jurisdictions has also emerged as central indicator of the differential use of criminal justice system sanctions toward powerless groups (i.e., the poor and racial minorities). The previous empirical work on class- or race-based conflict theory in the criminological literature has largely framed the components of this theory through group relationships and macro-level analysis (e.g., Bridges & Crutchfield, 1988; Bridges, Crutchfield, & Simpson, 1987; Chamlin & Liska, 1992; Holmes, Smith, Freng, & Muňoz, 2008; Liska, Chamlin, & Reed, 1985; Mitchell, 2005; Warner, 1992; see also Tittle, 1994). At the macro level, groups struggle to retain power for the maintenance of their own interests (i.e., to keep the

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gap). Conflict theorists do not argue that minorities hold no power; instead, these theorists allege that the disparate distribution of power fosters outcomes in which members of different groups will receive differential, unequal treatment. The relationship between the disparate distribution of power and differential treatment is enhanced by the threat posed by minority groups. Minorities therefore are unfavorably treated, as opposed to members in dominant groups who necessarily act beneficially toward themselves. A common hypothesis in sentencing with respect to group relationships is that areas characterized by higher percentages of racial/ethnic minorities have great sentencing disparity (Bridges & Crutchfield, 1988; Bridges et al., 1987), because court members are more threatened by a stronger racial/ethnic minority presence. In sum, despite inconsistent findings, some studies have showed empirical support for this proposition (Bridges & Crutchfield, 1988; Myers & Talarico, 1987; Ulmer & Johnson, 2004; Weidner & Frase, 2001).

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CONFLICT THEORY: MODFICATIONS AND INDIVIDUALLEVEL ANALYSIS As macro-level research based on group conflict theory starts to reveal the importance of power relations in the operation of the criminal justice system, two complimentary lines of theory modification emerge to: (1) extend research to the individual level of criminal case processing and (2) extend the exploration of powerless groups beyond economic class position to the powerlessness of racial and ethnic stratification. Recent inquiries about conflict theory have modified its theoretical application by shifting emphasis to individual-level relationships. This is particularly evident in examples involving the disposition of offenders by criminal justice personnel. A micro-level analysis of conflict theory emphasizes the differential treatment of individuals regarding case processing within the criminal justice system. According to Tittle (1994), [T]he probability of a social entity’s (an individual, subgroup, or category of individuals) being subject to social control (being processed and ultimately sanctioned) varies inversely with the ability to resist. The capability of resistance is

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regarded as a product of the general level of power in society held by the social entity, the entity’s capacity for marshalling resources, or by the entity’s skill in manipulating the circumstances (interpersonal power in the case of individuals). (p. 36) Analysis at the individual level does not use aggregate data. Rather, such an analysis predicts the effect of each independent variable directly from each individual case in the data set. For example, researchers may hypothesize that minority offenders are more likely than Whites to be incarcerated and to receive longer sentences, because minorities, who are often poor and powerless, are perceived as dangerous individuals who threaten the public order (cf. Bridges & Crutchfield, 1988; Bridges et al., 1987). Unlike a macro-level relationship that stresses the impact of area social structure (i.e., aggregate differences), a micro-level relationship centers on how individual characteristics predict disparity (i.e., individual differences). As conflict theory suggests, maintaining the power of the ruling class is of paramount interest (see Quinney, 1970, 1973; Turk, 1969). The privileged elite may exercise discretion derived from occupational positions to exclude potential threats to the interests of the dominant groups. For example, judicial authority and decision making in criminal courts represent the exercise of control flowing from the powerful to the powerless. This is done to maintain their interests, which, broadly speaking, range from political power and socioeconomic status to century-long traditions or values embedded in American society. The judicial elites may endeavor to maintain these interests through the exercise of their power in judicial decision making, and the effects of the actions taken by the judicial elites are often reflected in differences in sentencing outcomes for individual offenders. Federal sentencing has come under scrutiny for several years because different groups of felony offenders receive inconsistent sentences. It continues to be the case in American society that issues of class position for individual offenders are difficult to be separated from the disadvantaged statuses of race and ethnicity. The complex interplay of race/ethnicity and class may be conditioned by other predictors as well. In her review of 30 years of sentencing reform, Spohn (2000) concluded that when racial/ethnic minorities were young, male, and

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unemployed, their likelihood of receiving severe sentences was higher than it was for Whites. Likewise, Barak et al. (2007) noted that offender characteristics, such as class, race/ethnicity, gender, employment, and economic status, were not factors that were considered individually in the sentencing process, but instead these characteristics would intersect with one another to determine the degree to which racial minorities were sentenced. Several studies focusing on federal sentencing have found evidence to support the effect of race/ethnicity as predicted by conflict theory (Everett & Wojtkiewicz, 2002; Kempf-Leonard & Sample, 2001; Mustard, 2001; Pasko, 2002; Spohn, 2005; Steffensmeier & Demuth, 2000; Wooldredge, 1998). For example, Steffensmeier and Demuth’s (2000) concluded that Hispanic offenders, especially those whose offenses were drug-related, received the most severe punishments in federal courts. Greater disadvantages were found for Hispanics than for African Americans because of perceptions regarding threatened job opportunities and drug use. Moreover, Everett & Wojtkiewicz (2002) examined racial/ethnic disparity in the ordered categories of sentence length in federal courts. They included Asian, Black, Hispanic, and Native American offenders in their analyses. Their findings revealed that Black, Hispanic, and Native American offenders were more likely than Whites to receive longer sentences.

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CONFLICT THEORY: EXTENSION TO CITIZENSHIP STATUS The extension of group conflict theory to citizenship has not yet been attempted. For example, an extension of group conflict theory could include an examination of the size of the impact of the non-citizen population in a jurisdiction on criminal justice decision making; criminal punishments (i.e., incarceration rates) may be higher for groups of non-citizens. The makeup of the non-citizen population, particularly the size of the population associated predominantly with illegal residency or terrorist-linked countries, could also impact the harshness of punishment. As noted earlier, the use of individual-level conflict theory to explore disparate outcomes for disadvantaged offenders has guided sentencing research for several decades. Moreover, the use of offender characteristics in addition to legal variables to explain the incarceration

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decision or the prison sentence length decision has been common. Characterized as legally irrelevant factors, offender characteristics, such as race (Mitchell, 2005; Spohn, 2000), gender (Daly & Bordt, 1995), age (Steffensmeier et al., 1995; Steffensmeier & Motivans, 2000), and employment status (Chiricos & Bales, 1991; Chiricos & Crawford, 1995; Nobiling et al., 1998), continue to impact modern sentencing. Recent calls for research on the impact of citizenship status on sentencing outcomes have emerged (e.g., Demuth, 2002). Clearly, it is theoretically and empirically important to direct sentencing research in this direction. As previously mentioned, the early work on class- or race-based conflict theory in criminology primarily examined group relationships at the macro level (e.g., Bridges & Crutchfield, 1988; Bridges et al., 1987; Chamlin & Liska, 1992; Holmes et al., 2008; Liska et al., 1985; Warner, 1992; see also Tittle, 1994). Although some sentencing studies have used conflict theory to explain disparities at the individual level, this line of inquiry is primarily confined to the influence of offender class and race (e.g., Chiricos & Waldo, 1975; Everett & Wojtkiewicz, 2002; Lizotte, 1978; Myers & Talarico, 1986; Wooldredge, 1998). A few studies do extend conflict criminology to explain gender-based differential treatment in the sentencing process (Franklin & Fearn, 2008; Kruttschnitt, 1980-1981, 1984; Kruttschnitt & Green, 1984). Furthermore, there are studies that have paid attention to immigration, but they focus either on macro-level effects (e.g., Brown & Warner, 1992) or on group relationships (e.g., Sellin, 1938). While Brown and Warner (1992) test conflict theory by examining differential treatment between immigrants and non-immigrants, their study explores disparity in law enforcement rather than sentencing. In short, criminological research has not extended beyond class, race, and gender to analyze the effect of citizenship status on criminal sentencing at the individual level. The current study will fill this research gap. As early as in the late 1930s, Thorsten Sellin used conflict theory to explain the relationship between immigration and disparate treatment in the criminal justice system. Sellin (1938) proposed cultural conflict criminology to account for criminal behavior and outlined two types of cultural conflicts. The first type pertains to primary cultural conflicts, which may occur around border areas where typically two or more cultures exist, in areas where the laws of one new culture appear to replace those of the old culture, or in areas where migrants import their

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own culture (Sellin, 1938; see also Vold et al., 2002). There are also secondary cultural conflicts, which refer to “[t]he conflicts of norms which grow out of the process of social differentiation which characterize the evolution of our own culture” (Sellin, 1938, p. 105). Sellin (1938) explained how conflicts between immigrants and Americans are primary cultural conflicts. Sellin (1938) found disparate treatment for immigrants versus Americans in the criminal justice system, and attributed part of the disparity to the origin of the immigrant. According to Sellin (1938),

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Whatever the reason he is more likely to be arrested and convicted, and when sent to prison he is likely to go with a heavier sentence than is the native born. Membership in an immigrant group, especially when the social distance between that group and the dominant community group is great means artificially raised crime rates and the researcher is compelled to take this into account in his studies. (p. 73) Citing examples provided by Smith (1937) and Robison (1936), Sellin (1938) noted that some cohesive immigrant communities, such as the Japanese, resolved criminal events within their own communities in an attempt to avoid unfavorable treatment by the criminal justice system. The reason was due not only to the identity of immigration but also to conflicting values with regard to the severity of punishment. The theoretical application of the conflict tradition to immigrants’ criminality by Sellin (1938) has been later extended to criminal justice processing. This line of investigation generally follows a broad social control concept. In linking conflict theory to social control, Liska (1994) stresses a consensus among different versions of conflict theory, which suggests a positive association between the relative size of the powerless and threat to the powerful. According to Liska (1994), conflict theorists use different terms to characterize the powerless, such as “the surplus”, “culturally dissimilar”, “minority”, or “problematic population” (pp. 61-64). Non-citizens fall well into all of these categories, being subject to intensified social control. Drawing on the concept of social control, criminologists have attempted to understand how political, economic, and social conflicts brought about by immigrants promote the dominant class to reinforce their social control

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through a greater number of police arrests. For example, Brown and Warner (1992, 1995) employed conflict theory to examine whether the number of immigrants contributes to changes in the police arrest rate. Using the conflict tradition to explain why immigrants receive harsher punishment, however, has not been systematically assessed. In applying conflict theory to account for citizenship status in addition to race/ethnicity, the difficulties (as previously mentioned) in defining who is a member of the powerful group and who is not, maintaining racial neutrality in decision making, conceptualizing the relationship between race/ethnicity or social status and conflict, and emphasizing invariability across minority groups can be reduced to a minimum. Unlike their U.S. counterparts, non-U.S. citizens have been legally excluded from certain social welfare benefits (e.g., federal employment) and constitutional civil rights (e.g., voting).8 Non-U.S. citizens are also less likely to receive employer-sponsored health insurance and government medical care (Carrasquillo, Carrasquillo, & Shea, 2000). The label of “second-class residents” is not uncommon for immigrants in almost all countries. Recent immigrants, such as Asians and Hispanics, have faced disadvantages and difficulties assimilating into the American mainstream culture. This was also true for European immigrants in the early 1900s (Healey, 2003; Kromkowski, 1986). U.S. immigration policies, while in some periods of time favoring immigrants to help develop the country, were not consistent towards all immigration groups (Welch, 2002). Some groups were discriminatorily targeted during some periods of time in the history. The Chinese Exclusion Act of 1882 reflected strong hostility toward Chinese immigrants (Welch, 2002). Later, in the early 20th century, the Immigration Act of 1917 identified immigrants from Southern and Eastern Europe as unwelcome because some of countries in this region were related to waging World War I, and the Immigrant Act of 1924 restricted Asian, African, and Jewish immigrants (Welch, 2002). Conflicts between non-U.S. and U.S. citizens are notable in other economic, political, and social arenas as well. U.S. immigration policies change and follow the economy’s ebb and flow. Non-citizens,

8

Current attempts to limit the civil liberties of non-U.S. citizens are discussed in Chapter One.

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especially Mexican nationals, were deemed undesirable in the 1930s when the Great Depression severely hit the entire country, but the demand for non-citizen laborers largely increased when a large number of American workers were recruited for World War II, the Korean War, and the Vietnam War (Welch, 2002). The recent economic recession that has been considered the most serious one since the Great Depression has fostered two Senators to propose a bill that requires government-aided banks to hire only Americans, raising the policies of protectionism and nativism (Jones, 2009). The historical evidence is supported by public opinion surveys, which indicate a positive correlation between the support of a relaxed immigration policy and the unemployment rate (Espenshade & Belanger, 1998). Conflict theorists have bifurcated explanations for non-citizen employment and the economy. On the one hand, the business elite attempts to preserve the power gap in economic domination by advocating loose immigration policy. The benefits of such policy include lowered pay for non-citizens, reduced spending in social welfare for employees, decreased disputes between organized laborers and the management, and increased profits and commercial interests for the company (Lee, 1998). This theoretical argument is consistent with the class conflict theory’s argument about the influence of the unequal power structure on law and public policy (Quinney, 1970; Turk, 1969). On the other hand, the elite in other sections of society feel that noncitizen employees deprive U.S citizens of employment opportunities. According to conflict theorists who argue similarly, the issue does not lie in whether non-citizens are to be controlled in an easy way. Rather, it lies in how non-citizens’ sharing of public resources poses serious threats to mainstream society. This argument is similar to Vold’s (1958) group conflict theory. In short, the two conflict perspectives mirror some people’s express concern that contemporary policies related to immigration and the economy benefit the upper class but not the underclass or the middle-class (see Lee, 1998). In the political arena, as mentioned in Chapter One, Congress passed the Real ID Act of 2005 to strictly restrain non-citizens from receiving state driver’s licenses and identification cards in the aftermath of the 911 attack. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) authorized speedy detention and deportation for convicted legal and illegal non-U.S. citizens, even

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though their offenses were classified as minor infractions for U.S. citizens under normal circumstances (Welch, 2002). In the social aspect, the 1996 IIRAIRA and the Welfare Reform Act slashed non-U.S. citizens’ federal social welfare (e.g., social security benefits) on a large scale, regardless of their legal status (for a discussion, see Espenshade, Baraka, & Huber, 1997). Because of its harshness toward non-U.S. citizens, especially those who were U.S. permanent residents, the implementation of the 1996 IIRAIRA resulted in an unprecedented wave of naturalization that peaked in 1999 and 2000 (DHS, 2007). More recently, nativists have initiated the “English-only movement” in more than half of the states. For example, House Representative Bob Bar introduced the English Language Unity Act of 2001 (H.R. 1984) to Congress (Mata & Herrerias, 2006). While ending in the Subcommittee on Education Reform and never becoming law, this bill has reflected the deep social threat of immigration posed to American tradition. At the state level, California voters in 1994 overwhelmingly passed Proposition 187, which excluded undocumented aliens from public education, nonemergency health care, and social services (Mata & Herrerias, 2006). In short, the immigration policies from economic, political, and social aspects illustrate how enhanced social control by governmental actions has been aimed at non-U.S. citizens and that the line between non-citizens and citizens should be unambiguously drawn. In addition, social exclusion is a means for the powerful to achieve the goal of social control. According to Young (2002), “social exclusion can involve not only social but also economic, political, and spatial exclusion, as well as lack of assess to specific desiderata such as information, medical provision, housing, policing, security, etc” (p. 457). Social exclusion is not only a unique phenomenon to the poor native underclass but also to non-U.S. citizens. In fact, immigrants are grouped with the underclass, welfare dependants, drug users, and criminals as the targets of social exclusion (see Young, 2002). Legal and cultural restraints imposed on immigrants have generated substantial difficulty for them to elevate to a dominant position within society. Relative to U.S. citizens, non-U.S. citizens are more unaware of legislation passed by groups in power because of cultural and language barriers; they are, therefore, likely to unknowingly break the law easily. There is little doubt that non-U.S. citizens are defined as politically powerless on the legislative agenda (see Liska, 1992).

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Fewer opportunities for participation in political and legislative affairs exist for non-U.S. citizens than for U.S. citizens. Also according to Hawkins’s (1987) concern about the narrow focus of conflict theory on only offender race/ethnicity, his contingent factor—region—can be interpreted not only as the geographical area where an offender is adjudicated but also as the country where an offender originates—i.e., their place of citizenship. Contrasting non-U.S. citizens with U.S. citizens based on conflict theory goes beyond examinations of racial differences. There is an additional justification for employing conflict theory as the theoretical foundation to explain sentencing disparity between nonU.S. and U.S. citizens. Since the early 1990s, the influx of a growing number of legal and illegal immigrants has led to increasing competition for education, employment, and other public resources (Steffensmeier & Demuth, 2000, 2001). Immigrants have introduced different cultures, languages, and lifestyles into American society and this, in turn, has triggered conflicts among social groups (Blalock, 1967; Steffensmeier & Demuth, 2000, 2001). Valenzuela (2006) discusses daily workplace violence, external violence, client-initiated violence, internal violence, and structural violence that non-citizen day laborers face on a daily basis. These types of violence that non-U.S. citizens are more likely than U.S. citizens to encounter reflect the reality that powerless non-citizens lack assistance or resources to combat harassment, intimidation, and violence levied against them. Brown and Warner (1992) noted that “Increasing numbers of immigrants presented political, economic, and cultural threats to the hegemony of native-born middle- and upper-class Americans” (p. 293). Building on the conflict theory and the threat hypothesis, Brown and Warner (1992) attempted to understand the extent to which immigration has had an effect on arrest rates, an indicator of social control operationalized in another criminal justice setting—policing. Clearly, the presence of non-U.S. citizens has a great impact on different classes of American society. Non-citizens are nonetheless not treated the same as citizens. In the sentencing setting, thus, conflict theory suggests that sentencing outcomes will differ in terms of an offender’s citizenship status, with non-U.S. citizens sentenced more harshly than their U.S. counterparts.

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As conflict theory suggests, maintaining the powers of the ruling class is of paramount interest (see Quinney, 1970, 1973; Turk, 1969). The privileged elite may exercise discretion derived from occupational positions to exclude potential threats. For example, judicial authority and decision making in the criminal court represents the exercise of control flowing from the powerful to the powerless. These interests, broadly speaking, range from political powers and socioeconomic status to century-long traditions or values embedded in American society. Sharing with Europeans a similar cultural background and living standards, elite Americans may feel that offenses committed by European immigrants corrode American traditions. From an economic standpoint, immigrants from developed European countries and many Asian countries often have high levels of education that serve as an advantage to compete in the U.S. job market, threatening the status of economic inequality expected by the middle and upper classes (Myers, 1987). Judges, as members of the privileged class, act to retain national interests, in general, and a privileged position, in particular, by handing down differential sentences via discretion permitted under the law. Judges reflect their intolerance of offenses committed by non-U.S. citizens when they hand down their sentencing decisions. Non-U.S. citizens, no matter what social status they have in their home countries, are often portrayed as second-class residents in the U.S. and receive less favorable benefits than U.S. citizens. Therefore, according to conflict theory, non-citizen sentences will differ in the degree of harshness by the economic conditions of an offender’s country of origin. Compared to Asian and White Americans, sentences given to non-U.S. citizens from high GDP countries will be more severe. Similarly, non-U.S. citizens from low GDP countries will receive more severe sentences than Black and Hispanic Americans.

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TOWARD AN INTEGRATION PERSPECTIVE Conflict theory alone does not fully explain the relationship between race/ethnicity and sentencing outcomes. To apply the conflict hypothesis to race and case processing, unfavorable sentencing outcomes would have to be invariant across all minority groups. Nonetheless, an examination of the effects of race or ethnicity for unwarranted sentencing disparity fails to explain why Asians and Native Americans do not receive harsher treatment than their White

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counterparts (see Everett & Nienstedt, 1999; Everett & Wojtkiewicz, 2002; Pasko, 2002; Engen, Gainey, & Steen, 1999; Engen & Steen, 2000; Schanzenbach, 2004; cf. Mustard, 2001). Asians, like other racial and ethnic groups that are dissimilar to Whites, do not play a more dominant role in the decision making process than Blacks or Hispanics. If racial or ethnic disparities in sentencing outcomes were explained based solely on the oppression of minorities in order to maintain the interests of the dominant Whites, then Asian offenders would have to be treated similarly to Black and Hispanic offenders rather than to White offenders. Nonetheless, Asian offenders in the sentencing process are treated more similarly to White offenders than to Black or Hispanic offenders. Thus, additional theoretical perspectives are needed to appropriately explain the extent to which offenders’ citizenship status and race/ethnicity jointly affect judicial sentencing decisions. In the recent exploration of the impact of offender characteristics on sentencing severity, two theoretical traditions have become prominent: typification theory and threat hypotheses. This section will describe the theoretical assumptions of these perspectives and how they have been used to explain the influence of an offender’s race and ethnicity on sentencing outcomes. Each section ends with a discussion of how these ideas can be used to: (1) contribute to the development of research questions about citizenship and (2) serve as a foundation to strengthen the use of conflict theory to explain judicial decision making. This section will be followed by a proposed integrated theory for the current study.

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TYPIFICATION THEORY Criminologists have developed typification theory to explain the mechanisms by which offender characteristics affect the attitudes of the general public and dispositions in the criminal justice system (Chiricos, Welch, & Gertz, 2004; Roberts, 1993; Russell, 1998; Welch, 2007). Typification theory suggests that there is a general perception in American society that crime and individual characteristics are connected (Chiricos et al., 2004). The concept of typification has been used to explain the relationship between race and crime (Roberts, 1993), the relationship between race and racial profiling (Welch, 2007), and attitudes toward severe criminal punishment (Chiricos et al., 2004).

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Applied to the relationship between race/ethnicity and crime, typification theory posits that the general public associate race and ethnicity with crime, particularly street crime, and believe that Blacks and Hispanics are responsible for a large volume of serious crime (Chiricos et al., 2004; Crawford, Chiricos, & Kleck, 1998; LaFree, 1995; Russell, 1998). This, in turn, results in a negative image in which Blacks and Hispanics are equated with criminals. According to Beckett and Sasson (2000, p. 135), the link between race and crime is the product of “modern racism,” which leads to punitive attitudes toward perceived criminal offenders through the exercise of a subconscious stereotyping process. For instance, “young black males are stereotyped by the five ‘ds’: dumb, deprived, dangerous, deviant, and disturbed” (Gibbs, 1988, pp. 2-3). Similarly, mainstream society often characterizes Hispanics as the underclass, being poor, lazy, uneducated, irresponsible, combative, cruel, and violence-prone (Fairchild & Cozens, 1981; Guichard & Connolly, 1977; Healey, 2003; Marin, 1984; Mata & Herrerias, 2006). The public also stereotype Hispanics as members of street gangs, frequently taking part in gun violence and drug-related offenses (Mata & Herrerias, 2006; Portillos, 2006; Zatz & Krecker, 2000; Zatz & Portillos, 2000). The war on drugs is an example of how typification plays a role in criminal justice (Chambliss, 2003; Lusane, 1991; Welch, 2007). Severe penalties for crack cocaine have led the media and the public to believe that crack cocaine causes more serious problems than powder cocaine. The moral panic over crack cocaine draws the considerable attention of law enforcement to suppress this type of drug offense, as if it were the only drug type that was corrupting American society (Chiricos, 1998; Welch, 2007). Regarding sentencing, the 100-to-1 quantity ratio for crack cocaine versus powder cocaine offenses under Federal Sentencing Guidelines generated 82.7% of incarcerated Black offenders in the category of crack cocaine in 2007, compared to 7.9% for Hispanics and 8.8% for Whites (USSC, 2007). Because crack cocaine is less expensive than powder cocaine, most of its users are minorities, particularly in Black communities. As a result, not only do the public tend to link the drug problem to Black communities, but law enforcement officials and judges apply laws in a discriminatory manner by targeting Blacks (Chambliss, 2003; Lusane, 1991; Tonry, 1995). Because a large number of Black offenders are serving longer sentences than most White offenders whose offenses involve powder

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cocaine, the difference in the severity of penalties between crack cocaine and power cocaine also highlights the stereotyping of Blacks as the key players in drug markets as well as in the criminal justice system. In addition, the government’s crackdown against drug trafficking and sale has concentrated on Hispanic communities, particularly in cities highly populated by Hispanics such as Phoenix, Arizona (Zatz & Portillos, 2000). Blacks and Hispanics living in low socioeconomic neighborhoods have been depicted as the problematic population of the underground drug economy. In a court setting, judges, who generally have limited information about the crime and the offender (Albonetti, 1991), may view Blacks and Hispanics as more dangerous, more violent, and less amenable to rehabilitation than Whites (Steffensmeier & Demuth, 2000). Images of dangerousness to the community, coupled with constraints placed on information available to judges and concerns about the efficiency of case processing, may lead judges to more readily hold the two groups of offenders more culpable than other racial/ethnic groups (Steen, Engen, & Gainey, 2005). Judges’ perceptions may be intensified by the disproportionate presence of Black and Hispanic offenders in criminal courts. Judges, in turn, use these perceptions to justify their harshness toward Blacks and Hispanics. By contrast, Asians are perceived as industrious, intelligent, artistic, and scientific (Guichard & Connolly, 1977). Some scholars use a “model minority” to depict Asian American success (Healey, 2003, p. 409). Asians in the United States generally hold a middle-toupper socioeconomic status similar to that of American Whites. Individuals with high socioeconomic status are often viewed as good citizens who pose a relatively low threat to society (Box & Hale, 1985; Spitzer, 1975). The assumption is that individuals in the middle or upper echelons of society are unwilling to risk losing their status by engaging in illegal behavior. The crimes these individuals do commit are typified as less premeditated, less threatening, and less likely to reoccur than the crimes committed by those who are poor (Blalock, 1967; Steffensmeier et al., 1998). The Asian group fits this example. The relatively low criminal involvement by Asians leads the public to stereotype them as less violent than Blacks and Hispanics. In deciding the sentence, judges may consider socioeconomic status a risk factor

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for recidivism, singling out Asians from the pool of the minorities for leniency because they pose a relatively low threat to society.

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TYPIFICATION THEORY, CITIZENSHIP STATUS, AND SENTENCING OUTCOMES Typification theory has been used to explain subjective perceptions in crime and punishment (Chiricos et al., 2004; Welch, 2007), but it has not been applied to guiding the objective outcomes in sentencing. “Typification is a process in conduct that so organizes the field of action that interaction can proceed on an orderly basis” (McKinney, 1969, p. 1). The use of individual characteristics to typify a group of individuals may be reflected in the outcomes of decision making. For example, the constant existence of Black-White and Hispanic-White disparities in sentencing suggests that judges have developed a sense of whom a typical defendant will be; a Black or Hispanic defendant in the courtroom will be seen as more threatening and dangerous to the community and deserving harsher punishment. Such perceptions and constructions of defendants within the court system help judges shape their decisions efficiently and facilitate “going rates.” As sentencing researchers indicate, the perceptual shorthand, attribution, patterned responses, and embedded organizational mapping are prevailing practices court actors use during decision making (Albonetti, 1991; Bonilla-Silva, 1997; Bridges & Steen, 1998; Hawkins, 1981), which are tied to typification practices. In the sentencing setting, it is not uncommon for judges to associate crime types with offenders’ dispositions (Farrell & Holmes, 1991). From the typification perspective, people often link violent street crimes to Blacks (Mayas, 1977; Russel, 1998), and there is a disturbing new trend toward stereotyping Hispanics as members of violent street gangs that are pronounced in Black communities (Zatz, 2000). Based on the stereotypes, the public tends to think that the commission of violent street crime is normal for Blacks and Hispanics, whereas the commission of such crime is unusual for Asians and Whites. The attribution of a group of people with specific types of crime—for example, African Americans with street crimes or Whites with white-collar crimes—helps judicial decision makers determine whether sentences meted out are fairly applied to each defendant. Based on the attribution, judges are able to move the case to the next

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stage efficiently because decision-making patterns have been developed. Therefore, typification can be theorized as being reflected in the application of sentences given by judges. Typification theory essentially assumes that racial/ethnic stereotyping is invariant across nationalities. The reason is that it may be more effortless to stereotype a person based on race/ethnicity than on his or her nationality. In other words, most people are able to identify a person as, for example, White, but are unable to accurately judge where he or she comes from (e.g., Germany or Switzerland). Thus, similar findings in which Black and Hispanic offenders are sentenced more harshly than are other racial/ethnic groups should persist in both citizen and non-citizen groups. In addition, as previously mentioned, judges may include offender socioeconomic status in their sentencing considerations. Offenders at the bottom of the socioeconomic ladder, mostly Black and Hispanic offenders, may receive harsher sentences than those in the middle or at the top. Consequently, the within-group comparisons of citizenship status suggest that unwarranted racial/ethnical disparities in sentencing outcomes for the citizen group should also be found for the non-citizen group. Specifically, Black and Hispanic citizens should receive harsher punishments than Asian and White citizens. Black and Hispanic noncitizens should receive harsher punishments than Asian and White noncitizens.

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THREAT HYPOTHESES To fully understand how citizenship status and race/ethnicity interplay to affect judicial sentencing, the current study uses social and racial/ethnic threat hypotheses to tie the aforementioned two theories together (Crawford et al., 1998). In addition, there are other theories that share theoretical elements with the threat hypothesis. Both conflict theory and typification theory simultaneously encompass the threat hypothesis (see Brown & Warner, 1992; Chiricos et al., 2004), which refers to social threat (Liska, 1992) or racial/ethnic threat (Blalock, 1967). On the one hand, conflict theorists argue that immigrants are not irrelevant to recent increases in crime and that the asymmetrical political power structure between U.S. citizens and non-U.S. citizens provides an opportunity for the upper class (e.g., judges) to purify the corrosive social climate and restore the perceived weakening of

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conventional values by targeting the powerless (e.g., non-U.S. citizens) for the enforcement of get-tough-on-crime policies. This is particularly evident when a great influx of immigrants in recent years has increasingly, if subconsciously, changed American society in multiple ways. Judges therefore tend to hold immigrants largely, if not fully, accountable for the worsening crime problem and are more punitive toward non-citizens (see Chapter One). Judges’ perceptions of social threat posed by non-U.S. citizens increase sentencing differentials. On the other hand, typification theorists suggest that Black and Hispanic offenders are the most disadvantaged among all racial/ethnic groups in criminal courts due to their associations with poor images and labels. Judges, who are faced with a disproportionate population of Black and Hispanic offenders in criminal courts, tend to feel that the established order is threatened by racial/ethnic threat. A conceptual distinction between racial/ethnic threat and social threat should be noted. The early approach to the classic version of conflict theory’s threat hypothesis almost exclusively pointed toward racial/ethnic threat, positing that racial/ethnic minorities were perceived to be a threat to mainstream society through fear associated with crime, drugs, gangs, and immigration (Crawford et al., 1998; Fearn, 2005; Steffensmeier & Demuth, 2000, 2001; Steffensmeier et al., 1998). Following the racial/ethnic threat hypothesis to tackle the effects of citizenship status on sentencing decisions is problematic because immigrant categories also include European White immigrants. Furthermore, Brown and Warner’s (1992) description of conflict theory’s economic, political, and cultural threat is within the social context (see also Cureton, 2001). Thus, the effects of citizenship status on sentencing outcomes can arguably be referred to as a social threat. This social threat takes a broad definition to encompass threat from economic and political aspects. The racial/ethnic threat hypothesis, therefore, is partially consistent with typification theory, which involves non-White minority groups. The threat hypothesis is also linked to other emerging sentencing theories. For instance, Steffensmeier and his associates (1998) posit that judges’ sentencing decisions reflect their predictions of recidivism and their desire to protect the community by incapacitating dangerous offenders. According to this perspective, judges seldom have complete information to accurately determine a defendant’s dangerousness or threat; as a result, they develop a “perceptual shorthand” (Hawkins,

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1981, p. 280; see also, Bridges & Steen, 1998) based on stereotypes and attributions associated with offender characteristics such as race/ethnicity and citizenship status. Similarly, according to Albonetti’s (1991) version of uncertainty avoidance theory, judges employ patterned responses to overcome their constrained rationality and to reduce their uncertainty about predicting an offender’s future threat to the community. The patterned responses “are themselves the product of an attribution process influenced by causal judgments,” and “[j]udges would rely on stereotypes that link race, gender, and outcomes from earlier criminal processing stages to the likelihood of future criminal activity” (Albonetti, 1991, p. 251).

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THREAT HYPOTHESES, CITIZENSHIP STATUS, AND RACE/ETHNICITY The threat hypothesis often is measured with the size of the minority population and the quantity or quality of threatening acts as macrolevel predictors (Britt, 2000; Brown & Warner, 1992; Chamlin & Cochran, 2000; Fearn, 2005; Helms & Jacobs, 2002; Ulmer & Johnson, 2004). This method is not suitable for the current study. This study is confined to individual-level analyses of sentencing outcomes, based on the proposition that judges see citizenship status as a potential social threat to the community. An exploration of contextual influences that incorporates macro-level predictors, while of interest and of utility, would require different hypotheses that do not serve the purposes of this study. Furthermore, the analysis of macro-level predictors such as the size of the minority population would be most practical in research that has an interest in two or more regions. These data may be used to examine the effects of citizenship status on sentencing outcomes by comparing one area with another. However, the primary purpose of this study is to understand collective effects with national, aggregate data. The current study, therefore, does not focus on testing the variation of threat across geographical areas. Another possible approach would be to conduct micro-level analyses of sentencing outcomes and speculate on the typifications and threats that influence judicial decision making. Research on social and racial/ethnic threat hypotheses seldom uses direct measures of judicial attitudes but rather relies on proxy measures. Judges may be following the attitudes of other court personnel, such as probation officers who do the

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presentence investigations reports. Also, factors related to court environment may be the actual causes of judicial disparity, not judicial attitudes. Regarding the relationship between threat and citizenship status, the use of attributions to assess levels of threat in criminal courts is particularly obvious for undocumented non-citizens, who might have had extensive criminal involvement in their home countries. As uncertainty avoidance theory (Albonetti, 1991) suggests, information about undocumented non-citizens’ past criminal records outside the U.S. may not be readily available to judges, in turn resulting in their bounded rationality for sentencing considerations. The practical difficulties of accurately gauging non-U.S. citizens’ backgrounds promote judges to impose harsher punishment in order to respond to the goal of community protection. Differential treatment in criminal courts for Black, Hispanic, and non-citizen offenders clearly reflects the fact that “crime is feared more and the sanctions will be hasher when criminals are perceived to be racially or culturally dissimilar and hence more ‘dangerous’ and ‘unpredictable’” (Steffensmeier & Demuth, 2000, p. 708; see also Liska, Logan, & Bellair, 1998, p. 28).

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THEORETICAL INTEGRATION In the field of criminology, we strive to answer three key questions: (1) why do we have the laws that we have, (2) why do we use the laws the way that we do, and (3) why do people commit crime? While it is a challenge to find one grand theory to answer all these questions, posing them does bring forth the concern that these questions cannot be fully answered with research based exclusively on group-level theory, nor by research based exclusively on individual-level theory. For example, the explanation for the question “why do we have the sentencing laws that we have?” (Question 1 above) requires a grouplevel exploration of societal influences from class relations to political influences on the content of legislation (group conflict theory). However, the actual implementation of the U.S. Sentencing Guidelines to individual cases (Question 2 above; why do we use the laws the way that we do), through the complexity of decisions about departures and enhancements with sentencing grids and the pre-sentence investigations, is an individual-level decision with the level of analysis being the offender (individual conflict theory). Such research may also

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explore questions about legal culture, bureaucratic influences, and so forth, and strive to explain conviction rates; however, a comprehensive assessment of how Federal Sentencing Guidelines are used cannot disregard decision making at the individual level. Similarly, the answer to “why do people commit crime?” (Question 3 above) has individual elements as well as community and group-level aspects. A decision maker, such as a judge, has a set of values and attitudes about why people commit crime (typification theory) that are conditioned by societal and community influences and perceptions about what groups are criminal (social and racial threat). The review of theories in the previous section suggests that the role of class and economic factors central to traditional conflict theory can reasonably be expanded to include race, ethnicity, and citizenship status of offenders when perceived through the lens of powerlessness. Thus, conflict theory can offer a foundation to understand the differentials in federal sentencing outcomes through offender characteristics like citizenship status and race/ethnicity. As the discussion above reveals, group-level relationships between class and law can be translated to individual-level sentencing outcomes by understanding the level of discretion left to judges in decision making and by the prominence of extralegal offender information in the presentence investigation report (i.e., citizenship status, race, and ethnicity). While there are no individual judicial identifiers in the current data set, strong speculation can be made that typification practices are common influences in discretionary decision making by judges. Threats are consistently formulated in American culture, leaving observers to think of the noncitizenship status and minority race/ethnicity of the offender as having strong theoretical connections to the causes of crime and, therefore, to the need for harsh sentencing. Although organizational bureaucracy is not the interest of the current study, organization-related factors may help shape judicial perceptions of and attitudes toward offenders. Dixon (1995) proposes an organizational context perspective, suggesting an integration of the substantive political, formal legal, and organizational maintenance perspectives. Her conceptualization is based on the assumption that courts vary in many ways; no one perspective provides a full explanation. Therefore, although legally relevant characteristics (e.g., criminal history and offense severity) are the key factors that account

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for sentencing differentials after the Guidelines were implemented, legally irrelevant characteristics such as social class and social status have been found to play a role. Judges are also likely concerned with the efficiency of case processing (e.g., the going rate) that may lead to sentencing variations across jurisdictions (Dixon, 1995). For example, a federal district judge is often bound to follow judicial decisions made by the U.S. Circuit Court that has jurisdiction over his or her district; however, the district judge is not required to follow decisions made by judges in other U.S. Circuit Courts. Therefore, it is expected that federal judges within the same Circuit Court will reach more similar sentencing decisions than judges who preside over courts located in different Circuits. In fact, organizational efficiency through the highly structured, routine dispositions of cases responds to institutional needs (Nardulli, Eisenstein, & Fleming, 1988). Judges in a typical court environment tend to develop a format based on what they believe the sentence should be for a typical offender and for a typical offense. “Court actors internalize crime stereotypes as cognitive schemata that provide a shorthand for information-processing in a system characterized by time and resource constraints” (Farrell & Holmes, 1991, p. 536). Court actors in some areas are more likely than those in other areas to feel the threat of racial minorities and non-U.S. citizens and, in turn, externalize their perceptions by meting out harsh sentences to these groups. Organization-related factors are often reflected in case processing outcomes. Plea negotiations and pretrial detention status function as additional indicators which judges view as a way to decrease the pressure of case backlog. Additionally, I argue that a reasonable proxy for class identification in the exploration of the impact of citizenship status on criminal sentencing is the component of the GDP of the offender country of origin. By adding the elements of country of origin, a connection to the analyses of race/ethnicity and citizenship status (while imperfect, see Chapter Four) can be made. For the study at hand, the intersection of conflict theory and typification theory lies in the fear of threats via the avenue of crime. Also implicit in the intersection is a double disadvantage manifested through skin color and national origin for Black-Hispanic and Afro-Caribbean non-citizens (Steffensmeier & Demuth, 2000; also see Demuth & Steffensmeier, 2004). As Steffensmeier and Demuth (2000) note, Black-Hispanic and

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Afro-Caribbean non-citizens have both racial and ethnic minority statuses because of their skin color and cultural backgrounds. These characteristics make this group of people distinct from other racial or ethnic groups, which may mean that they are perhaps less able to assimilate smoothly into American society. This group not only is typified by skin color but also is perceived to pose an immigrant threat. Immigrants from continental Africa, in contrast, comprise a small portion of the immigration population (Camarota & McArdle, 2003), and are not perceived to pose an immigrant threat. As such, BlackHispanic and Afro-Caribbean non-citizens are assumed to experience the greatest disadvantage in society, in general (Rodriguez & CorderoGuzman, 1992), and criminal justice processing, in particular (Steffensmeier & Demuth, 2000). Through the interaction of race, ethnicity, and citizenship status, racial/ethnic effects on judicial decision making will differ in terms of immigration status. Specifically, among all convicted offenders, Black-Hispanic and AfroCaribbean non-citizens will be the most disadvantaged at the sentencing stage. This study begins with the assumption of judicial discretion in sentencing outcomes. Judicial discretion is assumed to be prevalent in federal sentencing decisions, as the legally relevant factors represented in the sentencing grid do not explain all of the variation in the dependent variables that measure sentencing outcomes. While direct measures of judicial perceptions and attitudes are absent from this study, I do have precise judicial outcome behavior at the offender level for numerous sentencing outcomes (i.e., incarceration decisions and length decisions) and for a variety of within-group and between-group circumstances. If the findings of this study indicate the influence of legally irrelevant offender characteristics across these varied circumstances, there is a need for drafting research studies that more directly observe and measure the causes of judicial decision making. PRIOR RESEARCH ON CITIZENSHIP STATUS AND SENTENCING OUTCOMES In this section, empirical research on citizenship status and sentencing outcomes will be reviewed. This section is separated into studies that conduct the direct (i.e., citizenship as the primary variable of interest) and indirect (i.e., citizenship as a control variable) examination of the

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relationship between citizenship status and sentencing. A discussion of the limitations to current research is also presented. This section ends with a summary of what we know about the direct and indirect impact of citizenship status on sentencing outcomes and the justifications for doing additional research in this area. Research on the effect of citizenship status on sentencing has largely focused on outcomes at the federal level. Studies centering on federal courts typically employ data developed and collected by the U.S. Sentencing Commission. The U.S. Sentencing Commission Monitoring System Database consistently incorporates into its database items regarding an offender’s citizenship status, including whether the offender is a legal or an illegal non-citizen. The information in the U.S. Sentencing Commission data file is sufficient for researchers to analyze the nexus between citizenship status and the unwarranted exercise of judicial discretion in sentencing. One state level sentencing study is included below from the state of Washington (Engen et al., 1999). Given that this state also uses sentencing guidelines, the findings seem relevant when planning future research. The complexity of the sentencing process results in studies that have multiple dependent variables. For example, upon conviction/plea, a judicial decision includes the decision of whether to impose a sentence of incarceration or some other penalty (this is often referred to as the in/out decision). Next, the decision as to the length of the sentence, generally designated in months, follows a sentence of incarceration. Additional decisions are relevant in some cases that constitute upward/downward departures and substantial assistance departures. All studies below will address some combinations of these decisions, but few studies systematically address all of these decisions.

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Direct Examination of Citizenship Status Using U.S. Sentencing Commission data for the fiscal year 1995, Katzenelson, Conley, and Martin (1996) examined differences in offenses between non-U.S. citizens and U.S. citizens in federal courts. In this non-multivariate study, non-citizens had a lower likelihood of being sentenced to something other than incarceration. Thirteen percent of non-citizens received sentences other than incarceration (presumably more lenient), compared with 36% of citizens. Katzenelson et al.’s (1996) study also revealed that the length of the

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sentence for non-citizens was approximately 12 months shorter than it was for citizens in 1995. The findings also indicated that non-citizens were sentenced more leniently than citizens for most offenses, such as kidnapping/hostage taking, drug trafficking, simple drug possession, money laundering, and crimes related to national defense. Although non-citizens received longer sentences for immigration offenses, the difference of eight months appeared not very large, and these offenses by non-citizen accounted for the majority of all their offenses. Noncitizens received more downward departures, whereas judges gave citizens more substantial assistance departures (Katzenelson et al., 1996). In short, while non-citizens received more severe sentences in some cases, they received more lenient sentences in other cases. Demuth (2002) has thus far conducted the most thorough investigation of the extent to which an offender’s citizenship status has an effect on federal sentencing decisions. Focusing on drug cases from a 4-year period of data, Demuth (2002) attempted to assess differential sentencing outcomes among three groups: illegal aliens, legal aliens, and U.S. citizens. In his multivariate analysis, Demuth (2002) found that non-U.S. citizens faced a higher likelihood of incarceration than U.S. citizens. Compared to citizens, both illegal aliens and legal aliens were more likely to be sentenced to prison. However, Demuth (2002) did not discover any significant difference between the sentence lengths given to non-citizens and citizens. Illegal aliens, legal aliens, and citizens virtually received equal prison sentences. In addition to citizenship status, Demuth (2002) was also interested in looking at the effects of race/ethnicity. His findings revealed that both Blacks and Hispanics were more likely than Whites to be incarcerated (7% and 12% higher, respectively), but only Blacks received longer prison sentences than Whites. Black offenders received sentences that were 1.41 months longer than those given to Whites, whereas Hispanic offenders received sentences that were 2.3 months shorter than sentences given to White offenders. In a recent study based on federal sentencing data from 1997 through 2000, Johnson and Betsinger (2009) examined the extent to which Asian Americans were sentenced and also touched on the interactions between race/ethnicity and citizenship status. They found that compared to U.S. citizens, non-U.S. citizens were sentenced more severely, including the higher likelihood of incarceration, longer prison

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sentences, and the lower likelihood of substantial assistance departures; however, judges were more likely to grant regular downward departures to non-U.S. citizens than to U.S. citizens. Despite some variation across types of sentencing outcomes with respect to interactive effects, Johnson and Betsinger’s (2009) findings generally revealed that Asian citizens were treated more leniently than almost all other race/ethnicity-citizenship subgroups and that Asian non-citizens received relatively lenient treatment among non-U.S. citizens. The model minority label for Asians appears to have become part of courtroom attributions. State-level data, in general, do not include information about an offender’s citizenship status. The primary reason is that a substantial number of non-citizen offenders have their cases transferred from a state court to a federal court. Additionally, states may have small immigrant populations, making it unlikely that non-citizens will be differentiated from citizens. However, in the state of Washington, court data do include citizenship status as part of the offender’s demographic information, which allows a research to examine the effect of the variable on sentencing outcomes. Using data from three counties—King, Pierce, and Yakima counties— in the state of Washington for fiscal years 1998 and 1999, Engen et al. (1999) explored the determinants of sentencing outcomes for non-citizens in drug related offenses. There were 25 non-U.S. citizens, constituting approximately 9% of their sample. Engen et al.’s (1999) analysis focused on the state prosecutor’s sentencing recommendations and the actual length of the sentence imposed on offenders. With respect to sentencing recommendations, Engen et al. (1999) did not find any significant difference between noncitizens and citizens, although the model revealed that state prosecutors recommended longer sentences for non-citizens than for citizens. At the sentencing stage, Engen and his associates similarly found no significant difference in the length of the sentence between the two groups, although the finding suggested that non-citizens were sentenced more leniently than citizens, a finding contrary to prosecutorial recommendations. In fact, Engen et al.’s (1999) study also failed to show any disadvantaged effects against racial and ethnic minorities. Sentences imposed on Black and Hispanic offenders did not differ from those given to similarly situated White offenders.

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Several issues emerge in the studies conducted by Katzenelson et al. (1996), Demuth (2002), Johnson and Betsinger (2009), and Engen et al. (1999). These issues speak to methodological limitations; however, there are also theoretical limitations with regard to justifications for expected relationships. First, Katzenelson et al.’s (1996) study reminds researchers of the need to conduct multivariate analysis to control for legally relevant variables. Prior criminal records and offense severity have been confirmed as the most important factors that guide judicial decision making, especially under sentencing guidelines systems. Failure to control for these two key legal variables inevitably distorts the relationship between citizenship status and sentencing outcomes. Second, related to their failure to conduct a multivariate analysis, Katzenelson et al.’s (1996) univariate findings may not appropriately reflect the differences in sentencing outcomes between non-citizens and citizens because they did not consider potentially important control variables, such as a variety of offender demographic characteristics. Controlling for race (Spohn, 2000; Steen et al., 2005), ethnicity (Albonetti, 2002; Demuth & Steffensmeier, 2004; Steffensmeier & Demuth, 2000, 2001), gender (Chesney-Lind, 1997; Daly & Bordt, 1995; Stacey & Spohn, 2006), age (Steffensmeier et al., 1995; Steffensmeier & Motivans, 2000), and employment status (Chiricos & Bales, 1991; Chiricos & Crawford, 1995; Nobiling et al., 1998) is crucial to one’s ability to detect a direct relationship that is independent of those stemming from other demographic characteristics. Demuth’s (2002) study examines only a sample of male offenders. The number of female offenders under federal supervision has increased in recent years, capturing researchers’ attention to exploring its impact on the likelihood of unwarranted disparity. As Chesney-Lind (1997) notes, Federal Sentencing Guidelines “operate to the distinct disadvantage of women” (p. 148). Such a disadvantage could be worsened by overlooking the importance of female offenders in federal courts with the justification that they constitute only a small portion of offenders (Kempf-Leonard & Sample, 2001). Third, as Katzenelson et al. (1996) note, there is almost no possibility for citizens to commit the offense of illegally entering or remaining in the United States (USSC §2L1.2, 2005). With appropriate documents presented to provide evidence of citizenship, U.S. citizens are assumed to have the legal right to enter and remain in the U.S.

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Univariate analysis is unable to establish the distinction between individuals who are able to commit a particular offense versus those who are not able to do so. The assessment of differences in sentencing outcomes that solely provides univariate finings will mask the distinction in the USSC §2L1.2 offense category between non-citizens and citizens. Fourth, Demuth (2002) examines only drug cases (see also Engen et al., 1999), which constitute approximately 40% to 50% of all federal offenses (BJS, 1996). While it is true that drug offenses account for the majority of federal cases, other offenses do not necessarily lack merit for research. Because major violent offenses are regulated by state laws (and, thus, federal jurisdiction is often restricted), it is no surprise that offenders tried in federal courts are less likely to be tried for acts of violence. Focus on drug offenses may mask the possible unwarranted disparity for cases involving other offenses. Fifth, aggregation bias may emerge when non-citizen status is not appropriately differentiated as either a legal or a non-legal status or when national origin and skin color are not simultaneously taken into consideration. Demuth (2002) rationalizes the low likelihood of probation being granted to illegal aliens by alleging the lack of their permanent residence in the U.S. None of the other studies examined make this distinction a priority, which may bias their interpretations by “lumping” together offenders with dissimilar characteristics. Demuth (2002), however, does not explain why legal aliens face the same situation (i.e., greater odds of incarceration), as patterns for illegal aliens in his research are indeed the same as patterns for legal aliens, raising again the concern that more comprehensive theorizing is needed to understand the impact of non-citizenship on sentencing outcomes. Furthermore, Johnson and Betsinger’s (2009) research fails to differentiate among Black/Hispanic/Latino offenders in terms of national origin and skin color. Sixth, these studies are limited because only specific types of sentencing decisions are examined. For example, Engen et al. (1999) focus only on the prison sentence length decision, without addressing other forms of sentencing, such as the decision to incarcerate or the probation length decision. Researchers have pointed out that the type of sentencing decision is critical when one examines sources of unwarranted sentencing disparity. Although Johnson and Betsinger (2009) include four types of sentencing decisions, the probation length

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decision that has been greatly absent from sentencing scholarship is not part of their analyses. Seventh, the size of the sample used in an analysis is important. As recognized by Engen et al. (1999), a small sample size (25 noncitizens in this study) may thwart the possibility that a variable will be found to predict an outcome. Such limitations provide justifications to extend research on the effect of citizenship status on sentencing outcomes with an examination of a variety of offense types by using a moderately large sample. Indirect Examination of Citizenship Status

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Additional studies are found to include citizenship status as a control variable; however, with respect to the effects of citizenship status on sentencing outcomes, the findings are not conclusive. This section explores the supportive findings first and then presents the nonsupportive findings. These studies improve on the ones above because multiple sentencing outcomes are considered, more offenses are examined, and findings of both direct and indirect effects are revealed. This section concludes with an assessment of how these studies direct future research. Research findings with significant citizenship effects Several researchers have found that citizenship status significantly influences sentencing outcomes, but these effects do not have a consistent direction. For example, Albonetti (1997) examined federal drug offenders sentenced between 1991 and 1992 and discovered that non-U.S. citizens received harsher penalties than U.S. citizens. The probability of being incarcerated was 2% higher for non-citizens, and the logged length of the sentence for non-citizens increased by an index of 0.80. Specifically, after partitioning the data by race/ethnicity, Albonetti (1997) found that the disadvantaged effect for non-citizens was salient for the Black and Hispanic groups but not for the White group. The effect of citizenship status, however, did not vary significantly across the three race/ethnic groups. In a later analysis of white-collar offenders, Albonetti (1998) similarly found that non-citizens were unfavorably treated in federal courts. In addition, when compared to the effects for drug offenders, the effects for white-collar offenders were greater. The probability of

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incarceration for non-citizens increased by 14%, and there was an increased effect of 0.18 on the logged length of the sentence for noncitizens. The citizenship effect was confined only to male white-collar offenders, and the difference between male and female offenders was not statistically significant (Albonetti, 1998). In a later study, Albonetti (2002) also found that regardless of legal status, Hispanic male, Hispanic female, and White male non-citizens received longer sentences than U.S. citizens (in their respective racial/ethnic and gender groups) when convicted of drug trafficking offenses and that legal Black female non-citizens were sentenced more severely than Black female citizens. Mustard (2001) found a similar pattern in the main, direct effect of citizenship status when he analyzed federal data for the years 19911994. His findings revealed that non-U.S. citizens, on average, received prison sentences that were 1.74 months longer than those given to U.S. citizens. Even with different types of interactions taken into consideration, non-U.S. citizens still received prison sentences that were 1.2 months longer than those given to U.S. citizens (Mustard, 2001). Two studies have revealed that there are differences across federal sentencing districts. Using 1996-2000 U.S. Sentencing Commission data, Ulmer (2005) offered evidence to support the hypothesis that nonU.S. citizens paid a penalty at the sentencing stage. His findings indicated that non-citizens were more likely than citizens to be incarcerated in a large western district, a large northeastern district, and a medium southern district. Ulmer (2005) also found that non-citizens received longer sentences than citizens in the western and northeast districts. In a different study that used 1997-1998 U.S. Sentencing Commission data, Kautt and DeLone (2006) provided additional support for findings of earlier studies. In their study, non-U.S. citizens were more likely than U.S. citizens to be incarcerated when convicted of both mandatory minimum and Guidelines drug offenses and noncitizens also received longer sentences when convicted of Guidelines drug offenses. Sentencing researchers have recently been interested in determining the effects of individual characteristics by taking into account contextual influences. Because individual cases are nested within federal district courts, this type of research often employs multilevel modeling to isolate the residual variance for individual-level

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variables from the residual variance for contextual level variables (e.g., federal district courts) while simultaneously taking them into consideration (Luke, 2004). Taking on this approach, Johnson et al. (2008) analyzed four-year U.S. Sentencing Commission data from fiscal year 1997 through fiscal year 2000 with respect to downward departures and departure lengths. Their findings were generally consistent with the findings of prior research in which non-U.S. citizens were treated more harshly than U.S. citizens. Johnson et al. (2008) found that non-citizens were 27% less likely to receive substantial assistance departures, though there was no difference in their odds of being granted Guidelines departures. In addition, these researchers showed that non-citizens received shorter lengths of departure discounts than citizens; their discounts were 5% shorter when given substantial assistance departures and 15% shorter when given Guidelines departures. In addition, researchers have expressed interest in incorporating judges’ characteristics into analyses of sentencing outcomes. Schanzenbach (2004), for instance, examined federal data for the years 1992-93 and 2000-01 with this focus. He found that non-U.S. citizens were given longer sentences than U.S. citizens, even after controlling for judicial characteristics. A similar pattern was found when the author partitioned the data by offense severity and prison/jail sentences. Schanzenbach (2004) further found that non-citizens were less likely than citizens to be granted downward departures. However, noncitizens were more likely than citizens to get shorter prison sentences (for cases falling within the Guidelines range) or regular downward departures (for serious offenses). In an attempt to assert that Hispanic offenders rather than Black offenders have been the most disadvantaged group in the sentencing process, Steffensmeier and Demuth (2000) conducted a preliminary analysis to determine how an offender’s citizenship status influenced sentencing outcomes. Consistent with the majority of research, Steffensmeier and Demuth’s (2000) analysis of federal data for the years 1993-1996 indicated that non-U.S. citizens were treated more severely than U.S. citizens. Their findings also supported their argument that in the non-citizen group, Hispanic offenders received the least favorable treatment, followed by Black offenders and then White offenders. This study is one of a few that makes an effort to explore

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the interaction between citizenship status and race/ethnicity. Unfortunately, however, Steffensmeier and Demuth (2000) presented these results merely as a footnote without providing further detail for scholarly scrutiny; they focused entirely on differences among U.S. citizens. The authors also did not take into consideration the Asian group (but Asians comprise a relatively low portion of federal offenders). Steffensmeier and Demuth (2000) differentiated between White Hispanic and Black Hispanic offenders. As they posited, Black Hispanics would likely be treated unfavorably in criminal courts relative to offenders of any other racial or ethnic group because of their skin color and because of their associated immigration status. Their findings revealed partial support for this hypothesis, depending on the type of sentencing outcome considered. For the incarceration decision, Steffensmeier and Demuth (2000) found that Black Hispanics convicted of drug or non-drug offenses were not more likely than White non-Hispanics to be incarcerated. White Hispanics convicted of drug offenses, however, were 16% more likely than White nonHispanics to be incarcerated; Likewise, White Hispanics convicted of non-drug offenses were 7% more likely than White non-Hispanics to be incarcerated. In contrast, the authors found that Black Hispanics received longer prison sentences (approximately 23 months longer for drug offenses and 16 months longer for non-drug offenses) than White non-Hispanics. Also, compared to White non-Hispanics, White Hispanics were given prison sentences that were approximately 20 months longer in drug cases and only 4 months longer in non-drug cases. Prior federal sentencing studies have focused exclusively on the 50 states and the District of Columbia with either aggregated or disaggregated data. Iles (2006), unlike others, however, focuses specifically on outcomes in one of the territories of the United States— the U.S. Virgin Islands. In her study, Iles (2006) used data spanning a period from 1997 to 2002 to generate a reasonably large sample size for her analysis. Unlike the conventional dichotomous classification used in most studies (i.e., non-U.S. and U.S. citizens) or the trichotomous classification used in other studies (i.e., U.S. citizens, legal aliens, and illegal aliens), Iles (2006) used multiple categories of citizenship status. In addition to retaining the U.S. citizen category, she divided non-U.S. citizens into four categories of regional nationalities (i.e., Dominica and

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the Dominican Republic/Santo Domingo or Santos, the Caribbean, South America, and other countries). These varying groups were contrasted with the U.S. citizen reference category. Iles (2006) found that among the four regional nationalities, only offenders who were the citizens of other countries had significantly higher odds of incarceration than U.S. citizens. In other words, citizens of other countries were approximately 5.7 times more likely than U.S. citizens to receive prison terms. The further investigation of the length of the given prison term revealed that citizens of Caribbean countries, South American countries, and other countries were given prison sentences that were, on average, 3.5 months shorter than sentences given to U.S. citizens. Clearly, the findings differed from those found by other researchers who, instead, found unfavorable treatment for nonU.S. citizens. Research findings without significant citizenship effects In addition to the aforementioned studies, some scholars argue that non-U.S. citizens may not actually be treated unfavorably by judges. Non-citizenship status places an offender in a position whereby he or she might be deported back to his or her home country; this possibility may lead judges to sentence the offender less severely (Demleitner & Sands, 2002). Maxfield and Burchfield (2002), for example, have reported that a considerably large number of non-citizens convicted of unlawful entry offenses were granted downward departures because they had the option of voluntary deportation to avoid a formal hearing. It is worth noting, however, that it is nearly impossible for U.S. citizens to be sentenced in accordance with USSC §2L1.2 regarding unlawful entry into the United States. Other sentencing researchers have found no significant relationship between citizenship status and sentencing outcomes. For example, Everett and Wojtkiewicz (2002) analyzed federal data for the years 1992-1993 and divided the sentence length variable into four ranges. They did not find any statistically significant difference in sentencing between non-citizens and citizens, though their results suggested that non-citizens received slightly longer prison sentences. Kautt and Spohn (2002) in their analyses of 1997-1998 U.S. Sentencing Commission data reported no citizenship effect on the sentence length decision for mandatory minimum, hybrid, and Guidelines drug offenses

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in both the White and Black groups they examined. Wilmot and Spohn (2004) used 5% of the entire sample from the 1995 U.S. Sentencing Commission data set to assess the relevance of prosecutorial discretion and real-offense sentencing. Citizenship status did not influence sentence length, downward departures, or sentence discounts; in other words, non-U.S. citizens received the same treatment as U.S. citizens. Likewise, recent research that focuses on only some federal jurisdictions (rather than research that uses aggregated nationwide data) has also indicated that citizenship status does not matter. With federal sentencing data from 1998 through 2000, Spohn’s (2005) analyses of three federal district courts—the Southern District of Iowa, the District of Minnesota, and the District of Nebraska—showed that the likelihood of incarceration did not differ between non-citizens and citizens. She also found that citizenship status did not affect the magnitude of sentence discounts for either regular downward departures or substantial assistance departures. When the three federal district courts were analyzed individually, citizenship status did not affect the length of the sentence in any of the districts (Wu & Spohn, 2010). Moreover, when focus was placed on drug offenders, the length of the sentence received by non-citizens did not differ from that received by citizens (Stacey & Spohn, 2006). Although several studies have failed to reveal the significant effect of citizenship status when a number of different regions are grouped together, results differ when data are partitioned to address regional variation. Pasko’s (2002) study, for example, suggested no significant differences in the length of prison sentences imposed on non-citizens and citizens, but her findings showed that judges in the First Circuit (representative of the eastern region) sentenced non-citizens to shorter prison terms than citizens. Wu and Spohn (2010) found that noncitizens were more likely than citizens to be granted regular downward departures in the District of Southern Iowa, but non-citizens were not treated differently from citizens in the District of Minnesota or in the District of Nebraska. Conclusion The above review of prior research findings regarding the effect of citizenship status on sentencing outcomes reveals two issues that warrant the need for further research. First, none of the above studies

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have explored the relationship between citizenship status and the length of probation. Although prison sentence length is an important sentencing consideration, a judge’s probation length decision may become crucial as far as citizenship status is concerned because nonU.S. citizens are subject to deportation procedures. In other words, the predictors of unwarranted disparity for the probation length decision may differ from the predictors of unwarranted disparity for the prison sentence length decision. Second, the previous studies lack a comprehensive examination of citizenship status and its interaction with race/ethnicity. Specifically, these studies either treat citizenship status as a control variable or fail to utilize multivariate statistical methods to analyze data. A number of the studies simply focus on certain types of offenses. Thus, the current study attempts to address the theoretical and empirical limitations of prior research by: (1) examining three sentencing outcomes (i.e., the decision to incarcerate, prison sentence length, and probation length), (2) assessing the independent effect of citizenship status and its joint effect with race/ethnicity, (3) using postBooker federal sentencing data that include a variety of criminal offenses, and (4) addressing recent methodological concerns (see Chapter Four). This study will answer the following research questions: 1. 2.

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3. 4. 5.

To what extent does an offender’s citizenship status and race/ethnicity have an impact on sentencing outcomes? (full models for the within- and between-group relationships) To what extent does an offender’s race/ethnicity affect sentencing outcomes in terms of citizenship status? (partitioned models for the within-group relationship) To what extent does an offender’s national origin affect sentencing outcomes in terms of economic conditions (e.g., GDP)? (partitioned models for the between-group relationship) Are Black-Latino and Afro-Caribbean non-citizens the most disadvantaged among all convicted offenders because of their citizenship status and race/ethnicity (skin color)? Do the interaction effects between citizenship status and race/ethnicity vary by jurisdiction?

CHAPTER 4

Data and Research Methodology

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This study seeks to assess the effects of citizenship status on criminal sentencing outcomes by using between-group and within-group models that take into account race/ethnicity. Three types of sentencing outcomes, including the decision of incarceration/probation, probation length, and sentence length, will be examined. Based on immigration status (i.e., non-U.S. citizens vs. U.S. citizens), the between-group analysis will be used to investigate the extent to which factors used to predict sentencing outcomes vary across groups. Moreover, the between-group relationship explores how differences in the economic conditions of the home countries between the non-citizen group and the citizen group affect sentencing decisions. Relying on race/ethnicity (i.e., racial relationships in the non-U.S. citizen group and in the U.S. citizen group), the within-group analysis will investigate whether sentencing patterns of unwarranted racial/ethnical disparities in the non-citizen group are consistent with patterns in the citizen group. According to the above purposes and theoretical framework outlined in Chapter Three, five hypotheses are generated for this study. H1: Offenders who are non-U.S. citizens will face higher odds of incarceration, receive longer prison sentences, and, if given a non-incarceration sentence, receive longer probation terms than U.S. citizens. This hypothesis establishes the direct relationship between citizenship and federal sentencing, with all relevant legal variables and the standard list of offender demographic variables (see below). For example, the key demographic variables of race and ethnicity are 81

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included here as a foundation for subsequent hypotheses. Various models are formed to address interaction terms and the potential for aggregation bias that emerges from the use of citizenship and race/ethnicity measures. An issue of interest in this study suggested by previous research and the theoretical framework above is the incorporation of citizenship status with race and ethnicity. In Hypothesis 2, within-race/ethnicity differences of citizenship status are analyzed. H2a: Black and Hispanic offenders who are citizens will face higher odds of incarceration, receive longer prison sentences, and, if given a non-incarceration sentence, receive longer probation terms than White and Asian citizens. H2b: Black and Hispanic offenders who are non-citizens will face higher odds of incarceration, receive longer prison sentences, and, if given a non-incarceration sentence, receive longer probation terms than White and Asian non-citizens. Hypothesis 3 is based on the comparisons of the partitioned citizen/non-citizen sample and is intended to disentangle the impact of control variables on the sentencing outcomes of these distinct groups of offenders.

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H3: Separating offenders by citizenship status will reveal the differential impact of legally relevant and irrelevant factors on these distinct groups for the initial incarceration decision, sentence length decision, and probation length decision. Additional predictions about the impact of citizenship status and race/ethnicity are suggested by country of origin. The idea here is that some immigrants are seen as less desirable as U.S. residents than others, due primarily to the poor economic conditions in their countries of origin. Hypothesis 4 adds the dimension of the economic status of the country of origin to the exploration of the role played by citizenship status. Various interaction terms can be proposed after the direct effects are identified. The second part of this hypothesis (Hypotheses 4b and 4c) explores the vulnerability of non-citizens compared to citizens.

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H4a: Offenders who are identified as belonging to low GDP countries will have a higher likelihood of incarceration, and will receive significantly longer probation and incarceration sentences compared to offenders from high GDP countries. .

H4b: Offenders who are non-citizens from high GDP countries will have a higher likelihood of incarceration, and will receive significantly longer probation and incarceration sentences compared to White/Asian U.S. citizens. H4c: Offenders who are non-citizens from low GDP countries will have a higher likelihood of incarceration, and will receive significantly longer probation and incarceration sentences compared to Black/Hispanic U.S. citizens. Hypothesis 5 addresses the need to disentangle the aggregation bias inherent in the use of the variables race (i.e., Black) and ethnicity (i.e., Hispanic/Latino). A series of dummy variables (discussed below) are used to explore this hypothesis. H5: Black-Latino and Afro-Caribbean non-citizens will be the most disadvantaged in the decision to incarcerate, the imposition of sentence length, and the imposition of probation length, compared to other offenders.

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Hypothesis 6 addresses the possibility that the geographic location of the sentencing court influences sentencing outcomes. This hypothesis highlights geographic regions of the country with a high population concentration of immigrants. Direct effects and interaction effects are hypothesized. H6a: The independent, direct effects of offender citizenship status and race/ethnicity on the initial incarceration decision, sentence length decision, and probation length decision will be greater for offenders adjudicated in federal courts located in southern bordering states and states with a large immigrant population than for those adjudicated in northern bordering states and those in the remaining jurisdictions.

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Citizenship Status, Race/Ethnicity, and Sentencing H6b: The interaction effects of offender citizenship status and offender race/ethnicity on the initial incarceration decision, sentence length decision, and probation length decision will be greater for offenders adjudicated in federal courts located in southern bordering states and states with a large immigrant population than for those adjudicated in northern bordering states and those in the remaining jurisdictions.

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DATA To test the hypotheses outlined in the previous section, two sets of data are used for this study. The main data used for this study come from the Monitoring of Federal Criminal Sentences (MFCS) data set created by the U.S. Sentencing Commission. The U.S. Sentencing Commission provides offender data for each district for each year. This data file provided by the U.S. Sentencing Commission contains detailed information on the offender, the case, and the sentence. A unique identifier is used to match the case to case files maintained by each U.S. district court. Therefore, the MFCS data set is a rich source for sentencing research at the federal level. The current study uses the 2006 data set that includes information on all offenders sentenced in federal courts over the period from October 1, 2005 to September 30, 2006 (ICPSR 20120). The U.S. Sentencing Commission notes that the data sources consist of the Federal Probation Sentence and Supervision Information System, presentence reports, judgments of conviction, statements of reasons, plea agreements, and Guidelines worksheets. The data are available from the Inter-University Consortium for Political and Social Research website. Cases covered by this data set are processed in accordance with the SRA of 1984. In addition to the MFCS data, a second data set is needed to test hypotheses related to the country of origin’s economic conditions. The gross domestic product based on purchasing-power-parity per capita (GDP-PPP per capita) is an adequate indicator to reflect a county’s economic development. This study uses the 2006 GDP-PPP per capita data estimated by the International Monetary Fund (IMF).9 The IMF 9

The IMF issues the World Economic Outlook (WEO) database twice a year in April and September (or sometimes in October). In addition to reporting the GDP-PPP per capita information on each issue for the past several years, the

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data report the GDP-PPP per capita information each year from almost all countries. The year 2006 is selected as the data source because the 2006 U.S. Sentencing Commission data include cases adjudicated in three-fourths of the year 2006. The GDP-PPP per capita data are merged with the 2006 federal sentencing data based on the defendant’s country of citizenship variable. Appropriate univariate, descriptive analysis of this data set will be run to diagnose missing data problems. Since all analyses are conducted at the individual level, multivariate analysis will include both ordinary least squares regression (for sentence length variables) and logistic regression (for in/out prison decisions). Tests will be run for assumption violations for each of these analytic procedures and appropriate corrections will be made for violations. The 2006 U.S. Sentencing Commission data set originally included 72,585 cases. With citizenship status, along with race/ethnicity, as the key interest in this study, cases without recording information about the two variables were excluded (4,260 cases or 5.9%). Because the focus of this study is on four racial/ethnic groups—Asians (including Pacific Islanders), Blacks, Hispanics, and Whites, I screened out 1,295 (1.8%) cases involving offenders from other racial groups. I also removed 30 (0.1%) cases that recorded race as Asians and ethnicity as Hispanics because such coding does not allow for a test of the differences between Asians and Hispanics or an examination of interaction effects between citizenship status and race/ethnicity. Other variables used for analyses with missing values (3,225 cases or 4.4%) were essentially excluded; approximately 3.3% of these missing values were associated with the offender’s educational background. The data showed that court records lacked information particularly about Mexicans’ educational attainment. The above procedures reduced the number of cases included in the full model to 63,775. WEO database generally provides projections for the next two years. In each release of the database, the IMF may not update previous estimates that have been projected for all countries included in the database, because information from some countries is simply not available in a timely fashion. The current study uses the 2006 GDP-PPP per capita data from the publication released on October 8, 2008. This publication indicates that as of the release date, the previous 2006 projections for 65 countries have not been finalized.

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The original USSC data set had special coding for sentence length. A check of the sentence length variable for the 63,775 offenders revealed that special coding was used for capital punishment (n = 6), life imprisonment sentences (n = 248), sentences without the prison term specified (n =24), and sentences of less than one day (n = 15). Thus, different codes were needed for cases that fell within the four categories. Since capital offenders were indeed subject to incarceration prior to execution, it would be appropriate to include capital cases in the analysis of incarceration decisions but exclude them from the sentence length analysis. An adjustment for the sentence length of those who received life imprisonment was done by changing the prison term to 4,000 months (see Johnson & Betsinger, 2009; Johnson et al., 2008; Wooldredge, Griffin, & Rauschenberg, 2005), a length that was slightly higher than the longest prison sentence with a specified term in this data set (i.e., 3,781 months). To comport with this change, the presumptive sentence for each of the 248 cases was also changed to 4,000 months. Cases that involved incarceration without the term specified in the data were included in the analysis of incarceration decisions but excluded from the sentence length analysis, as was the procedure for the capital cases. Cases that involved a term less than one day were treated the same as those that were sentenced to prison but received no prison term. The last procedure was an additional check by comparing the 293 cases (especially for those with new coding) with their corresponding presumptive sentences to ensure appropriate coding for the downward departure variable. The above procedures retained 63,775 cases for the analysis of the incarceration decision, but there would be attrition of 30 cases in the later sentence length analysis. The number of cases for the probation length analysis would remain unaffected. A concern with the data involves the number of cases in each attribute of a variable. Asians and Pacific Islanders constitute only 2.2% of the defendant population in federal courts. Although the number is disproportionate to other racial/ethnic groups, such as Black (23.8%), Hispanic (43.1%), and White (29.1%) defendants, in no way is a researcher able to make adequate adjustments for the racial/ethnic distribution in this data set. A method commonly employed by researchers is to exclude some racial groups from analysis when the number of defendants in these groups is relatively small (e.g., Steffensmeier & Demuth, 2000).

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This exclusionary approach, however, does not serve as a remedy for the interests of the current study for two reasons. The first reason involves the sample and the population used for this study. Methodologically, the disproportionate frequency distribution of categories for an independent variable may cause a biased finding only as far as the sample is concerned. The biased finding often points to the issue of representation (Schutt, 2001). The current study, however, investigates defendants across all federal district courts in the United States. That is, the national sentencing data used in this study are equivalent to a population rather than a sample for statistical analyses. The second reason comes from the practical aspect of the research purposes to understand federal sentencing disparity. The challenge to the unbalanced distribution of racial/ethnic categories will virtually make it impossible to investigate whether there is significant unwarranted sentencing disparity between Asian and other defendants at the federal level, regardless of aggregated or disaggregated data utilized for analysis. The above two reasons suggest that representation will not pose a problem to later bivariate and multivariate analyses. This approach also is consistent with some federal sentencing studies (Everett & Wojtkiewicz, 2002; Mustard, 2001). In fact, Johnson and Betsinger (2009) have recently conducted an in-depth investigation of whether Asian-American offenders were treated unfavorably in the federal sentencing process, including the in/out, sentence length, and departure decisions. Johnson and Betsinger (2009) point out two factors that have led to the absence of the systematic understanding of Asian-Americans’ involvement and treatment in the criminal justice system. The first factor involves the stereotypical label of a model minority for Asian-Americans. The second factor is methodological, primarily in regard to the availability of the data. The infrequent involvement of Asian-Americans in criminal offending indeed generates only a small number of cases for quantitative analysis. Using a three-year USSC data set from Fiscal Year 1997 to Fiscal Year 2000, they were able to analyze AsianAmerican offenders that accounted for only approximately 2% of the federal offender population. However, Johnson and Betsinger’s (2009) empirical analyses across several stages of judicial decision making have been considered methodologically robust in sentencing scholarship.

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Furthermore, cases with missing data on the dependent and independent variables employed in the analysis were excluded. In dealing with the missing data, some adjustments about two citizenshiprelated variables were made (see Mustard, 2001). The USSC data code citizenship in two ways. First, a dichotomous variable is created to indicate whether or not an offender is a non-U.S. citizen or a U.S. citizen (1 = Non-U.S. citizen; 0 = U.S. citizen), regardless of legal status (e.g., permanent residents, illegal residents, etc.). Second, the U.S. Sentencing Commission also provides a variable indicating the defendant’s country of citizenship if he or she is not a U.S. citizen. In a number of cases, the defendant’s country of citizenship is clearly shown, but the USSC did not record whether the offender was a nonU.S. citizen. Indeed, the missing coding is related only to defendants with a country of citizenship other than the United States. As citizenship status is the key focus in the current study, these cases are recoded 1 to indicate a non-U.S. citizen status in order to reduce the number of missing cases resulting from the obvious coding error by the U.S. Sentencing Commission. DEPENDENT VARIABLES

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The description of variables and their statistical coding are summarized in Table 1. The dependent variables used in this study are the decision to incarcerate, the length of probation, and the length of incarceration (see Table 1). The first dependent variable, the incarceration decision, is measured as a dichotomous variable to reflect whether an offender was sentenced to prison (incarceration = 1; probation = 0). The second dependent variable, as measured in months, is the length of probation given to an offender. The last dependent variable is the length of the sentence, in months, imposed on offenders who received prison sentences.

Data and Research Methodology   Table 1. Dependent and Independent Variables: Codes

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Variable

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Coding Description Dependent Variables Incarceration 0 = Probation Dummy variable indicating whether 1 = Jail/Prison offenders were sentenced to incarceration Probation length Ln months Naturally logged continuous variable indicating the number of months of probation Prison Sentence length Ln months Naturally logged continuous variable indicating the number of months of incarceration Independent Variables Legal Characteristic (sentencing grid) Presumptive sentence Months Continuous variable indicating an adjusted (Ln months) Guidelines minimum sentence or mandatory minimum sentence Legal Characteristics (case processing) Downward departure 0 = No departure Dummy variable indicating whether 1 = Departure offenders were granted a downward departure; receiving no departure is the reference Mode of conviction 0 = Plea Dummy variable indicating whether 1 = Trial offenders was convicted through trial; guilty plea is the reference Pretrial detention 0 = Released Dummy variable indicating whether 1 = Detained offenders were detained prior to trial; pretrial release is the reference Conviction counts Numbers Continuous variable indicating the number of counts of conviction Circuits 12 variables Dummy variables indicating U.S. Circuit Courts that had appellate jurisdiction over offenders and their cases; the 6th Circuit is the reference Offense type 4 variables Dummy variables indicating offenders convicted for violent offenses, immigration offenses, or property offenses; drug offenses are the reference Offender Characteristics Dummy variable indicating offenders’ Citizenship status 0 = U.S. citizen 1 = Non-U.S. citizen citizenship status; U.S. citizens are the reference Race/ethnicity 4 variables Dummy variables identifying offenders as Asians, Blacks, or Hispanics; Whites are the reference Gender 0 = Male Dummy variable indicating the gender of 1 = Female offenders; male offenders are the reference Age Years Continuous variable indicating the age of offenders at time of offending Education 4 variables Dummy variables indicating offenders with a high school diploma, some college education, or a college degree and beyond; offenders without a high school diploma are the reference

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  Table 1 (continued). Dependent and Independent Variables: Codes

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Variable Other Variables National origin and race/ethnicity (for Hypothesis 4)

Coding

4 variables

Citizenship status and race/ethnicity (1) (for Hypothesis 5)

10 variables

Citizenship status and race/ethnicity (2) (for Hypothesis 6)

4 variables

Description

Dummy variables indicating non-citizen from high GDP countries, non-citizens from low GDP countries, and Black/Hispanic citizens (or White/Asian citizens in the second regression); White/Asian citizens (or Black/Hispanic citizens in the second regression) are the reference Dummy variables identifying offenders as White non-citizens, Asian citizens, Asian non-citizens, Black citizens, Black noncitizens, Hispanic citizens, Hispanic noncitizens, Black-Latino citizens, or BlackLatino non-citizens; White citizens are the reference Dummy variables identifying offenders as Asian or White non-citizens, Black or Hispanic citizens, or Black or Hispanic non-citizens; Asian or White citizens are the reference

As the probation length and sentence length are continuous in nature, the issues of skewness and the appropriate method of adjustment to reduce biased results have to be addressed. Skewness violates the assumption of a normal distribution for ordinary least squares (OLS) regression, which is an appropriate statistical procedure for continuous dependent variables. Some researchers have provided a natural log transformation as a solution to cure the highly skewed distribution of a continuous variable (Johnson et al., 2008; Ulmer & Bradley, 2006). Because the natural log transformation essentially estimates the effect on the dependent variable in a percentage term, the advantage is to compare the magnitude of departures from the variable’s mean in a meaningful way when the minimum lengths of two guideline ranges differ considerably from each other (Bushway & Piehl, 2001). Others, however, argue against this approach because the percentage term “alters the fundamental structure and interpretation of the model” (Ulmer & Johnson, 2004, p. 148).

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The SPSS software package provides a general guide to determine skewness. When a variable’s skewness value is twice greater than the value of the standard error of skewness, the distribution of this variable is viewed as skewed (SPSS, 2002). A preliminary assessment in skewness for the current study suggests that both the probation length and the prison sentence length variables are highly skewed. The skewness value for probation length is 6.3 times as great as its standard error. The problem of skewness is even more serious for prison sentence length than for probation length, as the skewness value for prison sentence length is more than 1,300 times its standard error. After weighing disadvantages and advantages, this study will rely on the decision rule of logging the two dependent variables for regression analysis. INDEPENDENT VARIABLES Sentencing researchers typically classify independent variables into two groups: legal characteristics and offender characteristics. The effects of offender characteristics on sentencing outcomes are of particular interest to researchers because of their relevance to unwarranted sentencing disparity and the claim of discrimination. This study includes an additional group to create several interaction terms between national origin, citizenship status, and race/ethnicity for the examination of Hypotheses 4-6.

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Legal Characteristics Two categories of legal characteristics are included in this study (see Table 1). The first category reflects the sentencing grid by including the presumptive sentence. Consistent with the arguments proffered by Engen and Gainey (2000), the current analysis includes the presumptive sentence, which is the minimum sentence the judge could impose without departing from the Guidelines, rather than the offense severity score and the prior record score. The presumptive sentence serves to improve the model fit, increase the explanatory power, and determine precisely the effects of legally irrelevant factors (Engen & Gainey, 2000). The robustness of the presumptive sentence is endorsed by the U.S. Sentencing Commission’s evaluation of Guidelines sentencing following a 15-year implementation. According to the

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USSC (2004), replacing offense seriousness and criminal history with the presumptive sentence cures the problem of non-linearity pertaining to sentence length and also tackles the effects of trumping the mandatory minimum sentence. Using the minimum sentence of the Guidelines range to compute the presumptive sentence is consistent with the method employed in several early studies of guidelines sentencing in Pennsylvania and at the federal level (e.g., Johnson et al., 2008; Kramer & Ulmer, 1996; LaFrentz & Spohn, 2006; Spohn, 2005; Ulmer & Bradley, 2006; Ulmer & Johnson, 2004; Wu & Spohn, 2010). Researchers have debated about the use of the minimum and midpoint guidelines sentences, and some of them have determined that both approaches are equally effective (e.g., Bushway & Piehl, 2001). Kramer and Ulmer (1996), however, identified the problems inherent in using the midpoint of the applicable sentence range for examining departures and argued for the minimum sentence as the baseline (see Ulmer 2000, for additional discussion of this issue). Also in a typical federal case, judges often impose the adjusted Guidelines minimum rather than the midpoint Guidelines sentence. This study therefore follows Kramer and Ulmer’s (1996) lead to measure the presumptive sentence based on the Guidelines minimum. This approach allows for the determination of the presumptive sentence by combining Guidelines minimums with mandatory minimums that are widely applied in federal sentencing on the same baseline. As a large number of federal offenses involve drug offenses that carry a mandatory minimum sentence, the presumptive sentence can be measured as either the minimum sentence based on the Guidelines range or the mandatory minimum sentence. This study employs the following criteria outlined in prior research to determine the presumptive sentence (LaFrentz & Spohn, 2006; Spohn, 2005; Wu & Spohn, 2010): 1. 2. 3.

In principle, the presumptive sentence is modeled as the Guidelines minimum. If a mandatory minimum sentence is triggered and indicates a longer sentence than the Guidelines minimum, the presumptive sentence is modeled as the mandatory minimum sentence. If there is a mandatory minimum sentence but the safety valve is applied, the presumptive sentence is the Guidelines minimum.

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The application of the safety valve requires that an offender have less than two criminal history points, not use violence, violent threat, or dangerous weapons, not cause death or serious bodily injury, not be a leader or organizer of the offense, and cooperate with prosecutors (USSC § 5C1.2, 2005). Unlike some studies that control for the safety valve (Kautt, 2002; Kautt & DeLone, 2006; Kautt & Spohn, 2002; Wilmot & Spohn, 2004; Hartley, Maddan, & Spohn, 2007), this study does not incorporate this variable into models for a control, as the determination of the presumptive sentence has taken it into consideration.10 In a similar vein, because the presumptive sentence captures a sentencing discount for substantial assistance, enhancements, and specific offense characteristics (e.g., drugs and weapons) by adjusting the Guidelines minimum, including these factors in the model becomes redundant (Johnson et al., 2008; Wilmot & Spohn, 2004). The second category of legal characteristics includes a number of case processing factors for analytic models. These models control for whether the offender received any type of downward departure (yes = 1; no = 0). The granting of a downward departure may be either a substantial assistance departure or a regular departure. Analyses also control for two dummy variables: the offender’s pretrial status (detained = 1; released = 0) and the mode of conviction (trial = 1; guilty plea = 0). Conviction counts are measured in a continuous form, reflecting the number of counts an offender faced at the time of conviction. Four dummy variables—drug offense, violent offense, immigration offense, and property/other offense—are created to control for the most serious conviction charge; in all of the analyses, drug

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10

The U.S. Sentencing Commission data do not include a variable to measure an offender’s role during the offense that has been viewed as relevant conduct. The requirement that judges consider a defendant’s relevant conduct at the sentencing stage under the Federal Sentencing Guidelines, along with the fact that such relevant conduct is connected to the extent of substantial assistance, leads researchers to control for the safety valve as a proxy for relevant conduct—that is, the offender’s role during the offense (Hartley et al., 2007). Because the safety valve is a consideration in determining the presumptive sentence as employed in the current study, there is no need to control for this variable.

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offenses are the reference category. It is necessary to control for offense type because of this study’s focus mainly on non-citizen-citizen distinctions that result in almost the impossibility for a U.S. citizen to commit an offense of unlawfully entering or remaining in the United States (Katzenelson et al., 1996; USSC § 2L1.2, 2005). Some researchers cast doubt over the possible double counting of effects between the presumptive sentence and case processing factors. In particular, the number of conviction counts and the offense type may affect the determination of the presumptive sentence that is calculated based on offense severity and criminal history. To tackle this issue, bivariate correlation analysis and the Variance Inflation Factor (VIF) can be employed to determine whether these factors should be included in the model simultaneously (Kautt & Spohn, 2002). The bivariate correlation analysis through Pearson’s correlation coefficient is a convenient way in a preliminary analysis to diagnose whether the presumptive sentence is highly correlated with these case processing factors. The VIF in an OLS regression model also is widely used to determine collinearity. Results of the bivariate correlation diagnostic indicate that, while significant, neither the correlation between the presumptive sentence and the number of conviction counts (r = .15) nor the correlation between the presumptive sentence and type of offense (r = -.13) is high. The two correlation coefficients do not exceed .80, an index that serves as a general criterion to determine whether severe multicollinearity is at issue (Bohrnstedt & Knoke, 1994; Studenmund, 1997). Because the data set has a large number of cases for analysis, it is relatively easy for statistical analysis to reach the level of significance. As a result, an additional VIF analysis is conducted. Findings indicate that all VIF values between these variables are smaller than 5, suggesting that collinearity is not an issue among these variables (Studenmund, 1997).11 Therefore, this study includes the presumptive sentence, the 11

Collinearity typically points to the association between two independent variables, and multicollinearity refers to the relationship involving three or more independent variables (Studenmund, 1997). As far as the VIF is concerned in a regression model, it is actually referred to as multicollinearity, despite the study’s focus on only two independent variables at a time (i.e., the presumptive sentence and conviction counts, or the presumptive sentence and

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number of conviction counts, and type of offense in multivariate models.12 Moreover, this study controls for U.S. Circuit Courts to address potential geographical variation that would result in differential sentencing for similarly situated cases.13 This control is measured by a series of dummy variables that distinguish the 6th Circuit. Regarding the determination of the reference category, Kautt and DeLone (2006) suggest that an appropriate approach is to select a typical court as the reference category that would best represent the U.S. Circuit Court. The typical court, according to Kautt and DeLone (2006), often processes a moderate number of offenders among all federal courts. With this suggestion in mind, this study views the 6th Circuit as a typical court because the number of cases handled in this Circuit in the

type of offense). Although no formal criteria exist to determine collinearity based on VIF values, a common rule of thumb is that if the VIF between two independent variables is greater than 5, researchers should deal with the issue of multicollinearity (Studenmund, 1997). 12 The type of offense variable is recoded as four dummy variables (i.e., drug offense, immigration offense, violent offense, and property/other offense) for later multivariate analyses, with drug offenses as the reference category. The correlations of the presumptive sentence with the individual types of offense also are not high enough to pose the problem of collinearity (r = -.10 for immigration offenses; r = .07 for violent offenses; r = -.08 for property/other offenses; r = .10 for drug offenses). 13 One common method to address potential geographical variation in the multivariate analysis of federal data is to control for U.S. Circuit Courts. A federal district judge is often bound to follow judicial decisions made by the U.S. Circuit Court that has jurisdiction over his or her district; however, the district judge is not required to follow decisions made by judges in other U.S. Circuit Courts. Therefore, federal judges within the same Circuit should reach more similar sentencing decisions than judges who preside over courts located in different Circuits. This approach begins with selecting a Circuit Court as the reference category, followed by creating and controlling for 11 dummy variables for the rest of the Circuits (Albonetti, 1997, 1998, 2002; Kautt, 2009; Kautt & DeLone, 2006; Kautt & Spohn, 2002; Pasko, 2002).

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2006 data set (i.e., 4,835 cases) is close to the average number of cases among all Circuits (i.e., 5,315 cases).14 Offender Characteristics The second group of independent variables includes legally proscribed factors, primarily offender characteristics which judges are precluded from taking into consideration in determining the appropriate sentence (see Table 1). Citizenship status, as well as race/ethnicity, is the primary independent variable in this study. In addition to the two variables, the current study controls for the offender’s gender, age, and education. Citizenship status is represented by a dummy variable with non-citizens coded 1 and citizens coded 0. Offender race/ethnicity comprises four dummy variables (Asian, Black, Hispanic, and White)15; White offenders are the reference category in all of the regression analyses. The gender variable differentiates between female offenders (coded 1) and male offenders (coded 0). The offender’s age is a continuous variable, measured by year at the time of sentencing.

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14

The 6th Circuit has jurisdiction over district courts in Kentucky, Michigan, Ohio, and Tennessee. 15 Unlike race that denotes perceived differences in physical appearance, ethnicity in the U.S. emphasizes differences in cultural features, generally referring to Hispanics or Latinos that can be represented by more than one racial background (Healey, 2003; McNamara & Burns, 2009). For example, a person who originates from a Spanish-speaking country in the Caribbean and who has the black color of skin is not considered a Black but a Hispanic or Latino. Furthermore, Hispanics are thought of as people who come from countries in Latino America and the Caribbean with Spanish as the official language, whereas Latinos are people who come from countries in the same region where not only Spanish but also other Romance languages (i.e., languages derived from Latin) are used as the official language (Healey, 2003; see also Walker, Spohn, & DeLone, 2007). For example, if a person originates from a French-speaking country in the Caribbean with the black color of skin, he or she is classified into the Latino group only. Following the above classifications and explanations, therefore, White offenders in this study point to non-Hispanic Whites; Black offenders are Black Americans or those who originate from Africa; and Hispanic offenders are those who have origins from Spanish-speaking Latin America and the Caribbean, regardless of skin color.

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Following the suggestion by prior studies (Helms & Jacobs, 2002; Mustard, 2001; Steffensmeier & Demuth, 2000), the current study squares the offender’s age to consider its curvilinear effect (Everett & Wojtkiewicz, 2002; Steffensmeier et al., 1995; see also Steffensmeier et al., 1998). Education is measured with four dummy variables (no high school diploma, high school diploma only, some college, and college/graduate degree); offenders without a high school degree are the reference category.

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Other Variables In testing Hypotheses 4, 5, and 6, additional variables have to be specified (see Table 1). Hypothesis 4 tests for between-group differences in terms of citizenship status. Consistent with conflict theory’s argument about strengthened social control for the powerless, intolerance of non-citizens’ unlawful behavior than citizens’ is reflected in judges’ severe punishment for non-citizens, regardless of their race and ethnicity. To test this hypothesis, which differentiates between offenders’ home countries of origin in terms of national economic status, a dichotomous variable measuring a country’s GDPPPP per capita is first created to determine the economic development of each offender’s home country.16 Because of the dichotomous characteristic, countries with the GDP-PPP per capita above the average of these countries’ GDPs-PPP per capita are categorized as “high GDP-PPP” countries and those below the average are categorized as “low GDP-PPP” countries (see Appendix C for categorization; also see Mitchell, 2005, for a similar method of dichotomous categorization for the crime rate). The mean of the GDP-PPP per capita among 181 countries in the IMF data equal to $12,203.88 in 2006 is used as the criterion for dichotomous grouping. In conducting between-group comparisons in terms of citizenship status, it is impossible to engage in any subcategorization for the United States, which as a whole is considered a high GDP-PPP country. In order to make the comparisons meaningful, the citizenship 16

In the current study, the term “country of origin” or “national origin” refers to a specific country that grants citizenship to an individual. The term “citizenship status” refers to whether or not an individual is a U.S. citizen. Namely, citizenship status does not specify the nationality of an individual.

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variable is converted into 4 dummy categories (i.e., non-citizen from high GDP countries, non-citizens from low GDP countries, Asian/White citizens, and Black/Hispanic citizens), with three dummy variables to test the hypothesis. This study groups Asians with Whites, as well as Blacks with Hispanics, because prior research has shown that the first two racial groups receive similarly favorable treatment and have higher economic standing, while the last two groups are often disadvantaged, especially economically (Everett & Wojtkiewicz, 2002; Schanzenbach, 2004). Regression models are run twice, first with Asian/White citizens as the reference category (to test for differences between non-citizens from high GDP countries and Asian/White citizens) and then with Black/Hispanic citizens as the reference category (to test for differences between non-citizens from low GDP countries and Black/Hispanic citizens). To test Hypothesis 5, a model is constructed to create a series of dummy variables to reflect racial, ethnic, and ethno-racial differences, which would further be combined with citizenship status to form interaction terms. In particular, the key interaction terms of interest for this hypothesis are two ethno-racial groups: Black-Latino citizens and Black-Latino non-citizens.17 The two ethno-racial groups of interest are used to distinguish Black-Latino and Afro-Caribbean offenders from other offenders sentenced in federal courts based on the linkage between race and ethnicity. Black Latinos and Afro-Caribbean people are of Black ancestry because early colonization and slavery led Europeans to import African Blacks into the Caribbean Islands for a labor force (Knight & Palmer, 1989). The current study uses two procedures to create the two groups of offenders. First, an offender whose race is Black and ethnicity is Hispanic clearly falls within one of the two groups. Second, several countries in the Caribbean area have a major population of African

17

This study uses Black-Latinos rather than Black-Hispanics to incorporate offenders speaking Romance languages into the citizen and non-citizen categories. Unlike the term Hispanic, the term Latino is not a coding category in the original federal sentencing data. For a discussion of the difference between Hispanics and Latinos, see Note 15.

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origin.18 For example, 95% of Haitians and 91% of Jamaicans have the black color of skin, and 90% of Barbados’s citizens are of African descent (CIA, 2009). Some of the offenders who are citizens of these countries are identified as Black with respect to both racial and ethnic status in the U.S. Sentencing Commission data. Despite such classification of race and ethnicity, members of these Caribbean countries have developed unique cultural characteristics that are influenced by the Latino and Hispanic world in the region and European colonists and that are distinct from their original African heritage (Saunders, 2005). As such, offenders from these countries are attributed to the Black-Latino and Afro-Caribbean group and are recoded as either Black-Latino U.S. citizens or Black-Latino non-U.S. citizens in this study. However, to capture offenders from these countries who are not Black-Latino, a reverse coding has been made if an offender indicates that his or her race is White and ethnicity is White or Hispanic. The reverse coding also applies to the situation in which an offender’s race is Asian and ethnicity is “other.” Interaction terms for testing this hypothesis include ten dummy variables: White noncitizens, Asian citizens, Asian non-citizens, Black citizens, Black noncitizens, Hispanic citizens, Hispanic non-citizens, Black-Latino citizens, and Black-Latino non-citizens, with White citizens as the reference category. Similar to Hypothesis 4, Hypothesis 6, which explores whether the independent and interactive effects of citizenship status and race/ethnicity on sentencing outcomes vary across geographical areas, needs a different variable coding. Recent sentencing research has highlighted the problem of data aggregation, which indicates that using nationwide data to explore the impact of sentencing disparity may mask variation in criminal court processing in individual jurisdictions (Spohn, 2005; Wu & Spohn, 2010; see also Dixon, 1995). Two

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18

According to ethnic data from the Central Intelligence Agency (CIA) (2009), countries around Central America and the Caribbean with more than 80% of the population who are of African descent are Antigua and Barbuda (91%), the Bahamas (85%), Barbados (90%), Dominica (86.8%), Grenada (82%), Haiti (95%), Jamaica (91.2%), St. Kitts and Nevis (predominantly black), and St. Lucia (82.5%). In addition, Afro-Trinidadians and Indo-Trinidadians account for 80% of the population in Trinidad and Tobago.

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solutions to this issue have been widely proposed by federal sentencing studies: One is the inclusion of dummy variables to control for district courts or Circuit Courts (e.g., Kautt & DeLone, 2006; Kautt & Spohn, 2002); the other is the comparison directly between small districts (e.g., Spohn, 2005; Wu & Spohn, 2010). However, problems arise with regard to the two solutions. The first solution does not allow researchers to observe variation in other legally relevant or irrelevant factors within each of the jurisdictions. The second solution, while addressing the problem of the first solution, suffers from overcomplexity once a large number of jurisdictions are taken into account or the research interest is at the national level. A balancing strategy between the two solutions is to group several jurisdictions into regional categories (Everett & Wojtkiewicz, 2002; see also Pasko, 2002). This approach is consistent with the current interest in examining the effects of interactions between citizenship status and race/ethnicity on sentencing decisions. The effects of social or racial/ethnic threat may be particularly salient in some areas where immigrants likely choose to reside because of proximity to their home countries. These effects may be similarly negligible in other areas with typically small populations of immigrants because judges feel less threat posed by non-citizens and racial/ethnic minorities. Based on the aforementioned balancing strategy, three dummy variables are created to contrast cases processed in southern bordering and/or high immigration states with those in northern bordering states and with those in other states. The three dummy variables are used to partition the data into three models for the purpose of between-model comparisons; they are not used as variables that are controlled for in multivariate analyses. To determine what is considered a high immigration state, information from the Urban Institute and Kaiser Commission on Medicaid and the Uninsured estimates based on the Census Bureau's March 2007 and 2008 Current Population Survey is utilized (Kaiser Family Foundation, n.d.). This source ranks all states and the District of Columbia in terms of the percent of the non-U.S. citizen population. The top 8 states/District with the greatest number of non-U.S. citizens are considered high immigration states in the current

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study.19 These states have at least 10% of the population who are nonU.S. citizens. Therefore, 11 states and District included in the southern bordering and/or high immigration states category are Arizona, California, District of Columbia, Florida, Illinois, Maryland, Nevada, New Jersey, New Mexico, New York, and Texas. In addition, 10 northern bordering states are identified, consisting of Idaho, Maine, Michigan, Minnesota, Montana, New Hampshire, North Dakota, Vermont, Washington, and Wisconsin.20 The remaining 30 states comprise the category of other states. Testing Hypothesis 6 at the individual level may raise the issue of ecological fallacy, which is derived from Robinson’s (1950) discussion about ecological corrections. The ecological fallacy occurs when inferences about the relationship between two variables at the individual level are drawn directly from the relationship at the aggregate level. However, such an assumption that the group relationship directly reflects the individual relationship in fact masks the within-group differences. For example, Robinson (1950) attempted to tackle the important distinction between the aggregate-level and individual-level relationships. He found that the correlation between the percentage of the population identified as immigrants and the percentage of the population identified as illiterates at the state level was -.53, whereas the correlation between immigration status and illiteracy at the individual level was reduced to .12. The difference in the direction of the relationship and the great disparity in the strength of the

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19

The top 8 states/District are (in order of the number of the non-U.S. citizen population) California (16%), New Jersey (12%), New York (11%), Florida (11%), Arizona (11%), Texas (11%), Nevada (11%), and District of Columbia (10%). 20 While bordering Canada, the State of New York is categorized in the southern bordering/high immigration states group, because this state is known as a gateway for immigration, with immigrants not only from Europe but also from Central America. In addition, the non-U.S. citizen population in New York is estimated around 2.13 million (Kaiser Family Foundation, n.d.; U.S. Census Bureau, 2008). This number is so substantial that categorizing New York in the northern bordering states group may generate a biased estimate.

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relationship led Robinson to caution against making direct inferences from aggregate data analysis to individual-level analysis. The issue with the ecological fallacy, however, does not apply to testing Hypothesis 6 in this study, although the method of grouping states in terms of their geographical characteristics is employed to create dummy variables. The current study’s main purpose for this hypothesis is to understand the individual difference in terms of the location where a case was adjudicated. The approach used to test this hypothesis begins directly with individual-level offender characteristics and confines all analyses to the individual level. In other words, this study does not aggregate individual data in order to understand how contextual factors have effects on sentencing decisions. Thus, the comparisons through partitioning the data into the locations of adjudication to examine the effects of citizenship status and race/ethnicity are similar to those through partitioning data into types of offense, types of attorneys, or other offender characteristics such as gender. Hypothesis 6, in fact, involves neither aggregate data nor multilevel analysis. PROCEDURES OF ANALYSIS Before discussions about the procedures of statistical analysis to be used in this study, a brief description of characteristics of the sentencing data, sentencing outcome models, and statistical issues is needed.

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Data and Statistical Issues Models of sentencing outcomes are grounded in censored data. In statistics, a censored sample means that a threshold determined by some criterion has to be met before the dependent variable is to be observed. When the observation fails to reach the threshold, its value for the dependent variable is treated as missing, while at the same time values for all independent variables are still present (Breen, 1996; see also Bushway, Johnson, & Slocum, 2007).21

21

In contrast with censored data, truncated data mean that when the observation does not reach the threshold, its values for both the dependent

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Researchers have noted that sociological data often suffer from sample selection bias because of the systematic exclusion of cases with specific attributes or cases that do not meet preexisting conditions (Berk, 1983; Berk & Ray, 1982). For instance, when researchers attempt to estimate the effects of sentence length on unwarranted disparity in the sentencing data, the threshold for observations to be included in the analysis is whether offenders are sentenced to jail or prison. The variable to determine the threshold is dichotomous (i.e., the decision of whether to incarcerate the offender), with the out decision coded 0 and the in decision coded 1. That is, judges mete out the length of the sentence only to those who receive the incarceration sentence, and the effects of sentence length can be estimated only for offenders sentenced to jail or prison. The observation is of interest in modeling sentence length only when it is equal to 1 (or > 0 in this case), resulting in a left-censored data because there are observations not included in the analysis. Similarly, in modeling the effects of probation length, judges impose the length of probation only on those who do not receive the incarceration sentence, and the effects of probation length can be estimated only for offenders who will remain in the community. The threshold for observations to remain present in the data set for analysis is that offenders do not receive the incarceration sentence. The observation is of interest in modeling probation length only when it is equal to 0 (or < 1 in this case), resulting in a right-censored data because, in a similar vein, there are observations not included in the analysis. The criterion to determine the threshold may depend on the dependent variable itself or another independent variable. When the criterion is determined by the dependent variable, the data are ordinarily censored; when the criterion is determined by another independent variable, the data are sample-selected (Breen, 1996). Censoring involves a sample selection issue only for sample-selected data rather than ordinarily censored data (Breen, 1996), as in the example of modeling sentence length and probation length. The OLS regression technique as a traditional statistical procedure to estimate the variable and independent variables are not provided (Breen, 1996; see also Bushway et al., 2007).

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Citizenship Status, Race/Ethnicity, and Sentencing

continuous dependent variable fails to fix the sample selection problem. This renders the estimates of the effects of independent variables on the dependent variable biased when some of the values for the latter are missing from the data set (Breen, 1996). There is some debate in the sentencing literature about the procedures of statistical analysis to remedy sample selection bias. Some argue for the Tobit model, while others advocate logistic and OLS regressions with the Heckman hazard rate as a correction term. This issue lies in whether the sentencing process is viewed as one stage or two stages (i.e., the incarceration decision and sentence length decision). The Tobit approach is effective for one-stage sentencing, whereas logistic and OLS regressions with the Heckman hazard rate are appropriate methods for two-stage sentencing. Sentencing studies typically use the procedures advocated by Berk (1983) and Heckman (1974) to address the sample selection bias stemming from the systematic exclusion of cases involving offenders who were not sentenced to prison (Engen & Gainey, 2000; Nobiling et al., 1998; Spohn & Spears, 2003; Steffensmeier & Demuth, 2000; Steffensmeier et al., 1998). As researchers in favor of the Tobit approach argue, the two-stage sentencing model is appropriate for the indeterminate sentencing structure that grants great discretionary power not only to judges but also to the parole board (Bushway & Piehl, 2001). Nonetheless, the two-stage distinction has been undermined under the determinate sentencing and guideline structures that are intended to remove discretion largely from the hand of judges and parole officials for consistency and fairness (Bushway & Piehl, 2001). The debate between the one-stage and two-stage approaches has fostered researchers to justify their selection of statistical analysis to tackle the sample selection issue. Despite the aforementioned argument by Bushway and Piehl (2001) and to be consistent with previous studies, the current study does not employ the Tobit approach for the analyses of sentence length and probation length. Instead, this study considers the use of the Heckman two-step correction by controlling for a hazard rate to correct sample selection bias to capture the likelihood that the offender would be sentenced to prison (Berk, 1983; Berk & Ray, 1982; Heckman, 1974) for two reasons. First, as other researchers criticize the inappropriateness of the Tobit approach in modeling the incarceration and sentence length decisions, “the two decisions are made consecutively rather than

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concurrently” (Kautt & DeLone, 2006, p. 116). This argument not only clarifies the conceptual distinction but also points to the influence of a causal process on the two decisions (Steffensmeier & Demuth, 2000, 2001). In particular, the causal process stresses the fact that the incarceration decision must occur prior to the determination of either sentence length or probation length. The main factors predicting the two decisions differ as well, with an offender’s criminal history best for the incarceration decision and offense severity best for the sentence length decision (Helms & Jacobs, 2002; Spohn, Gruhl, & Welch, 19811982; Sutton, 1978). These arguments are conceptually important and effectively justify a two-stage analysis. Second, research also has presented varying effects of legally irrelevant variables on sentencing outcomes when examining the two decisions separately (e.g., Kautt & DeLone, 2006; Kramer & Steffensmeier, 1993; Peterson & Hagan, 1984; Steffensmeier et al., 1993; Ulmer, 1997; Ulmer & Johnson, 2004; Wooldredge, 1998). In other words, treating the two decisions at the same stage may mask latent variations between them. The one-stage argument may face great difficulty dealing with judicial decisions with respect to downward or upward departures. Incorporating the Heckman hazard rate into a control nonetheless has two limitations. The first limitation involves collinearity, and the second is the reintroduction of additional bias. Although the issue with respect to collinearity between the Heckman hazard rate and other independent variables may become critical (Bushway et al., 2007), it is not without solution. In their three-city sentencing analysis, Spohn and Spears (2003) were faced with multicollinearity, with the VIFs for the Heckman hazard rate, the severity of the conviction, and criminal history greater than 5 in two of the three jurisdictions (i.e., in Miami and Kansas City) they examined. The solution they adopted was to include the Heckman hazard rate only in the partitioned Chicago model but not in the Miami and Kansas City models. Therefore, if the Heckman hazard rate is found to be highly correlated with other independent variables, eliminating this variable from the analysis serves as a solution (see also Johnson et al., 2008; Nobiling et al.,

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1998).22 Researchers also argue that while maximum likelihood estimation could be a better alternative than the Heckman hazard rate, the former is not immune to the collinearity problem or easy to calculate and thus the latter remains robust as a method to correct sample selection bias (Leung & Yu, 2000). Regarding the second limitation, the Heckman hazard rate used to correct sample selection bias may cause additional bias when applied to the data with a small sample size (Stolzenberg & Relles, 1990). This issue does not arise in this study, as the sample size is quite large in the number of more than 63,000. More to the point, in their scrutiny of this technique, Bushway et al. (2007) concluded that the Heckman hazard rate, while not a magic solution, is an appropriate technique. The issue with its application to examining sentencing outcomes is not due to statistical inappropriateness but due to conceptual disagreement on the two-stage sentencing process (Bushway & Piehl, 2001). The aforementioned strengths and limitations suggest that the Heckman hazard rate remains the most viable solution to sample selection bias for this study. Based on the two-stage assumption of the sentencing process (i.e., the decision of incarceration and the decision of sentence length), this type of selection process is incidental (i.e., sample-selected data) rather than explicit (i.e., censored data) and in turn Tobit is not an appropriate statistical technique for analysis (Bushway et al., 2007). In addition, because error terms for the two stages of decision making often are dependent, Heckman’s correction may serve as a possible solution. To make the Heckman hazard rate a valid approach, this study first examines the condition number to determine whether collinearity is a problem for the Heckman estimator and then whether this correction should be included in the model (Bushway et al., 2007; Johnson et al., 2008). The condition number is

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22

Bushway et al. (2007) suggest including in the model exclusion restrictions that, in the case of sentencing, affect the likelihood of being incarcerated but do not affect sentence length. This approach would alleviate collinearity particularly between the correction term and other independent variables. As they note, strength of evidence serves as one of the potential exclusion restrictions (see Albonetti, 1991). However, this variable is absent from the federal sentencing data, and other variables present in the federal sentencing data do not appear to be an exclusion restriction.

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calculated by dividing the maximum eigenvalue by the minimum eigenvalue in a regression analysis (Bushway et al., 2007). According to Leung and Yu (2000), a condition number smaller than 20 allows Heckman’s approach to be applied appropriately without exclusion restrictions, and collinearity becomes a problem when the condition number is greater than 20. If the examination of the condition number reveals that the Heckman hazard rate is not an appropriate technique because of a large condition number, a two part model that uses probit for the incarceration decision and OLS for sentence length and probation length is employed. Although Bushway et al. (2007) recommend the Full Information Maximum Likelihood (FIML) for the second method to identify the problem of collinearity, the FIML must be established in the normality assumption for the dependent variable. In other words, when the dependent variable has a skewed distribution, the Heckman hazard rate is a more reliable measure than the FIML. As mentioned earlier, sentence length or probation length in the federal data is highly skewed. Therefore, the normality assumption for the dependent variable is not met, and the examination of the condition number for the Heckman hazard rate suffices for the present purpose. This study follows Smits’s (2003) solution to first obtain the Heckman hazard rate and then compute the condition number based on the formula provided by Belsley, Kuh, and Welsch (1980). Smits (2003) develops a method to obtain the Heckman hazard rate with logistic regression instead of probit while avoiding the potential bias mentioned by Bushway et al. (2007). This approach allows not only for taking into account the recent concern with the accurate calculation of the Heckman hazard rate but also for finding an efficient way to determine whether it is necessary to control for the hazard rate in a regression model to correct sample selection bias. After assessment, estimated condition numbers for probation length (= 21) and sentence length (= 34) with the Heckman hazard rate included produce indexes larger than the suggested criterion of the condition number of 20, suggesting the problems of collinearity between the Heckman hazard rate and other independent variables. Although the VIF values for the Heckman hazard rate are smaller than 5 in the analysis of sentence length, there still is a possibility that multicollinearity between the Heckman hazard rate and other

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explanatory factors is observed. As Studenmund (1997) notes, one of the problems with the VIF is that “it is possible to have multicollinear effects in an equation that has no large VIFs” (p. 276). As a result, the Heckman hazard rate is removed from the sentence length and probation length analyses to be consistent with Bushway et al.’s (2007) caution about collinearity and their suggestive solution to this issue. Because the inclusion of the Heckman hazard rate in the model has been found to be inappropriate, a solution as suggested by Bushway et al. (2007) is to employ a two part model with probit for the incarceration decision and OLS for sentence length and probation length. Researchers have submitted different points of view with regard to probit and logistic regression. Bushway et al. (2007) criticize the prevalence of replacing probit for the logit with censored data in the criminological literature; others argue that the two statistical techniques indeed do not generate significantly different findings. For example, Bachman and Paternoster (2004) argue that probit produces results very similar to those of logistic regression and that “the choice between the two models is really a matter of personal preference and computer software availability” (p. 597). Studenmund (1997) also indicates that an extremely large sample in an analysis will make it unimportant the biggest difference between the two models in which probit relies on normality. Still, as Smits (2003) notes, the probit model in the SPSS program requires intensive hand typing as the first step to incorporate parameter estimates into a formula in order to calculate predicted values before the estimation of the Heckman hazard rate can be obtained. The SPSS probit procedure has no function to automatically calculate the predicted values. Smits (2003) therefore provides a method to estimate the Heckman hazard rate (or called Lambda in this author’s term) with the SPSS logistic regression program (see also the appendix in Bushway et al., 2007). This alternative makes an adequate adjustment to fit in the predicted values generated by the logit model with the quasi-probit model. Based on the absence of significant distinctions between the probit and logistic regressions in practice, the current study is relieved from Bushway et al.’s argument for the use of probit in the two part model. In summary, several procedures were conducted in order to determine whether correcting the selection bias by controlling for the Heckman hazard rate in regression models was necessary when exclusion restrictions were absent. First, Smits’s (2003) approach,

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rather than the calculation of the predicted probability, was adopted to accurately estimate the Heckman hazard rate. Second, I ran a logistic regression with a control for the Heckman hazard rate to find eigenvalues. Third, to determine whether controlling for the Heckman hazard rate in the model would be of great utility, the condition number was calculated through eigenvalues. Last, the condition number suggested that the inclusion of the Heckman hazard rate in the model brought about the collinearity concern. Consequently, the uncorrected two part model (i.e., the removal of the Heckman hazard rate) was adopted. This study will conduct the analysis of the two part model in the later section with logistic regression for the incarceration decision and OLS for sentence length and probation length. The above procedures addressed the recent concern with the accurate calculation of the Heckman hazard rate as well as the need to control for the hazard rate as a remedy to correct sample selection bias.

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Statistical Methods Univariate (i.e., descriptive), bivariate (i.e., correlation), and multivariate (i.e., regression) findings will be presented. Univariate, descriptive analysis provides a general look at the data, properties of variables, and variation through a presentation of frequency distributions, graphs, and information about means, medians, and standard deviations for the variables of interest. The importance of univariate analysis can be illustrated by the assessment of whether a variable has a skewed distribution that needs a further adjustment. As noted earlier, two of the dependent variables in this study are highly skewed, violating the normality assumption of OLS regression. Natural logarithm is a common approach to adjusting the skewed distribution. Assessment of the data through univariate analysis allows researchers to discover unusual properties of variables and seek remedies to reduce bias. Using the Pearson correlation coefficient, bivariate analysis provides a preliminary examination of collinearity among the independent variables in predicting the dependent variable. Inclusion of highly correlated independent variables in a multiple regression model may mask the individual effect of any of these variables, because highly correlated variables are assumed to have a similar effect on the dependent variable. The impact of collinearity therefore renders

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estimates unstable and unreliable as a result of the increased standard errors for parameter estimates and the decreased likelihood of yielding significant independent variables (Leung & Yu, 2000; Studenmund, 1997). As mentioned earlier, for example, some researchers speculate that incorporating the presumptive sentence, the number of conviction counts, and type of offense as control variables may produce biased results because of possible collinearity among these independent variables. Bivariate analysis gives an initial assessment of whether collinearity might be an issue among the variables. I conduct a multivariate analysis using logistic regression for the decision of whether to incarcerate an offender and OLS regression for the probation length and prison sentence length decisions. Logistic regression is an adequate statistical technique for a dichotomous dependent variable (i.e., the variable coded only 0 and 1), such as the incarceration decision in this study. By contrast, OLS regression is inappropriate in modeling a dichotomous dependent variable because the assumption of the error term is violated and also because the probability of the dependant variable is likely outside the bound of 0 and 1 (Bachman & Paternoster, 2004). Logistic regression relies on the naturally logged odds of an event occurring, where the odds amounts to the ratio of the probability of the event occurring and the probability of the event not occurring (Bachman & Paternoster, 2004). In this study, the interpretation of odds ratios can be based on the following formula (see Frenzel, 2005):

(e

b

− 1

)∗

100

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where e = the base of the natural logarithm, approximately equal to 2.71828; eb = the antilog (exponentiation) of the regression coefficient In addition to interpreting findings based on the antilog (or exponentiation) of the estimated regression coefficient, the difference in the probability of incarceration will be calculated as well. The formula for the calculation of the probability difference is (Hanushek & Jackson, 1999; Spohn & Holleran, 2000; Steffensmeier et al., 1998):

Data and Research Methodology p

d

=

111

odds − . 50 odds + 1

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where odds = odds ratio On the other hand, OLS regression is a robust analytic strategy for continuous dependent variables, such as probation length and sentence length. The interpretation of the estimated effect relies on the b coefficient but varies in the measurement of independent variables. When the independent variable is dichotomous, the b coefficient is the relative difference between the category of interest and the reference category. When the independent variable is continuous, the b coefficient is interpreted as the change in the dependent variable given a one-unit change in the independent variable. The logged b coefficient can be transformed into the unlogged measure with the formula of eb for interpretative convenience. I use a four-stage analytic design to test for the presence of disparity stemming from citizenship status. I begin at the first stage by analyzing the data to estimate the main, direct effects of citizenship status and other legally relevant and irrelevant factors (Hypothesis 1). At the second stage, I partition the data into two models—the noncitizen group and citizen group—to examine the within-group and between-group relationships. The within-group relationship investigates whether sentencing patterns of unwarranted racial/ethnical disparities in the non-citizen group are consistent with patterns in the citizen group (Hypothesis 2). The between-group relationship investigates how offender characteristics affect judges’ sentencing decisions between the two groups and how differences in economic conditions between the two groups have an impact on sentencing outcomes (Hypotheses 3 and 4). At the third stage, I examine interaction effects between citizenship status and race/ethnicity through a double-disadvantage hypothesis (Hypothesis 5). The last stage examines the hypothesis (Hypothesis 6) with respect to national uniformity (Spohn, 2005). Although researchers have explicitly or implicitly addressed this issue in the sentencing setting (see Pasko, 2002; Wu & Spohn, 2010), the extent to which they are relevant to the effects of citizenship status on sentencing outcomes is underdeveloped.

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In testing Hypothesis 3 and Hypothesis 6, I use the z test formula advocated by Paternoster, Brame, Mazerolle, and Piquero (1998) to determine whether the independent variables have an effect on sentencing outcomes invariant across the two models. The z test formula, as indicated below, is to assess the equality of regression coefficients:

z =

b1 − b 2 SEb1 2 + SEb 2 2

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where b1 and b2 are coefficients; SEb1 and SEb2 are the standard errors of the b coefficients.

CHAPTER 5

Statistical Analysis and Findings

The purpose of this study is to explore the extent to which citizenship status affects types of sentencing outcomes (i.e., incarceration, probation length, and prison sentence length) through its independent effects as well as interactions with race/ethnicity. Logistic regression is employed to analyze the incarceration decision, which is a dichotomous dependent variable. OLS regression is used to examine probation length and prison sentence length because the two dependent variables are continuous in nature. A natural log transformation applies to the two continuous dependent variables because of their highly skewed data distributions. Findings of statistical analyses are presented in terms of univariate descriptive statistics, bivariate correlations, and multivariate regression statistics for testing Hypotheses 1 to 6.

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UNIVARIATE STATISTICS Table 2 presents univariate statistics (or descriptive statistics) for the independent and dependent variables. The effective number of cases for analysis was 63,775 after the removal of cases with missing values and those without relevance to the purposes of this study (8,810 cases or 12.1 %). Approximately 89.5% of federal offenders in the 2006 data set received sentences to incarceration and 10.5% of them were placed on probation. Of the offenders sentenced to probation, the average length of probation was 35.4 months (SD = 16.5). In contrast, the

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average length of incarceration among those sentenced to jail or prison was 77.1 months (SD = 271.2).23 Regarding the two key offender characteristics—citizenship status and race/ethnicity—in this study, Table 2 displays that non-U.S. citizens comprised approximately 35% of the federal offenders whereas U.S. citizens accounted for 65% of them. Among those who were nonU.S. citizens, Mexican nationals constituted the largest group, accounting for approximately 72% of this subgroup, or 25% of all federal offenders (not shown). Offenders from each of the countries other than the U.S. and Mexico did not exceed 1.2% of all federal offenders. In addition, Table 2 displays that the largest race/ethnic group consisted of Hispanics (42.4%), followed by Whites (30.3%), Blacks (25.1%), and Asians (2.2%). However, once the data were partitioned by citizenship status, the racial/ethnic compositions varied (not shown). Of the U.S. citizens, 43.1% were Whites, 36.2% were Blacks, 18.7% were Hispanics, and 2.0% were Asians. In contrast, Hispanics accounted for 86.2% of non-U.S. citizens, and Whites (6.6%), Blacks (4.6%), and Asians (2.6%) only made up a small portion of federal non-U.S. citizen offenders. Furthermore, the typical offender in this data set was a male, 35year-old offender without a high school diploma. The typical offender also received no downward departure, entered a plea of guilty, was detained in a criminal justice institution prior to trial, and had one to two counts of conviction. The average length of the presumptive sentence was 92.1 months.24 With respect to the types of cases processed in federal courts, 38.7% of federal offenders committed drug-related offenses, followed by property and other offenses (23.8%),

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23

The mean and standard deviation presented here reflect an adjustment from the original data (see Chapter Four, p. 86). In other words, 248 cases with life imprisonment ordered and 15 cases with a sentence of incarceration of less than one day have been recorded. In addition, 6 capital cases and 24 cases without a prison term specified have been removed from the calculation of the mean and standard deviation of the sentence length variable. 24 The mean of the presumptive sentence presented here reflects an adjustment from the original data (see Chapter Four, p. 86). In other words, the calculation of the average presumptive sentence is based on the capped length of 4,000 months.

Statistical Analysis and Findings

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immigration offenses (22.3%), and violent offenses (15.2%). The most frequent single type of crime was drug trafficking; that amounted for 37.5% of all cases, compared to 22.3% for the second frequent single type of crime—immigration offenses.

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BIVARIATE STATISTICS Table 3 displays the bivariate relationships between any two variables explained in this study. On the one hand, the bivariate correlation analysis presents a preliminary diagnosis of whether collinearity between independent variables will become an issue in the later multivariate analysis. As some researchers suggest, a correlation coefficient greater than the absolute value of .80 is a warning of collinearity (Bohrnstedt & Knoke, 1994; Studenmund, 1997). On the other hand, the analysis of correlation between the independent variable and the dependent variable provides information as to whether the independent variable effectively predicts the dependent variable. The Pearson correlation coefficient is normally used with variables that are measured at the interval or ratio level (Bachman & Paternoster, 2004). When one of the variables is dichotomous, an associated technique, called the point-biserial correlation, is used. The formula for the point-biserial correlation is an algebraic simplification of the Pearson correlation formula that was developed before computers and represented a computationally easier way to calculate the correlation. The SPSS statistical package does not have a function specifically to compute a point-biserial correlation. Statisticians recommend simply using the Pearson correlation in this case because the formula for computing the point-biserial correlation is in fact equivalent to the formula for computing the Pearson correlation (Cohen, Cohen, West, & Aiken, 2003). Especially with a large sample, the results will be the same or very close to those which would have resulted from pointbiserial calculations. A similar contention has been proposed to deal with the situation where both variables are dichotomous and a phi correlation coefficient is appropriate for estimating their association. Therefore, this study replaces the point-biserial and phi coefficients with the Pearson correlation coefficient for the association between two variables, whether continuous or not.

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  Table 2. Descriptive Statistics for Dependent and Independent Variables

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Variable

N Dependent Variables

Incarceration Jail/prison (= 1) 57,067 Probation (= 0) 6,708 Logged probation length (in logged months) Logged prison sentence length (in logged months) Independent Variables Offender Characteristics Non-U.S. citizen Yes (= 1) 22,436 No (= 0) 41,339 Race/ethnicity Asian 1,405 Black 16,012 Hispanic 27,050 White (reference) 19,308 Gender Female (= 1) 8,369 Male (= 0) 55,406 Age at time of offense (in years) Education