By Kyle T. Green
With the issue of prison overpopulation on the nation’s collective mind, a closer look at alternative sentencing trends may help to provide answers. Since 1997, total state and federal incarceration rates have gradually increased, by a total of about ten percent to date. The increase corresponds with a consistent decreasing trend in alternative sentencing such as probation, probation with confinement, and prison with community confinement. Perhaps more surprisingly, is the sizable disparity in alternative sentencing between citizens and non-citizens, linking the incarceration rate growth to the rise in non-citizen offenders in the federal sentencing population.
Alternative Sentencing Disparity
In a report entitled “Alternative Sentencing in the Federal Criminal Justice System,” the United States Sentencing Commission found that, while non-citizens represent only 8.6% of the nation’s population, they comprise upwards of 15% of the total prison population and nearly 30% of the Federal prison population. According to the study, sentencing policies differ vastly between U.S. citizens and non-citizens, as non-citizens rarely receive alternative sentencing. For the purpose of comparing rates and procedures of citizens and non-citizens in the federal system, the USSC divides offender sentences into four zones:
- Zone A: 0-6 month confinement—probation only; probation with confinement; prison with community confinement; imprisonment
- Zone B: 1-12 months confinement—probation with community confinement can be substituted for imprisonment; one month of the total term imposed must be imprisonment
- Zone C: 8-16 months confinement—imprisonment for at least half of the minimum range of the sentence, with the remaining half in community confinement
- Zone D: 1 year-life—no probation or community confinement
The vast majority (between 86% and 95%) of non-citizens in Zones A, B and C were sentenced to prison, while far less U.S. citizens in corresponding zones were sentenced to imprisonment.
U.S. citizen offenders in Zone A have consistently been sentenced to probation at a rate of approximately 75 percent. Probation for non-citizen offenders in the corresponding zone had dropped to 13.1% in 2007, making the ratio of alternative sentencing almost six to one, of U.S. citizens versus non-citizens.
Trends are similar in Zones B and C: 30-50% of citizens are sentenced to probation versus 3-4% of non-citizens. Only in Zone D do sentences correlate. Zone D sentences do not fluctuate as much due to the harshness of the crimes involved. The great majority of both U.S. citizens and non-citizens are sentenced to prison for Zone D-related crimes.
Sentencing Policy and Antiquated Law
The explanation of this disparity lies in a mix of sentencing policy and antiquated law. For instance, illegal aliens are subject to deportation and account for approximately 80.3% of non-citizen Federal offenders. The Bureau of Prisons assigns deportable aliens to confinement at their second highest custody level, requiring institutional supervision and prohibiting work details or other programs outside the secure institution.
At the same time, since 1917 there has been a law which provides that immigrants can be deported only after they have served their sentences here in the U.S., in order to ensure that they were adequately punished. Therefore, an illegal immigrant who is convicted of a crime, even an immigration offense, is automatically sent to Federal prison, where they must serve their sentence with little to no chance for parole or other alternatives before they can be deported.
Deportation Loophole as a Solution to Prison Overpopulation
Now, a loophole does exist that allows immigrants to be deported without serving their full sentences if they were convicted of non-violent offenses. However, the appropriate power must request early deportation and correction officials almost never use the exception. Thus, it is clear that some change must be made in the imprisonment-before-deportation rule to reduce the number of non-violent illegal immigrants being held in the system. Amending the law to allow for immediate deportation of immigration related offenses could, not only balance the disparity of alternative sentencing, but ease overcrowding and prison budget crises as well.
Kyle T. Green is a criminal defense attorney in Mesa, Arizona. Mr. Green has handled cases on both sides of the law and is a passionate advocate for justice.