“Sentencing Immigrants”

The title of this post is the title of this new article authored by Eric Fish now available via SSRN. Here is its abstract:

The federal government has created a separate and unequal sentencing system for undocumented immigrants.  Over a third of all federal felony cases involve immigrants charged with the crime of entering the United States.  With Donald Trump returning to the White House, that number will increase significantly.  Under the Federal Sentencing Guidelines, defendants in these cases have their criminal history counted against them twice.  U.S. citizen defendants only have their criminal history counted once.  This results in immigrants suffering significantly larger recidivist enhancements for the exact same prior convictions.  And these double enhancements are determined in a confusing and irrational manner, with multi-year swings turning on minor details like the timing of a deportation order or probation violation. Furthermore, under the First Step Act, undocumented defendants are barred from in-custody programs that can reduce sentences by up to one-third.  They therefore serve a significantly higher portion of their prison terms than do U.S. citizens.

This article details how federal sentencing law explicitly discriminates against undocumented immigrants.  It traces the history of their unequal treatment over the last three decades.  It also proposes a framework for judges to remedy this discrimination: sentencing constitutionalism.  When judges make discretionary sentencing decisions, they can and should enforce constitutional anti-discrimination principles to a greater degree than they do while reviewing legislation.  In keeping with this principle, judges should decline to follow the Sentencing Guidelines in double-counting illegal reentry defendants’ past convictions.  They should also reduce immigrants’ sentences to account for the fact that they serve a higher portion of their prison terms than do citizens.  Equal Protection doctrine erects numerous obstacles to challenging these discriminatory rules.  But judges’ discretionary sentencing decisions need not be constrained by the deference principles built into formal doctrine.  They can and should adhere to a higher standard of equality.  The principle of sentencing constitutionalism is illustrated by federal judges’ widespread rejection of federal crack cocaine sentencing guidelines.  Like crack cocaine sentencing, reentry sentencing is racially discriminatory in design and effect.  And, like they have with crack cocaine sentencing, judges should work to counteract that discrimination.