The New Face of Legal Inequality: Noncitizens and the Long-Term Trends in Sentencing Disparities across U.S. District Courts, 1992–2009

In the wake of mass immigration from Latin America, legal scholars have shifted focus from racial to ethnic inequality under the law. A series of studies now suggest that Hispanics may be the most disadvantaged group in U.S. courts, yet this body of work has yet to fully engage the role of citizenship status. The present research examines the punishment consequences for non- U.S. citizens sentenced in federal courts between 1992 and 2009. Drawing from work in citizenship studies and sociolegal inequality, I hypothesize that nonstate members will be punished more severely than U.S. citizens, and any trends in Hispanic ethnicity over this period will be linked to punitive changes in the treatment of noncitizens. In line with this hypothesis, results indicate a considerable punishment gap between citizens and noncitizens-larger than minority-white disparities. Additionally, this citizenship "penalty" has increased at the incarceration stage, explaining the majority of the increase in Hispanic-white disparity over the past two decades. As international migration increases, these findings call for greater theoretical and empirical breadth in legal inequality research beyond traditional emphases, such as race and ethnicity.The study of inequality and punishment has been a major enter- prise in the law and society tradition. The focus of this research, though, has changed over time in the wake of major demographic shifts. Historically, the purview of scholarship has been limited to the dichotomy between blacks and whites. However, against the backdrop of decades of increased immigration from Latin America, more recent research argues for a concerted emphasis on Hispanic ethnicity for understanding contemporary legal stratification (Spohn 2000; Steffensmeier & Demuth 2000, 2001). Drawing from the minority threat perspective (Blalock 1967), this trend plays a prominent role in contemporary theoretical accounts of criminal punishment. For example, Steffensmeier and Demuth (2000: 710) argue "the specific social and historical context involving Hispanic Americans, particularly their recent high levels of immigration, exacerbates perceptions of their cultural dissimilarity and the 'threat' they pose" which in turn "contribute[s] to their harsher treatment in criminal courts." Using federal court data, the authors show that Hispanics receive more severe punishment than both white and black defendants. Subsequent research in this vein also suggests that Hispanics are now the most disadvantaged group within the courts (Doerner & Demuth 2009; Steffensmeier & Demuth 2001).However, the body of research noting the shifting axes of legal inequality toward Hispanics has yet to fully engage the role of citizenship status. This is likely consequential given that 26 percent of all Hispanics in the United States are noncitizens and 80 percent of Hispanics punished in U.S. federal courts over the past two decades lacked U.S. citizenship.1 Furthermore, the increased pros- ecution and punishment of noncitizens coincide with broader trends of enhanced social control of immigrants (Stumpf 2006; Welch 2003), leading some to suggest that the border now repre- sents the new criminal justice frontier (Simon 1998). According to Bosworth and Kaufman (2011: 431), for instance, those who lack U.S. citizenship (regardless of race or ethnicity) have become the "next and newest enemy" in the U.S. war on crime.Thus, one must account for changes in the social control of non-U.S. citizens in recent decades to understand the significance of Hispanic ethnicity on criminal punishment. Moreover, if the shifting demography of criminal offenders correlates with changes in legal stratification, any changes over time in the punishment of Hispanics will be inextricably linked to changes in the treatment of noncitizens. Though recent scholarship has begun to examine the role of citizenship at criminal sentencing (Demuth 2002; Wolfe, Pyrooz, & Spohn 2011; Wu & Delone 2012), extant research has not fully examined the long-term punishment trends for Hispanic and non-U. …