Noncitizens in the Federal Criminal Justice System (A BJS Report)

Noncitizens in the Federal Criminal Justice System (A BJS Report)

Bureau of Justice Statistics

"Noncitizens in the Federal Criminal Justice System (A BJS Report)" by Bureau of Justice Statistics. Alaska Justice Forum 13(4): 2-6 (Winter 1997). The Bureau of Justice Statistics reports on noncitizens in U.S. federal courts and prisons. Based on the Bureau of Justice Statistics report "Noncitizens in the Federal Criminal Justice System", NCJ-160934. The Justice Center presents additional information about "Noncitizens in Alaska".

The number of noncitizens processed in the federal criminal justice system increased an average 10 per cent annually from 1984 to 1994. During 1984, 3,462 noncitizens were prosecuted in U.S. District Courts; during 1994, more than 10,000 were prosecuted. The greatest part of this increase occurred between 1986 and 1989. Since 1989 the number has remained fairly stable. Over the same decade, the number of noncitizens legally admitted to the U.S., including tourists, increased on average 8 per cent annually, from approximately 10 million during 1984 to 23 million in 1994.

Fifty-five per cent of the noncitizens prosecuted in U.S. District Courts were identified as legal aliens at the beginning of their prosecutions. Of the noncitizens adjudicated in U.S. District Courts in 1994, 87.3 per cent were convicted, with 92.3 per cent of these pleading guilty and 7.6 per cent convicted at trial.

In contrast to the substantial increase in the number of noncitizens prosecuted, the overall federal criminal caseload increased at a much slower rate between 1984 and 1994 - an average of less than 2 per cent annually. During 1984 approximately 49,000 defendants were prosecuted in U.S. District Courts; during 1994 approximately 59,000 were prosecuted.

The growth in the number of noncitizens prosecuted was generally attributable to an increase in the number of noncitizens charged with drug and immigration offenses.

Types of Noncitizens

Federal law identifies three major types of noncitizens:

(1) immigrants - persons who migrate to the United States and who are granted legal permanent residence;

(2) refugees and asylees - persons who are outside of their country of nationality and are unable or unwilling to return to that country for fear of persecution;

(3) nonimmigrants - persons who are admitted to the United States for a temporary period but not for permanent residence - for example, tourists, students, foreigners working in the United States, and Mexican and Canadian citizens with Border Crossing Cards.

The vast majority of noncitizens legally admitted to the United States are nonimmigrants. Excluding border crossers, many of whom make numerous entries annually, about 23 million noncitizens were admitted during 1994: approximately 804,000 were immigrants, 126,000 were refugees and asylees, and more than 22 million were nonimmigrants (Table 1). The majority (78%) of nonimmigrants admitted to the United States were tourists.

Table 1. Number of Noncitizens Admitted to the United States, 1984-1994

Status of Noncitizens

The U.S. Immigration and Naturalization Service (INS) assigns a status to identify the legality of a noncitizen's presence in the United States. The two statuses used include:

(1) legal aliens - noncitizens who enter the United States after inspection and have not violated the terms of their admission;

(2) illegal aliens - noncitizens who (a) enter the United States without having been admitted after inspection or without presenting themselves for inspection, or (b) legally enter the United States but who subsequently violate a condition of their visa, for example, by remaining in the United States beyond the period authorized or by committing a criminal offense.

Criminal aliens are noncitizens who have been convicted of certain felonies, such as, for example, crimes of moral turpitude (like murder, manslaughter, rape), drug trafficking offenses, certain firearms offenses, or certain offenses relating to national security.

By law, noncitizens classified as criminal aliens are deportable once criminal proceedings against them have been terminated or after they have completed serving their sentence.

Fifty-five percent of the noncitizens prosecuted in U.S. District Courts were identified by pretrial service officers as legal aliens at the beginning of their prosecution.

Processing Illegal Aliens

The vast majority of noncitizens entering the United States from 1984 to 1994 were legal aliens - primarily tourists. While the exact number of illegal aliens in the United States is not known, INS estimates their number to be between 3 and 4 million. During a 4-year period beginning October 1988, the estimated number of illegal aliens in the United States increased approximately 299,000 per year. INS apprehends and expels more than 1 million illegal aliens annually. Approximately 97 per cent of those apprehended during 1994 were Mexican nationals intercepted at the border attempting to enter without inspection. Additionally, approximately 5,500 persons were denied entry into the United States for cause: 47 per cent for prior criminal convictions and 47 per cent for entry without inspection.

INS has several options for removing an illegal alien from the United States. Fewer than 3 per cent of those apprehended are actually deported. The most commonly used method for removing an illegal alien is voluntary return with safeguards. Under this method, aliens admit to their illegal status and agree to leave the United States voluntarily. Unlike deportation, voluntary departure does not require adjudication by an immigration judge. Aliens who are voluntarily returned at no expense to the United States are not prohibited from legally entering at a later time. During 1994 more than 39,000 aliens were deported and more than 1 million voluntarily departed.

Under federal law a deported alien may not be admitted to the United States for 5 years after deportation. Entry by a previously deported alien within 5 years of deportation is a criminal offense subject to a maximum imprisonment term of 2 years. Entry by a previously deported alien with a criminal history including a drug offense is a criminal offense subject to a maximum term of 10 years. Entry by a previously deported alien with a criminal history including an aggravated felony is a criminal offense subject to a maximum term of 20 years. During 1994, 1,450 noncitizens were convicted for illegal entry into the United States after a previous deportation: 54.8 per cent of these noncitizens had a criminal history including a drug offense but not including an aggravated felony, and 23.8 per cent, a criminal history including an aggravated felony.

Table 1. Country of Citizenship of Noncitizens Convicted of an Offense in U.S. District Courts, 1994

Characteristics of Noncitizens Prosecuted in U.S. District Courts

Country of citizenship

Noncitizens convited of a federal offense during 1994 were from more than 75 countries. Nearly half (48.6%) of all noncitizens convicted were from Mexico (Table 2). Additionally, 14.6 per cent of the noncitizens convicted were from South America; 14.2 per cent were from the Caribbean Islands; and 2.2 per cent were from Canada.

Demographic characteristics

Most noncitizens prosecuted in U.S. District Courts were from Latin America. Hispanics comprised 75.7 per cent of noncitizens prosecuted. Eleven percent of the noncitizens prosecuted were black non-Hispanic; 7.9 per cent were white non-Hispanic; and 5.3 per cent were Asian. Those noncitizens identified as black were primarily from Nigeria (31.3%) and Jamaica (29.9%), and those noncitizens identified as Asian were primarily from China (16.5%), Vietnam (15.3%), Korea (11.1%), and the Philippines (10.3%).

Among defendants prosecuted in U.S. District Courts, noncitizens tended to be younger and less educated than citizens: 51 per cent of noncitizens were under age 30, compared with 42 per cent of citizens. (The median age of noncitizens prosecuted was 30 years; the median age of citizens was 33 years.) Almost 60 per cent of noncitizens did not have a high school education, or its equivalent, in contrast to less than 30 per cent of citizens.

Criminal history

Noncitizens prosecuted in U.S. District Courts are less likely to have a known criminal history than U.S. citizens. Approximately 44 per cent of noncitizens and 60 per cent of U.S. citizens prosecuted had a known criminal history.

To determine if a noncitizen has had a foreign arrest and/or conviction, federal probation officers are instructed to request an arrest check from INTERPOL - the coordinating group for international law enforcement.

Of the noncitizens prosecuted, the majority, 56.3 per cent, had no known criminal history; 30.7 per cent had a prior conviction for a nonviolent felony; 9.3 per cent had a prior conviction for a violent felony; and 13 per cent had a prior conviction for a misdemeanor.

Prosecution of Noncitizens in U.S. District Courts

The number of noncitizens whose cases were terminated in U.S. District Courts tripled from 1984 to 1994 (Table 3). Between 1984 and 1994, the number of noncitizens increased an average 10 per cent annually - from 3,462 to 10,352. The number of noncitizens prosecuted increased at a faster rate than the overall federal caseload. Over the same period the overall federal caseload (both citizens and noncitizens) increased an average 2 per cent annually - from approximately 49,000 during 1984 to more than 59,000 during 1994.

Table 3. Noncitizens Prosecuted in U.S. District Courts, 1984-1994

The greatest part of the increase in the number of noncitizens prosecuted occurred between 1986 and 1989, when the number increased by almost 6,000. Since 1989 the number of noncitizens prosecuted has remained fairly stable. The growth in the number of noncitizens prosecuted between 1986 and 1989 was generally attributable to an increase in the number of noncitizens charged with drug and immigration offenses. Drug and immigration offenses account for the majority of the offenses for which noncitizens are prosecuted.

During 1984 drug and immigration offenses accounted for 69 per cent of the offenses for which noncitizens were prosecuted. By 1994 these two offenses accounted for over 78 per cent of the offenses for which noncitizens were prosecuted.

Noncitizens prosecuted in U.S. District Courts were primarily concentrated in the judicial districts near the southwestern border.

The District of Arizona (15.3 per cent of all noncitizens prosecuted), the Southern District of California (10.0%), the Southern District of Texas (9.4%), the Western District of Texas (7.2%), the Central District of California (7.1%), and the District of New Mexico (4.0%) together accounted for more than half of the total noncitizen federal caseload durig 1994. The other judicial districts where a substantial number of noncitizens were prosecuted included the following: the Southern District of Florida (6.8%), the Eastern District of New York (3.5%), the Southern District of New York (2.9%), the Eastern District of California (2.2%), and the District of Oregon (2.0%).

Offense Committed

Drug offenses

Between 1984 and 1994 the number of noncitizens who were charged with drug offenses and whose cases were terminated increased at an average 13 per cent annually - from 1,204 to 4,633 (Table 3). Over the same period, the overall number of federal drug prosecutions increased 7 per cent annually - from approximately 10,000 during 1984 to more than 20,000 during 1994.

Figure 1. Noncitizens Prosecuted in U.S. District Courts, 1984-1994

Noncitizens convicted of a drug offense were primarily involved with the distribution or importation of cocaine powder (35.7%), marijuana (34.6%), and heroin (17.7%). Few (6%) noncitizens were involved with crack cocaine.

Among noncitizens convicted of drug offenses, about 41 per cent involved with cocaine powder were sentenced for having less than 5 kilograms; 62 per cent involved with heroin, having less than 1 kilogram; and 72 per cent involved with marijuana, less than 100 kilograms.

These drug quantities correspond to the minimum quantity necessary to invoke a 10-year mandatory minimum sentence.

However, the available data indicate that noncitizens were more likely than citizens to have played a minor role in drug offenses. Approximately 29 per cent of the noncitizen federal drug defendants who were convicted received a downward sentencing adjustment for a "mitigating role," compared with 14 per cent of U.S. citizen drug defendants.

Additionally, noncitizen federal inmates identifying themselves as being involved in drug conspiracies were more likely than citizens to describe their role as low-level: approximately 69 per cent of noncitizens, compared with 56 per cent of U.S. citizens, identified their role in the drug offense as low-level.

Immigration offenses

Between 1984 and 1994 the number of noncitizens who were charged with an immigration offense and whose cases were terminated increased an average 10 per cent annually - from 1,186 to 3,477 (Table 3).

Noncitizens prosecuted for an immigration offense are typically charged with illegally reentering the United States. Although any illegal entry into the United States is a criminal offense, illegal entry cases are rarely prosecuted unless the noncitizens had made multiple illegal entries.

Illegal reentry into the United States is a criminal offense if the noncitizen was previously deported by INS for illegally entering the United States or for being a criminal alien. Illegal reentry by a noncitizen previously deported is a criminal offense subject to a maximum penalty of 2 years' imprisonment. Illegal entry by a noncitizen who is a criminal alien (as defined by statute) is a criminal offense subject to a maximum penalty of 10 years' imprisonment, or 20 years' imprisonment if the noncitizen was previously convicted of an aggravated felony. Approximately 67 per cent of noncitizens convicted of an immigration offense were convicted of illegally entering the United States or reentering after deportation.

Of those noncitizens convicted of illegally entering the United States, 78.6 per cent had a prior criminal conviction: 54.8 per cent had a prior conviction for a criminal offense other than an aggravated felony, and 23.8 per cent had a prior conviction for an aggravated felony.

Smuggling, transporting, or harboring illegal aliens is a criminal offense subject to a maximum penalty of 10 years' imprisonment for each alien smuggled. During 1994, 18.7 per cent of the noncitizens convicted of an immigration offense were convicted of alien smuggling. Of those noncitizens convicted of alien smuggling, 26.4 per cent were sentenced for smugling fewer than 6 aliens; 49.2 per cent, for smuggling between 6 and 24 aliens; 16.8 per cent, for between 25 and 99 aliens; and 7.7 per cent, for 100 or more aliens.

Other offenses

During 1994, 1.4 per cent, 13.3 per cent, and 6.8 per cent of noncitizens were prosecuted for violent offenses, property offenses, and public-order offenses other than immigration offenses, respectively (Table 3).

Disposition

Of the noncitizens adjudicated in U.S. District Courts during 1994, 87.3 per cent were convicted. Of those noncitizens convicted, 92.3 per cent pleaded guilty to the offense charged and 7.6 per cent were convicted at trial. Of the 12.7 per cent who were not convicted, the charges were dismissed in 91.3 per cent of the cases, and the defendant was acquitted at trial in 8.7 per cent of the cases.

Sentencing

During 1994, 4,322 noncitizens convicted of a federal drug offense received a prison sentence with an average term of 69.9 months. U.S. citizens convicted of a federal drug offense received prison sentences with an average term of 85.2 months. By law, federal prisoners must serve at least 85 per cent of the sentence before being released. Therefore, a noncitizen convicted of a drug offense and sentenced to the average term of imprisonment could expect to serve 61 months before being released and deported.

Because of the increases both in the number of noncitizens convicted and in time served by offenders, the number of noncitizens serving a sentence in federal prison increased an average 15 per cent annually between 1984 and 1994. During 1984, 4,088 noncitizens were serving a sentence of imprisonment - 56 per cent for a drug offense; during 1994, 18,929 were incarcerated - 75 per cent for a drug offense.

The number of noncitizens serving a sentence of imprisonment increased at a faster rate than the overall federal prison population. While the number of noncitizens incarcerated increased an average 15 per cent annually, the overall population increased by 10 per cent annually - from 31,105 during 1984 to 87,437 during 1994.

Table 4. Noncitizens Serving a Sentence of Imprisonment in a Federal Prison, 1984-1994

The average cost to incarcerate an inmate in a federal correctional institution during 1994 was approximately $21,300. Therefore, the U.S. Government expended an estimated $400 million during 1994 to incarcerate 18,929 noncitizens who were convicted of a federal offense.

The preceding article was derived from Bureau of Justice Statistics report "Noncitizens in the Federal Criminal Justice System," NCJ-160934. Copies of the entire report may be obtained from the Alaska Justice Statistical Analysis Unit or on the World Wide Web from the Bureau of Justice Statistics at http://www.ojp.usdoj.gov/bjs/.