Foreign Nationals

Overview of Legislation

Since the mid-1980s, a number of laws have been passed that have caused the numbers of foreign nationals in U.S. prisons to grow. The 1984 Sentencing Reform Act, the 1986 Anti-Drug Abuse Act, the 1991 U.S. federal sentencing guidelines, the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, and the Antiterrorism and Effective Death Penalty Act of 1996 all increased the alien inmate population substantially. These laws and their revised versions have both expanded the definition of various crimes and lengthened the sentences with particular regards to non-U.S. citizens.

The 1984 Sentencing Reform Act requires defendants to serve out 85% of their sentences. This affects foreign nationals' prison sentence length disproportionately because the crimes they commit typically carry longer sentences. About 75% of foreign nationals are convicted of drug offenses, which under federal sentencing guidelines carry harsher statutory minimum terms of imprisonment than other offenses. Given the time-served requirements, noncitizens serve an average of 50 months in U.S. prisons.

Departures from the federal sentencing guidelines influence noncitizens' length of imprisonment mainly by decreasing offenders' sentence length. Annually, approximately 27% of foreign nationals receive departures that are either increases or decreases, from the established federal sentencing guidelines. Approximately 16% received a lesser sentence by offering substantial assistance to the government in prosecuting or investigating other individuals. Another 10% had their sentences reduced through plea-bargaining. On the other hand, another 1% received an upward departure, that is, longer sentences, due mainly to the large quantity of drugs involved or extensive criminal history.

The foreign inmate prison population has been growing at an annual rate of about 15% for the past 20 years. According to the Bureau of Justice Statistics, the overall prison population increased an average of only 10% during the same time period. Given the number of foreign nationals living in the United States, the differences in incarceration rates between U.S. citizens and noncitizens seem problematic. In 2000, the Bureau of Justice Statistics estimated that foreign nationals in federal prisons would continue to increase at a rate of 4% annually through 2005, because of the new deportation procedures incorporated in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act dictated increased law enforcement and also immediate deportation of illegal aliens by the U.S. Immigration and Naturalization Service (INS) after they have served their time. This has resulted in a threefold increase in immigration offenders housed in the federal system. (In 2003, the INS was merged into the Department of Homeland Security and renamed the U.S. Citizenship and Immigration Services, USCIS.)

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