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April 13, 2016
Important drug offender data begging hard normative policy question regarding noncitizen US prisoners
I just came across this interesting posting and data analysis via NumbersUSA, a group that describes itself as "moderates, conservatives & liberals working for immigration numbers that serve America's finest goals." The posting is titled "Sentencing Reform Legislation Would Disproportionately Favor Non-Citizens," and here are some excerpts (with one very critical line emphasized by me toward the end of this excerpt):
U.S. prisoner data clearly shows two things. One, the majority of low-level drug offenders are serving their sentences in state, not federal prisons. Two, most of those incarcerated in federal prison for drug charges are non-citizens....
[Only] 3.6 percent of all prisoners, or 48,600, under state jurisdiction are serving time for drug possession. The remaining drug offenders were convicted for trafficking and other related offenses, such as facilitating the illicit drug trade. The distribution of drug prisoners in state prisons is fairly evenly divided among Whites, Blacks, and Hispanics. A higher proportion of females (24%) than males (15%) are incarcerated for drugs in state prisons.
As of April 7, 2016, there were 196,285 prisoners in the custody of the Federal Bureau of Prisons, with 46.5 percent of these prisoners, (91,270) sentenced for drug offenses. The percentage of prisoners incarcerated for drugs is just over two and half times greater than the state prison population. However, overall, there are fewer prisoners serving time in federal prison for drug charges than in state prisons (212,000).
The Federal government collects data differently for state and federal prisoners. In order to get the breakdown of offenses for federal drug prisoners, data from the U.S Sentencing Commission is available. Looking at sentencing statistics from FY2007 to FY2015, a clear distinction between federal and state prison populations is that the proportion of federal prisoners serving time for drug possession is much higher than for state prisoners, and Hispanics are disproportionately represented among federal drug inmates.
There is a higher ratio of Hispanics serving drug sentences for both trafficking and possession convictions in federal prisons. As Daniel Horowitz pointed out, this is because many of the drug offenders in federal prison are serving sentences for drug convictions related to the illicit drug trade on the U.S.-Mexico border.
In response to a congressional request regarding sentencing data for federal drug offenses, the U.S. Sentencing Commission sent data showing that 95% of the 305 individuals serving time in federal prison for simple drug offenses are non-citizens and 95.7 % were sentenced in southwest border districts — virtually all of them in Arizona. Furthermore, 95.7 % of the simple possession drug crimes for which offenders are incarcerated involved marijuana and the median weight of the drug involved in cases from border districts was 22,000 grams (approximately 48 pounds). Only 13 simple possession cases were tried in non-border districts in FY 2014.
In a letter sent to Sen. Jeff Sessions last fall, the Federal Bureau of Prisons reported that 77% of individuals convicted of federal drug possession charges and more than 25% of individuals convicted of federal drug trafficking charges in FY2015 were non-citizen.
The profile for federal drug prisoners is different than at the state level, and this is why Congress needs to recognize and address these differences when crafting legislation that will effect this population. Federal drug and immigration enforcement are for now inextricably tied together....
Sentencing reform bills reducing penalties for some federal prisoners (S. 2123 and H.R. 3713) are being portrayed by their supporters as a long overdue corrective to harsh sentencing laws for individuals who violate federal drug laws, which they argue create racial disparities in the nation’s prison population.
Reforming drug sentencing laws is one thing. Releasing criminal aliens back into U.S. interior, is quite another. The Obama Administration has already shown its willingness to do the latter, including those who were deemed to be criminal threats to the public. Without a bill with strong, clear language and, most importantly, a Congress willing to extend oversight over the executive branch, it is plain that the sentencing reform legislation likely to soon come before Congress will accomplish little more than to provide an early release for dangerous criminal aliens, while still failing to hold President Obama to account for his failure to enforce U.S. immigration law.
This data discussion is a bit confusing because of its many references to both federal and state prisoners and both trafficking and possession offense and both percentages and absolute numbers. But, data particulars and confusions aside, the piece rightly highlights a very important data reality integral to any sophisticated discussion of efforts to reduce the federal prison population, especially for drug offenses: a significant percentage (and thus a large total number) of imprisoned and future federal drug offenders who would benefit from federal sentencing reform (perhaps up to 35% or even higher) would be noncitizens.
It understandable that persons deeply concerned about illegal immigration, and likely eager for policy changes always to prioritize benefits to US citizens over noncitizens, would find troublesome the statistical reality that federal sentencing reforms would benefit noncitizens significantly. However, this perspective may change if one realizes that noncitizen serious federal drug offenders who would get reduced sentences under any proposed sentencing reform would not get released "back into the US interior." Rather, any and every noncitizen serious federal drug offender who gets a reduced sentence is always going to be subject to immediate deportation once release from prison.
The important reality the many imprisoned and future noncitizen federal drug offenders are all to be deported after serving their federal prison sentences raises the hard normative policy question that is begged in any discussion of this data. That question is: What normative policy goal are we really achieving — other than spending billions of federal taxpayer dollars to house, feed and provide medical care to criminal noncitizens — by having noncitizens serve extra long federal prison terms if they are all to be deported at the end of these their terms no matter what?
Bill Otis and many others opposing proposed federal reforms are quick to stress the risk of increased domestic crime if we reduce current and future federal sentences and thereby release former offenders back into US communities sooner. But that argument really does not hold up when we are talking about noncitizen offenders who will be forcibly deported to another nation after finishing whatever length of sentence they serve at federal taxpayer expense. (Indeed, I suspect imprisoning noncitizens in the US for long terms actually leads criminal noncitizens to become ever-more connected to US citizens and makes them even more likely to seek illegal return to the US after they are deported).
April 13, 2016 at 12:51 PM | Permalink
Doug, apparently, you missed the point. Obama isn't deporting all criminals. Not even close.
Drug smugglers/dealers who are found back in the US after deportation should be sentenced to 25 years in prison.
Posted by: federalist | Apr 13, 2016 1:08:32 PM
Federalist: what evidence do you have that Obama is not deporting federal drug felons after they serve a prison sentence?
Posted by: Doug B. | Apr 13, 2016 3:09:51 PM
Why impose lengthy sentences on non-citizens who will be deported after leaving BOP custody?
1) Because the deterrent effect of a long sentence exceeds that of a short sentence. When impoverished people are offered considerable money to smuggle drugs, they're more likely to go through with it if they don't fear lengthy incarceration.
2) it hardly seems fair to impose longer sentences on those who commit their crimes while legally here than on those who commit crimes while illegally here.
Posted by: Obvious | Apr 13, 2016 7:52:46 PM
100% of my felony drug clients who were here illegally were deported after serving their sentences. They weren't released back into the community for even a day. And FWIW, some of them - particularly ones who were brought to this country as children and had no remaining ties to Mexico - preferred imprisonment in the U.S. over deportation.
Posted by: former AFPD | Apr 13, 2016 8:02:36 PM
It sounds to me like the main problem is that we need to replace the United States Attorney for the District of Arizona who is exercising his or her discretion in a manner grossly at odds with all of his or her ninety-some fellow United States Attorneys in every other district (border and non-border) in the United States.
Posted by: ohwilleke | Apr 13, 2016 8:14:43 PM
Every non-citizen I ever represented over 35 years who has been convicted of a drug crime has been deported, except for those who became government witnesses.
Posted by: Michael R. Levine | Apr 14, 2016 8:27:34 AM
Look at the policy Doug . . . .
Posted by: federalist | Apr 14, 2016 8:57:38 AM
What policy, federalist?
The comments here reinforce my understanding that every noncitizen felony drug offender, save cooperators, gets deported after finishing their prison sentence. I agree that matters would be different if many or even some significant percentage of these noncitizen federal felons were released back into the US. But I am looking for any data or tangible evidence that this is what happens. Can you point to any?
Posted by: Doug B. | Apr 14, 2016 9:38:29 AM
Look up ICE's policy for Apprehension, Detention and Removal of "Undocumented" Immigrants. These are enforcement priorities--doesn't mean that they happen 100% of the time.
"every noncitizen felony drug offender . . . . gets deported"--oh really? Have you checked the news--there are so many criminal aliens that get to walk the streets.
Your problem is that you are looking at the law, rather than the actions of the Obama Administration.
Alien drug smugglers/dealers should rot in prison.
Posted by: federalist | Apr 14, 2016 9:50:22 AM
I may type later •
I ran a rough draft past Stephen King and he fainted ☺
Posted by: Docile Jim Brady „ the Nemo Me ♠ Impune Lacessit ♂ in Oregon ‼ | Apr 14, 2016 12:39:26 PM
I think federalist is confusing 2 different groups: (1) Deportable drug felons at the end of their prison terms. This group gets deported 100% of the time. (2) Deportable aliens living in the community who have a prior felony drug conviction. This group, I'm sure, doesn't get deported 100% of the time. For one thing, they have to come to the attention of law enforcement first.
Posted by: former AFPD | Apr 14, 2016 12:46:10 PM
I don't know that I am confusing anything--the issue isn't whether someone gets deported when he leaves the federal pen, but whether he ultimately gets to walk our streets. In any event, my guess is that the number is somewhat less than 100% after they walk out of prison--bogus asylum, CAT claims etc. clog up the streets, and when ICE catches a previously deported drug felon, that guy isn't always deported.
Posted by: federalist | Apr 14, 2016 1:29:01 PM
federalist, I may be confusing the point you were trying to make via your first comment. If you point is just, Prez Obama should be working harder to deport more noncitizens who have committed crimes, okay. But, after looking at the Obama policy/enforcement discretion, it is my understanding that, by operation of both law and enforcement priority, "every noncitizen felony drug offender is to get deported." It seems you cannot point to any data to dispute this, but you did say "have you checked the news."
More to the point, this post was NOT about general deportation policy/practices. Rather, it was a response to an article which seemed to be complaining that federal sentencing reform "will accomplish little more than to provide an early release for dangerous criminal aliens" who would (all? or most?) be "releas[ed] back into U.S. interior." That is just not the reality, and I wanted to flag that the reality is more nuanced and raises important normative questions.
To his credit, "Obvious," spoke to the point of the post, whereas you used this as another excuse to go after Obama (while also sowing some confusion).
Posted by: Doug B. | Apr 14, 2016 4:00:12 PM
You do still seem a little confused, federalist. You say that your "guess is that the number is somewhat less than 100% after they walk out of prison." But that's the thing, they don't "walk out of prison", as you assume. They are instead deported.
Posted by: former AFPD | Apr 14, 2016 5:07:56 PM
Guys, this isn't hard. Criminal aliens who are incarcerated don't walk the streets. Those who are released get deported and many come back, and then they aren't always deported. See the policy.
And AFPD--do 100% get deported? No, there are asylum claims, CAT claims etc. Oh and AFPD, what about countries that won't take their criminals back, e.g., Somalia? Your idiot president got three people killed by forgetting about Zavydas v. Davis when he withheld deportation of Haitians (including criminals).
Like I said, guys, not that hard. If they are in prison, we don't have to worry about the lawless president foisting criminals on us.
Posted by: federalist | Apr 14, 2016 8:53:22 PM
In terms of deterrence I think that long prison sentences have little deterrence effect. My own view is that they should be deported after the first offense. If they come back again, they should be shot.
Seriously, we keep throwing long prison sentences at both drug dealers and sex offenders, the two largest prison populations. Yet they keep coming and they keep offending.
I detest the logic that goes: this isn't working but we don't have any better ideas so lets keep doing it.
Posted by: Daniel | Apr 14, 2016 11:17:14 PM
To his credit, "Obvious," spoke to the point of the post, whereas you used this as another excuse to go after Obama (while also sowing some confusion).
Well, Doug---do you think Obama deserves criticism for the failure to deport criminal? Do you think he deserves criticism for the three murders committed by Kesler Dufrene? If not, why not?
Posted by: federalist | Apr 15, 2016 9:18:44 AM
Good job, federalist. You finally seem to grasp the distinction between deportable felons who are deported immediately upon finishing their sentences and Deportable
in the community with prior convictions. I agree, it isn't hard. But it does sometimes confuse people who aren't familiar with the criminal justice system.
Posted by: former AFPD | Apr 15, 2016 9:54:52 AM
AFPD, I was never confused.
Here's what I wrote:
"Doug, apparently, you missed the point. Obama isn't deporting all criminals. Not even close.
Drug smugglers/dealers who are found back in the US after deportation should be sentenced to 25 years in prison."
You'll note I said "back in the US"--so it seems I grasped the distinction from the beginning. What you guys failed to grasp is that "everyone is deported" isn't necessarily true (CAT, asylum and Zavydas v. Davis) and that I wasn't vouching for the "released into the interior" stuff in the post.
You tried to catch me on some inside baseball stuff, and I was looking at the bigger picture (and not worrying about directly from prison to our streets or indirectly), i.e., incarcerated aliens being on our streets--that they're deported doesn't mean that they won't be on our streets.
Like I said, this isn't hard.
Posted by: federalist | Apr 15, 2016 11:54:45 AM
Once again--federalist owns the field. Doug's writes: "Bill Otis and many others opposing proposed federal reforms are quick to stress the risk of increased domestic crime if we reduce current and future federal sentences and thereby release former offenders back into US communities sooner. But that argument really does not hold up when we are talking about noncitizen offenders who will be forcibly deported to another nation after finishing whatever length of sentence they serve at federal taxpayer expense. (Indeed, I suspect imprisoning noncitizens in the US for long terms actually leads criminal noncitizens to become ever-more connected to US citizens and makes them even more likely to seek illegal return to the US after they are deported)."
So Doug is arguing that we can let these turkeys go--by the by, you have to be a seriously bad person if you go to another country and deal poison, but whatev--because they will be deported. Yeah, but if they come back, they won't be. So if the idea is to keep people off the streets, then Doug's "they will be gone" argument doesn't address the fact that they often come back.
Posted by: federalist | Apr 18, 2016 10:16:57 AM
federalist, the reason I did not address "the fact that [drug dealing noncitizens] often come back" is because I was trying to specifically respond to the quoted pieces assertion that federal statutory sentencing reform would involve "Releasing criminal aliens back into U.S. interior." I quoted and stressed this in the main post, and yet you keep want to distort and confuse the simple reality that the commentary I quoted just had the law flat wrong. (You, too, have the law wrong because I believe that any and every person caught coming back after being deported for a drug felony will get (1) imprisoned for a long time, and (2) get deported again automatically.)
I suppose I should ackwoledge that you do "own the field," federalist, when it comes to distorting and confusing important points so that you can engage in your favorite Obama-bashing rehetoric. Of course, before Supremecy Clause left, you had to share the misguided comment field with him --- although he generally engaged in silly lawyer-bashing a bit more than silly Obama-bashing. But now you do own the misguided comment field, and I appreciate your carrying this torch.
Posted by: Doug B. | Apr 18, 2016 11:00:32 AM
Sorry Doug--I don't see how it is silly Obama-bashing to note that he has failed to protect Americans from the predations of alien criminals. Also, am I wrong for laying Kesler Dufrene's murders at his feet? If not, why not? Is that a "silly criticism"?
"(You, too, have the law wrong because I believe that any and every person caught coming back after being deported for a drug felony will get (1) imprisoned for a long time, and (2) get deported again automatically.)"
Not sure, Doug, how "the law" is what matters when it's discretion that matters. And as for 100%--that cannot be right, due to Zavydas v. Davis, asylum claims and CAT claims. Doug, there are hundreds of thousands of criminal aliens walking the streets after being caught--are you blind to this reality?
Lastly, yes you are right that drug criminals are deported out of federal pens and that the argument that they will be released into the interior is wrong (other than the exceptions I mentioned), but it doesn't prove your point about wasting resources since many do come back and commit more crimes and don't face the harshest of immigration regimes.
Posted by: federalist | Apr 18, 2016 11:28:13 AM
federalist: it is not silly to express your opinions on Obama's immigration policies if this blog generally or this post in particular concerned Obama's immigration policies. But it is silly to have comments about discretionary immigration policies when the primary point of this post was to highlight a critical false premise in the article I flagged; and thereafter it took until your NINTH entry to make clear that you fully understood that the part of the article I highlighted was substantively wrong.
I understand you think Zavydas was wrongly decided and are troubled by Kesler Dufrene case, but this gets me back to the very first follow-up I posed after your first comment: "what evidence do you have that Obama is not deporting federal drug felons after they serve a prison sentence?" If there was evidence of lots of cases not leading to deportation after release from a FEDERAL prison sentence based on Zavydas, asylum or CAT claims, then you would be making strong points. But I do not think I have ever heard/seen a single such case (though this is not my practice arena), and I am unaware of any evidence that this happens in an big number of cases.
It would be interesting to have data on how many noncitizen federal drug felons end up back in the US later AFTER they are deported, and for purposes of my main post it would be interesting to have data on whether the percentage who returned illegally was lower or higher depending on how long they served for their initial federal drug felony. If you tried to pursue this point at the outset, federalist, the rest of your points on this thread would not seem to me so confusing/distracting/silly.
Posted by: Doug B. | Apr 18, 2016 4:52:39 PM
Exactly, Doug. Exactly.
Posted by: former AFPD | Apr 18, 2016 10:49:27 PM
Doug, if you had left it at---god these guys missed a fundamental point, then ok. But you expanded on that to take a shot at Bill Otis, and in so doing, you strongly implied that once these guys serve their sentences, then they aren't issues for our society anymore. I responded to that point--if this wasn't clear to you, I think that's a result of your desire to pounce, rather than anything I said. So the reference to the NINTH post seems like misplaced criticism.
The "what evidence" question suffers from a similar flaw. You apparently wanted me to concede that drug felons go from the BOP to wherever they came from--ok, fine, but that concession doesn't impact my point at all, and that wasn't what I was talking about. More to the point though--you strongly imply that we should let these turkeys go because once they are deported, they are no longer a problem. But that is flatly NOT true since many criminal aliens can and do come back, and they are not necessarily deported if and when they are caught. And note your use of language--you speak in terms of "after" as referring solely to the time they serve their sentences when "after" clearly also refers to criminals who return after they serve their sentences. It's like saying that the cat can't get out of the house because the door is locked when there is an open window through which it can escape.
I notice, yet again, you dodge the question about Kesler Dufrene---does Barack "I am a Con Law Prof" Obama take any responsibility for those murders since his policy to NOT exclude criminals from the no-deportation to Haiti order resulted in Dufrene walking our streets when he should not have been. Seems to me that our uber-smart con law prof forgot about the 'rat judging that led to Zavydas or didn't care--either way, it's an issue.
Posted by: federalist | Apr 19, 2016 10:24:49 AM
To be sensible and on-point, federalist, and especially if you wanted to focus on my criticisms of Bill's concerns that early releases means more crime, you would have needed to make the point --- ideally backed up by some data/evidence, not anecdote --- that criminal aliens can and will be MORE likely to come back to the US AND ALSO are more likely to come back SOONER if they are deported after serving a reduced federal felony drug sentence AND are committing a crimes after their return during a period when they would otherwise have been locked up in federal prison.
You did not make this point or come anywhere close to engaging with data at this level of sophistication; you simply stated that I "missed the point [because] Obama isn't deporting all criminals. Not even close." Thereafter, I did not "pounce," I simply asked "what evidence do you have that Obama is not deporting federal drug felons after they serve a prison sentence," to which you responded "look at the policy." I asked what policy you meant to reference because the Obama immigration policy puts as the highest priority deporting "aliens convicted of an offense classified as a felony in the convicting jurisdiction." Long story short, you blew it here in an effort to criticize my post without even fully understanding the issues, and you keep digging deeper with each comment. Hillary Clinton would be impressed.
As for Kesler Dufrene, you'd have to ask the Prez if he takes any responsibility for those murders, but raising that case is just another example of your disaffinity (or inability) to stay focused and clear on these issues because you'd rather spend you time complaining about Prez Oba,a and 'rat judging.
Posted by: Doug B. | Apr 19, 2016 3:00:07 PM
I don't know how I could have been clearer since I spoke in terms of returns after a deportation. And I don't see how I drifted really that much--y'all talked about 100% of drug felon aliens (other than cooperators) being deported--I pointed out Zavydas, which ensures that those who are NOT able to be deported are "released into the interior", and since I was on the subject of Zavydas, I asked you, the consequentialist, whether you thought Obama responsible for the criminal alien that murdered three people due to the admixture of Obama's policy and the 'rat decision in Zavydas.
And then you guys yammered about me being confused--I wasn't.
As for the lack of sophistication, methinks that criticism is best directed at you. You posit that because the door is closed, the burglar cannot get in through the window. Guess what, they come back. So, oh gee, they are all (by the way not true) deported after sentence doesn't mean that we're done with their predations. This is an elemental error in thinking.
As for the policy, if felons were being deported, why are there so many here? The policy pre-supposes many will not be. Surely you've paid attention to the news and have seen congressional testimony on this travesty? You want to release alien criminals on the premise that they won't be back--I show you the premise is flawed, and you double down. http://www.breitbart.com/big-government/2015/10/30/dhs-179027-convicted-criminal-aliens-deportation-orders-remain-u-s/
Maybe you, the consequentialist, ought to take some time to look at the impotence of the current Administration when it comes to criminal aliens.
Posted by: federalist | Apr 19, 2016 4:31:08 PM
You could have beeen MUCH clearer, federalist, because you did not even bring up "returns after a deportation" until your fifth comment. But now that your mistaken understanding has been revealed, you are trying to spin away your misunderstanding. In so doing, you keep digging deeper. No biggie though, except as another yet example of where your eagerness to attack eclipses your eagerness to understand.
And, again, your complaints about many criminal noncitizens being in the US misses the whole point of the main posted article and my comments. The concern I had was about the factual misstatement in the article, and then I wondered aloud what benefit we get from having lower-level federal drug prisoners (who will be the only ones directly benefitted by reduced terms of the SRCA) subjected to "extra long federal prison terms if they are all to be deported at the end of these their terms." If you had said in response that we should not disregard that many come back after deportation, then you would have been clear and raised a useful point. But that is not what you said.
As for the "admixture of Obama's policy and the 'rat decision in Zavydas," I am drawn back to what has been my view for years: we need comprehensive immigration reform so that federal laws and policies in the 21st century can refocus on the right immigration priorities. I believe Prez Obama has been advocating for such reform for his entire presidency, so it would seem more appropriate to me to primarily blame Congress for failing to fix a broken immigration system (though there is certainly more than enough blame to tar everyone inside Beltway).
Posted by: Doug B. | Apr 20, 2016 8:51:39 AM
Seriously? Are you kidding me? This is a quote from me in the first post: "Drug smugglers/dealers who are found back in the US after deportation should be sentenced to 25 years in prison." Note that I said "found in the US after deportation". And I am completely baffled how you could say that I missed the point--you missed the issue of returning deportees. Your snark at Bill Otis yet missed this obvious problem--a problem I alluded to in my first post.
As for Kesler Dufrene, your response shows a massive amount of ignorance--no one thinks that current law with respect to deporting Kesler Dufrene is wrong--he, after all, was a criminal and should have been deported. So blaming a lack of immigration reform is silly since immigration reform wouldn't affect his case at all. Dufrene was let loose on American streets to kill three people because Barack Obama, the con law prof, didn't exclude criminals from his order withholding deportation and Zavydas v. Davis required the government to release him if he were not deported. You just don't want to criticize Obama from the right, and you'll clown yourself to avoid it.
Posted by: federalist | Apr 20, 2016 10:37:25 AM
Federalist's favorite M.O.: set up a straw man and knock him down.
Posted by: former AFPD | Apr 20, 2016 10:48:26 AM
Wow, AFPD--you guys posit that we can release aliens because they get deported--I point out that they come back, and I'm the idiot? Ok, gotcha. The fact is, AFPD, I didn't confuse anything.
And what strawman have I set up? Kesler Dufrene? Well, he did kill three people after he would have been deported had our self-styled Con Law prof simply excluded criminal aliens from the no deportation order. But he didn't, and that was either ignorance or deliberate--either way, he (and, of course, Breyer and Ginsburg) are responsible for the three deaths.
Doug, if you or AFPD can refute that, I am all ears.
Posted by: federalist | Apr 20, 2016 11:27:20 AM
federalist - your lack of self-awareness has grown tedious. I'm done.
Posted by: former AFPD | Apr 20, 2016 3:28:50 PM
AFPD, you should have been done a while ago.
Posted by: federalist | Apr 21, 2016 9:14:29 AM