Guest post by Michael T. Light. Michael is an Associate Professor of Sociology at the University of Wisconsin-Madison. He holds degrees in Sociology (PhD) and Criminology (MA) from Penn State University, and has been a visiting scholar at the Max Planck Institute for Foreign and International Criminal Law and the University of Warwick School of Law. His research focuses on immigration, crime, and punishment. Publications from this work include “How do Criminal Courts Respond in Times of Crisis? Evidence from 9/11” (American Journal of Sociology), “Does Undocumented Immigration Increase Violent Crime” (Criminology), “Punishing the ‘Others’: Citizenship and State Social Control in the United States and Germany” (European Journal of Sociology), “Citizenship and Punishment: The Salience of National Membership in U.S. Criminal Courts” (American Sociological Review), and “The Punishment Consequences of Lacking National Membership in Germany” (Social Forces). Current projects examine the criminal case processing of immigrants in state courts (National Science Foundation, 2019-2021) and crime and recidivism among the undocumented (National Institute of Justice grant, 2020-2022).

How do courts respond to national security emergencies? Answering this question speaks to fundamental principles about the rule of law in democratic societies. In the United States, for example, the judiciary is meant to be a safeguard against state overreach in the wake of emergencies such as the 9/11 terrorist attacks. Understanding the import of this charge, legal scholars have written hundreds of articles and books on whether the judiciary protects individual liberties from the encroachment of the executive and legislative branches. Yet, not a single study has investigated how the courts themselves respond to national crises in one of their core functions – criminal sentencing. As my colleagues and I describe in our recent article in the American Journal of Sociology, this is a major gap for at least three reasons.   

First, the judiciary wields both substantial power and discretion to restrict liberty through detention, incarceration, and supervision. Second, following decades of mass incarceration, the number of people entangled in some stage of the criminal justice system reached its highest point in U.S. history in the years after 9/11. Third, as described throughout the field of “border criminology,” in recent decades the traditional lines between immigration and criminal law have blurred as the tools of the criminal justice system – the prison, police, and the courts – have become core mechanisms of immigration enforcement.

This criminalization of immigrants accelerated after the September 11 attacks. As a result, courts have increasingly punished substantial numbers of foreign nationals – the group that has historically been the most aggressive target of national security measures and thus most vulnerable during national crises. To provide a sense of scale, in the year preceding 9/11, approximately 36 percent of those sentenced in a U.S. Federal Court were non-U.S. citizens. By 2010, non-citizens made up nearly 48 percent of the federal docket.  

Yet, despite these trends, previous research told us virtually nothing about if or how national emergencies influence punishment practices. Our article sought to fill this gap by leveraging 9/11 as a natural experiment to understand the criminal sentencing of non-U.S. citizens before and after the attacks. Several notable findings emerged from our inquiry.

We found little evidence that the severity of sentences for non-U.S. citizen defendants changed much nationwide. We did find, however, considerable evidence of a more local 9/11 effect, whereby the punishment gap between U.S. citizens and non-U.S. citizens widened significantly in the New York and Washington DC district courts following the attacks. The strength of our analysis relies on the fact that district courts operate within a common set of rules intended to ensure uniformity in sentencing. In other words, there are no federal prosecutorial mandates or sentencing guidelines that apply only to the New York and Washington, D.C., districts. Thus, the sentencing of non-U.S. citizens in in New York and D.C. should have followed a common trend to the sentencing of non-U.S. citizens observed elsewhere. But this is not what we found. We found that had it not been for 9/11, significantly more non-U.S. citizens in New York and Washington DC would have received non-prison sentences. And it is important to note that our analysis accounted for a host of legally relevant factors such as the severity of the crime, the defendant’s criminal history, and changes to the federal sentencing guidelines.

We then undertook a series of supplementary analyses to check the robustness of these results and answer several additional questions. For example, do our findings reflect changes in the sentencing of non-citizens or of minorities more generally? The short answer is they reflect changes in the punishment of non-U.S. citizens. We observe no comparable shift in the sentencing of minority defendants relative to whites following 9/11, nationally or in the districts of New York and D.C. We also ask whose behavior explains these findings? Are these sentencing differences due to changes in policy? Changes in prosecutors’ charging decisions? Our analysis of restricted data from the U.S. Sentencing Commission suggests that, rather than policy shifts or changes in prosecutorial decisions, the most likely explanation is that that judges in New York and DC used their discretion to increase sentences for non-citizen defendants after the Sept. 11 terrorist attacks.   

We further examine how long the “9/11 effect” lasted. Was the spike in punishment seen over a matter of weeks? Months? The answer is years. Four years to be specific. That is, we found that non-U.S. citizens convicted in New York and Washington D.C. received harsher sentences as a result of 9/11 up until 2006.

There are multiple implications of our study. Chief among them is a call for greater scrutiny of criminal courts during emergencies. As we highlight in the article, the first major U.S. Supreme Court case in the war on terror was not decided until June 28, 2004 (Rasul v Bush). Between the fall of the twin towers and that time, roughly 70,000 non-U.S. citizens were sentenced in a federal court. Until our study, these cases had scarcely been considered in reference to 9/11, let alone examined empirically. Our study suggests that the mechanisms linking national emergencies to judicial decision-making extend beyond the scope of executive and legislative actions, to even routine criminal cases. Informed by these results, future research should investigate how criminal courts outside the United States respond to major national security emergencies. Within the context of increasing proliferation of global terrorism, the timing of such research could hardly be more auspicious.

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How to cite this blog post (Harvard style) 

Light, M. (2020). The Punishment of Immigrants in Times of Crisis: Evidence from 9/11. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/09/punishment [date]