This project explores the punishment of noncitizens in U.S. and German courts. While some scholars argue that citizenship is no longer legally relevant in the globalized world, empirical tests of the salience of citizenship under the law are scant and cross-national tests have yet to be undertaken. By comparing sentencing outcomes in Germany and the United States ? two advanced democracies with strong rule of law traditions but markedly different conceptions of citizenship and nationhood ? this project empirically evaluates the consequences of being an ?outsider? of the state when punished under the law. In doing so, this project addresses four related questions: 1) Are noncitizens punished more severely in U.S. and German courts? 2) Does the treatment of noncitizens differ between these two countries? 3) How do the effects of citizenship compare to other extra-legal offender attributes in each country? 4) How have practices of punishing noncitizens changed over time in each country, and what might explain these trends? The PIs draw on previous work highlighting exclusionary aspects of national membership and link these ideas with theories of law and punishment that emphasize the detriments of being an ?outsider? in social control institutions to develop hypotheses. Hypotheses are tested with data from U.S. federal courts and German district courts from 1995 to 2009, supplemented by qualitative interviews with judges in two major cities within each country.
With over 200 million international migrants today, understanding the consequences of lacking state membership has implications for policy makers, judicial practitioners, and scholars interested in international law, international migration, stratification, and social control. While many countries have made efforts to ensure equal justice along lines of race and ethnicity, there has been considerably less attention devoted to citizenship and legal status.
This project examines the punishment consequences of citizenship status in U.S. and German criminal courts. The conceptual and analytical models of sentencing merge two distinct theoretical traditions – citizenship studies and the sociology of punishment. Utilizing an ideal-type comparison of case outcomes in the United States and Germany – two advanced western democracies with strong rule of law traditions but markedly different conceptions of citizenship and nationhood – this study investigates the sentencing of non-state members using a unique cross-national, mixed-methodological research design. Specifically, data from the U.S. federal courts and German court system from 1998 to 2010 are used to estimate the punishment gap between citizen and noncitizen offenders across a range of statistical analyses. These results are then combined with judge interviews from both countries to identify and explicate the mechanisms linking national membership to punishment considerations. Two main findings emerge from this analysis. First, citizenship is a powerful predictor of increased punishment in U.S. and German courts. The results indicate that the effect of citizenship on sentencing is equal to or greater in magnitude than factors traditionally stressed in legal inequality research, such as race/ethnicity or gender. Particularly in U.S. federal courts, the evidence is clear that national boundaries are more salient than racial/ethnic distinctions. Second, noncitizens are punished more harshly in both countries despite fundamentally different legal, political, and normative conceptions of citizenship, suggesting that national boundaries are significant in criminal courts even in countries that have distinct definitions of national membership. The interviews suggest a variety of intervening mechanisms explain these findings. First, a prominent theme emerged that judges in both countries resented that noncitizens would compound their immigrant status with criminal transgressions and violate their countries hospitality. Second, foreigners lack of social bonds to society affected judges sentencing decisions through a variety of pathways, including defendants’ lack of gainful employment or native language proficiency. In the U.S., some judges also felt their sentencing options were limited because foreign defendants would likely be deported. Third, several judges viewed noncitizens criminality as rooted in cultural practices, and thus a message needed to be sent to other members of the immigrant group. These themes often overlapped, demonstrating an intricate web of relationships that explain the differential legal treatment of non-state members. These findings contribute to ongoing debates in sociolegal inequality, stratification, and citizenship studies. As foreigners increasingly fill the prisons of western societies, understanding the processes through which they are incarcerated can tell us a great deal about the salience of citizenship under the law, a nation’s sense of identity, and the prison’s place within the new globalized world. With the prison playing an ever larger role in protecting the borders of the state, the results from this dissertation suggest that as international migration increases, the central axes of legal inequality may no longer be defined by internal divisions within society, but by the division between ‘insiders’ and ‘outsiders’ of the state.
