Political rhetoric on immigration, stereotypes of migrants, and contentious debate surrounding the southern border as a primary entry point for drugs into the United States have generated inquiries into whether sentencing outcomes of those adjudicated in southern border districts differ from those sentenced in non-border districts. A small but growing number of sentencing scholars (Hartley, 2008; Hartley & Armendariz, 2011; Holland & Prohaska, 2021) have focused attention on the effects of what Hartley and Armendariz (2011) refer to as ‘border justice.’ The concept of border justice is defined as disparate punishment based on or influenced by geographic proximity to the southern border (Hartley & Armendariz, 2011). The conceptualization is grounded on the premise of the focal concern theory where punishment will be influenced by local concerns of the community (Steffensmeier et al., 1998). Local concerns over the trafficking of drugs along the southern border, for instance, is presumed to trigger harsher punishment for defendants sentenced in jurisdictions close to the border.
Although these studies have collectively recognized that outcome variance can be conditioned by court locality, they are nonetheless limited in their assumption that the geographical location of the state is sufficient in justifying its classification as a border district. Holland and Prohaska (2021), for example, defined border districts as “all districts in states that share a border with Mexico” (p. 104). We argue that this simplistic practice of broadly aggregating data from the four southern border states of Arizona, New Mexico, Texas, and California potentially obscures important biases within states. As an example, since probation offices are known to customize the national presentence template to accommodate the localized practices and concerns of the district (Johnson & Kent, 2019), aggregating all cases within the border state of Arizona may mask critical differences that may emerge if one were to separate cases adjudicated in Yuma– 10 miles from the Mexican border – from cases settled in Flagstaff, which is over 500 miles from the Mexican border.
The state of California provides a unique venue for studying the effects of “border justice.” First, it is the only state with a federal district (i.e., the Southern District of California, hereafter “SDC”) that makes up the entire shared international border between itself and Mexico (San Diego-Imperial High Intensity Drug Trafficking Areas, n.d.). In addition, the San Ysidro Port of Entry, located just 15 miles south of downtown San Diego, is the busiest land port of entry in the country (U.S. Department of Transportation, 2022) and the entire Western Hemisphere, and the fourth busiest in the world (WorldAtlas, n.d.). Therefore, unlike any other federal district in the country, 100 percent of the cases in the SDC are adjudicated solely within a city/county that borders Mexico. Second, since all three probation offices in the district are in cities (Chula Vista, El Centro, and San Diego) that are within counties (San Diego County and Imperial County) along the southern border, there is a greater likelihood that the presentence investigation report and judicial decision-making will reflect local concerns surrounding border issues. Lastly, not only did Weisberg (2019) refer to California as a trendsetter, but he also posits,
[i]n a state notorious for wild swings between harshness and leniency, California has served as a legal and political laboratory in which we can observe the relative powers and the catalytic reactions among all levels of government and criminal justice agencies” (p. 36).
Against this backdrop, the current study builds upon previous research on ‘border justice’ by exploring how sentencing outcomes of federal drug traffickers in non-border districts of Eastern, Northern, and Central California differ from the “distinctly pure” border district of Southern California.
The Importance of Local Concerns
According to Ulmer (1997), “the most important characteristics and process of criminal justice are to be found at the local level, where communities and their courts enact, filter, and perhaps modify the laws and policies of larger scale institutions of the state” (p. xi). Courts and courtroom workgroups have also been described as “social worlds” or “communities” with their own distinct norms and directives (Eisenstein et al., 1988; Ulmer, 1991, 2005; Ulmer & Johnson, 2004). These ideas and descriptions rest on the premise that not only do courts have discretion, but they are also empowered with the autonomy needed to address local ideologies and concerns. Therefore, despite expected uniformity in federal sentencing, like state courts, sentencing decisions and patterns in federal courts are subject to variation according to jurisdictional characteristics. Some legal scholars (e.g., Bibas, 2005; Weinstein, 2006) have even welcomed the local and regional variation in federal sentencing as it holds the court accountable to the needs and concerns of the districts in which they serve. This perspective is emphasized by Weinstein (2006), who argued that “we should not seek to eliminate every vestige of regional legal culture in America” (p. 495) and acknowledged by sentencing researchers (e.g., Topaz et al., 2023; Wu & Spohn, 2010) who has provide evidence of jurisdictional effects on a constellation of legally relevant, extra-legal, and case-related factors.
The Impact of Legally Relevant Factors
Legally relevant factors, such as the presumptive sentence, sentencing departures, and type of offense, have long been established as strong predictors of sentence outcomes (Kautt, 2002). This is to be expected as they represent the type of factors that the United States Sentencing Commission has said should matter in determining sentences. Not surprisingly, jurisdictional variation of the effects of these factors has also been established. For example, Hartley and Armendariz’s (2011) study detected evidence of variance in the effects of presumptive sentences across districts. While the presumptive sentence resulted in shorter sentences for citizens and noncitizens in both Arizona and Texas West, in California, the presumptive sentence produced longer sentences for citizens and noncitizens. The awarding of sentencing departures has also been found to vary across jurisdictions (Bibas, 2005; Hartley, 2008). Bibas (2005), for instance, explains that in some districts, fewer than 4% of defendants receive substantial assistance departures, whereas, in other districts, 40% or more of defendants receive such departures. Using 2003 federal sentencing data of drug traffickers, Hartley (2008) found that while only 10% of defendants in Texas and New Mexico were the recipients of a downward departure, a considerably higher percentage of defendants in Arizona (35%) and the southern district of California (52%) received that type of departure.
Type of offense is another legally relevant factor that is known to influence sentence outcome and is not immune from jurisdictional variation. Specifically, Hartley (2008) found that while defendants sentenced for crack cocaine offenses in Texas received sentences that were 10 months longer than those convicted for marijuana offenses, defendants in Arizona were sentenced 22 months longer, and defendants sentenced in southern California were sentenced 27 months longer. In a later study, Hartley and Armendariz (2011) analyzed the length of sentence decisions of drug offenders convicted in five Southern border districts (Southern California, Arizona, New Mexico, Western Texas, and Southern Texas). They found that although drug type had no effect in New Mexico, it did influence the average sentence length in the other districts. Specifically, noncitizens sentenced for cocaine and methamphetamine offenses in the southern California district received longer sentences than those convicted of marijuana offenses. However, in Arizona, only defendants convicted of cocaine offenses receive longer sentences than those convicted of marijuana offenses. But, unlike California, the longer sentences applied to both citizens and noncitizens. Texas West revealed more nuances in that citizens convicted of cocaine offenses received shorter sentences than those convicted of marijuana offenses, while noncitizens received longer sentences. Similarly, Lynch and Omori (2014) analyzed USSC, §2D1 drug trafficking offenses from 1993-2009 and found moderate variation in practices across districts. Finding that defendants adjudicated in the West and Northeast were sentenced more leniently than defendants adjudicated in the South led them to conclude that “…while the districts that make up the federal system operate under the same formal law, the system as a whole should not be treated as a single, unified entity that responds lockstep to policy mandates” (Lynch & Omori, 2014, p. 438). Collectively, the findings and assertions of Lynch and Omori (2014) imply that despite the expected uniformity of federal sentencing, the local contours of the court community can and do influence the sentencing of federal defendants.
The Influence of Extra-Legal Factors
With respect to extra-legal factors, the most widely examined are those relating to the race/ethnicity of the defendant. The results of these studies are perhaps the most confounding with some finding no discernable differences (Feldmeyer & Ulmer, 2011; Wu & D’Angelo, 2014), while others found harsher sentences for minorities (Holland & Prohaska, 2021; King & Light, 2019). There is some evidence suggesting that the nuances of the findings may partially be due to racial/ethnic differences in sentencing outcomes that fluctuated over the years. For example, King and Light’s (2019) analysis of 1992 to 2016 data revealed that the sentence length gap in differences between Blacks and Whites was stable in 2004 but increased after 2010. In contrast, Light (2022) used data from 2009 to 2018 to analyze Black-White length of sentence differences. His observation of a reduction in the racial/ethnic gap from 2.2 months in 2009 to 1.3 months in 2018, led him to conclude there is a declining significance of race. Holmes and Feldmeyer (2023) expanded the years of analysis by analyzing 22 years (1998-2019) of data. Their anaysis revealed that between 2007 to 2019, inclusively, the Black-White sentence gap narrowed, and was heading to some measure of racial/ethnic equality during the early 2000s. However, in the latter years, they have noticed a reverse indicating a rewidening of the gap.
Varying effects of race/ethnicity have also been found in studies that incorporated controls for the geographical location of the court (Hartley, 2008; Hartley & Armendariz, 2011). While ethnicity had no impact on sentence length in any of Hartley’s (2008) four districts (e.g., Arizona, New Mexico, Southern California, and Southern Texas), race was observed to have some influence, but only in Arizona and Southern California (no effects were found in Southern Texas and New Mexico). Importantly, the effects of race did not operate equally across those two districts. Rather, while African Americans in Arizona received shorter sentences (-11.2 months) than whites, the reverse was the case in California, where African Americans were recipients of longer sentences (15.28 months).
The sex of the offender is another recurrent finding in the sentencing literature with estimates of the influence of sex on sentencing outcomes generally indicating that women are treated more leniently than their male counterparts and that the effects can vary across districts (Hartley, 2008; Holland & Prohaska, 2021). Holland and Prohaska (2021), for example, found that women who were sentenced in border and southern districts received longer sentences than males. In Hartley’s (2008) study, females who were sentenced in Arizona received sentences that were almost seven months (-6.74) shorter than men. However, females in the southern district of Texas received sentences that were about 10% longer than the sentences given to males. In a later study, Hartley and Armendariz (2011) observed that being female only mattered in California and, even so, only for females who were U.S. citizens; on average, female citizens received sentences five months shorter than men.
Anti-immigrant sentiments and negative stereotypes of Hispanics as drug traffickers have led to inquiries of the linkages between defendants’ citizenship status and sentencing outcomes. While some studies have found that citizenship status has no effects once legally relevant factors are taken into consideration (Everett & Wojtkiewicz, 2002; Kautt & Spohn, 2002), others have found citizenship status does play a role in sentencing outcomes (Kozey & Hardy, 2019; Light, Massoglia, & King, 2014; Valadez & Wang, 2017) and is linked to several factors, such as the legal status of the defendant (e.g., legal resident versus illegal resident) (Ulmer & Parker, 2020), the defendant’s country of citizenship (Iles, 2009) and the district where the case was adjudicated (Hartley, 2008; Hartley & Armendariz, 2011). Hartley and Armendariz (2011), for example, found that except for the district of Southern California, the effects of citizenship varied significantly across the remaining districts, though they conceded that the relationship was seemingly moderated by the application of sentencing departure.
Additional characteristics of the offender, such as age (Ulmer et al., 2016) and educational attainment (Franklin & Henry, 2020) have also been found to influence sentence outcomes, and like other factors, have produced mixed findings across jurisdictions. For example, while age emerged as a statistically significant factor in the Fifth Circuit of Pasko’s (2002) study, no main effects emerged in any of Hartley’s (2008) four districts. Turning to educational attainment, Arizona was the only district in Hartley’s (2008) study to show statistical significance for education; those with some college education received sentences that were slightly over 6 months longer than the sentences imposed on those without a high school degree.
The Impact of Case Processing Factors
Case processing factors, such as case disposition (i.e., plea vs. trial) and pretrial detention status, have been found to influence sentence outcome and can contribute to jurisdictional variation (St. Louis, 2023; White, 2011). Fast-track programs, for example, have their roots in border districts and are considered a phenomenon largely resigned to those areas (White, 2011). Due to the large volume of illegal immigration and drug-trafficking offenses, jurisdictions on the Southern border tend to rely heavily on fast-track programs. Fast-tract programs allow defendants to truncate the steps in criminal proceedings by, among other things, pleading guilty as early as the initial appearance, and waiving the presentence report to pave the way for immediate sentencing (Bibas, 2005). As a result, fast-track programs are likely to result in jurisdictional variation, where those adjudicated in border districts are more likely to have their cases disposed of via plea agreement than those adjudicated elsewhere. This is significant because defendants whose cases are disposed via plea agreements are sentenced more leniently than defendants who went to trial (Lehmann, 2023). With regard to the defendants’ pretrial detention status, studies generally find that being detained prior to trial increases the odds of being found guilty (Lerman et al., 2022) and if incarcerated, those that are detained are more likely to receive longer sentences than those released prior to trial (Franklin & Henry, 2020). There is also evidence that the effect of pretrial detention varies across districts (Hartley, 2008; Hartley & Armendariz, 2011). Hartley and Armendariz (2011), for instance, found that while pretrial detention had no effects in Southern California, New Mexico, and Texas South, it significantly increased the length of sentence by 13 months for defendants in Arizona but only by roughly 3 months for defendants in Texas West.
Theoretical Framework and Research Hypothesis
The focal concerns perspective, as articulated by Steffensmeier et al. (1998), provided a useful tool for understanding how judges make sentencing decisions. The perspective is advantageous for putting the varied and sometimes contradictory findings on the role extra-legal factors play in sentencing outcomes into a coherent framework (Kurlychek & Johnson, 2004). According to this perspective, judges’ sentencing decisions are based on three focal concerns: (1) the blameworthiness of the offender, (2) a need to protect the community, and (3) the practical constraints and consequences of the decision. The first concern, blameworthiness, is centered on the retributive or ‘just dessert’ philosophy of punishment and is commonly associated with legally relevant factors such as the type of offense, the defendant’s role in the offense, and the severity of the offense. Incorporated in the presumptive sentence of the federal sentencing guidelines, the more blameworthy the defendant and the more extensive their criminal history, the harsher the sentence. Concerns over the blameworthiness may also be linked to legally irrelevant factors such as court locality. Given that the Southern border has been heavily criticized and blamed for the proliferation of illicit drugs into the United States (Kent, 2010; Zemek, 2022), the following hypothesis is formed:
Hypothesis 1: Defendants sentenced along the Southern border will be subject to longer sentences than defendants adjudicated in courts away from the border.
The second focal concern, the protection of the community, refers to the need to keep the community safe and is based on the incapacitation and deterrence philosophies of punishment. Although concerns over protecting the community require predicting the offenders’ propensity to commit future crimes, the reality is that judges rarely have sufficient knowledge of the offender’s criminal history to make a well-informed decision (Steffensmeier et al., 1998); especially for noncitizens (see Albonetti (1991) and Albonetti and Baller (2010) for a discussion of the uncertainty avoidance/causal attribution perspective). As a result, the characteristics of the offenders may be used as a proxy for dangerousness. To this end, stereotypes of minorities, such as portrayals of Latino males as “gun-wielding drug-selling gang banger unless proven otherwise” (Portillos, 1998, p. 156) stigmatize them as a problem population and may subsequently subject them to harsher treatment. Tonry (2019), however, cautions that “[i]ncapacitation resulting from predictions of dangerousness diminishes the liberty and autonomy of knowable individual people, disproportionately poor and disadvantaged ones, in exchange of predicted prevention of crimes to hypothetical future victims” (p. 445). Further, recent studies (e.g., King & Light, 2019) suggest racial and ethnic sentencing disparities continue to decline. Accordingly, we expect the following:
Hypothesis 2a: The relationship between race and sentence length will be null, as Black and White defendants will receive sentences that are not statistically significantly different from one another, net of controls.
Hypothesis 2b: The relationship between ethnicity and sentence length will be null, as Hispanic and White defendants will receive sentences that are not statistically significantly different from one another, net of controls.
The third focal concern emphasizes the efficiency of the system and involves judicial attentiveness to organizational, individual, and/or situational factors (Steffensmeier et al., 1998). Examples of organizational factors include prison overcrowding and the availability of correctional or diversion programs (e.g., drug programs, mental health facilities). One example of an individual/situational concern for the courts is the consequence of imposing long sentences on defendants who are immigrants. Taken together, limited prison space combined with the probability of deportation may influence judges’ decision to award shorter sentences to drug offenders who are immigrants, particularly those who are undocumented. These concerns might be increasingly prescient along the Southern border. Based on this possibility, the fourth hypothesis is as follows:
Hypothesis 3a: Net of controls, citizens of the United States will receive sentences that are longer than undocumented immigrants in the Southern District.
Hypothesis 3b: Net of controls, citizens of the United States will receive sentences that are longer than legal residents in the Southern District.
The Current Study
The research herein is designed to provide a true test of the effects of “border justice.” As discussed in the introduction, the state of California provides a unique opportunity for investigating whether sentencing outcomes vary depending on the district of adjudication (e.g., border district versus a non-border district). Among other things, California provides an appropriate setting in the sense that it is the only state with an entire federal district situated on the shared border between Mexico and the United States. This is significant given that despite the expected uniformity in sentencing, Ulmer’s social world of sentencing, the review of the previous literature, and the focal concerns of judicial decision-making suggest that sentencing outcomes can vary depending on the location of the court. We explore this possibility through comparisons of sentences handed down to federal drug trafficking defendants in California across models disaggregated by district.
Data used to test the research hypotheses were obtained from the United States Sentencing Commission (USSC) Monitoring of Federal Criminal Sentences data series. The chosen dataset covers defendants sentenced between October 1, 2015, to September 30, 2019, and consists of over 480 variables pertaining to the characteristics of the offender, case, and disposition. Cases were screened using the primary guideline to select only those instances involving defendants sentenced in California for USSC §2D1.1 offenses (unlawful manufacturing, importing, exporting, or trafficking [including possession with intent to commit these offenses], attempt or conspiracy) (n = 9,264). Unlike the traditional offense type variable, which represents the statute used to convict the defendant, the primary guideline accounts for all guideline computations, including the defendant’s role in the offense (i.e., relevant conduct) (Syckes, n.d.). If a case involves the application of just one guideline, then that guideline becomes the primary guideline. If, however, multiple guidelines were applied, the guideline with the highest adjusted offense level becomes the primary guideline (Kyckelhahn, n.d.; Syckes, n.d.). Preliminary review of our data showed that approximately 98% of our selected guideline cases only had one guideline computation.
We focused on drug-related offenses for three primary reasons. First, there are ongoing concerns over the proliferation of drugs in the United States. Contentious debates on how to address drug trafficking along the southern border and efforts to reduce drug overdoses have resulted in enhanced law enforcement responses. Indeed, in three of the five years of data used in the current study, drugs made up the largest category of federal offenses; over 30 percent of federal cases during 2015, 2016, and 2017 were drug related. In the remaining two years, 2018 and 2019, drugs are second only to immigration offenses. Additionally, attention to drug cases not only addresses a pressing issue in society, but the large volume of drug offenses also ensures that there will be sufficient cases for analysis. Second, if unwarranted disparities exist, scholars have speculated that they are more likely to be visible in the prosecution and sentencing of drug offenders (Kautt & Spohn, 2002; Warren et al., 2012). This may partially be due to the discretionary decisions made to circumvent mandatory statutes. Therefore, we chose drug trafficking cases because drug-related offenses are more likely than non-drug offenses to be subject to mandatory minimum penalties. In 2017, for example, of the 22% of cases that carried a mandatory minimum, almost two-thirds (67.8%) of those cases were drug-related. Lastly, drug offenses are chosen for their uniqueness in relation to other offenses. They are the only federal offense where the safety valve provision can be applied. The application of the safety valve allows judges to sentence a defendant below the required mandatory minimum penalty if the defendant satisfies a set of criteria (e.g., criminal history must be at a minimal; no violence was used in the commission of the act including the possession of a firearm; the offense did not result in death or serious bodily injury; the defendant was not a leader, organizer, manager, or supervisor of others in the offense, and the defendant provided substantive assistance to the prosecutor). Additional factors that contribute to the uniqueness of drug offenses include quantity-dominated guidelines, and sentencing departures, including the possibility of sentence reduction due to the relevant conduct standard (Schulhofer, 1992).
The final sample includes 7,022 cases. A total of 1,593 cases were removed because they were missing information for the dependent variable or at least one independent variable. An additional 273 cases were removed because they did not specify the race or immigration status of the defendant. Finally, 381 cases were removed because of issues with variability. Specifically, 12 cases had sentencing departures that were ‘above range,’ and 369 cases involved crack cocaine or ‘other drugs.’ In these instances, these measures would have acted more as constants than variables. For example, fewer than 2 percent of defendants in the entire state were sentenced for crack cocaine, including 0 percent in the Southern District. Finally, all cases in this sample resulted from a plea agreement.
Sentencing decisions involve a two-step process. The first is the decision of whether to incarcerate the offender. Once the decision has been made to incarcerate, the second decision relates to the length of that sentence. Since 97 percent of defendants in our sample received a prison sentence, the current study is limited to an analysis of sentence length. It is a continuous measure describing the number of months each defendant was sentenced to prison. As can be seen in Table 1, there is considerable variation in sentence length between districts. In fact, the average sentence length is at least 2 years shorter in the Southern District in comparison to all other districts. Further, counter to Hypothesis 1, the application of t-tests for independent samples reveals that the average sentence length of 40.64 months in the Southern District was significantly shorter than the average sentences awarded in the Central (t = -23.313, p < .001), Eastern (t = -22.467, p < .001), and Northern (t = -13.602, p < .001) districts.
Primary Explanatory Variables
In accordance with the focal concerns perspective advanced by Steffensmeier et al. (1998), defendant race, ethnicity, and citizenship status serve as our primary independent variables. Defendant race and ethnicity are operationalized through three dichotomized variables indicating whether the defendant was Hispanic, Black, or White (reference category). In each sentencing district, as well as the statewide model, Hispanic persons comprised the majority of defendants. Whites were the second largest defendant group in all but the Northern District. Defendant citizenship status is also operationalized through multiple binary variables indicating if the defendant was a U.S. citizen, undocumented immigrant, or legal resident, with ‘U.S. citizen’ serving as the reference category. Although U.S. citizens comprised a majority of defendants across all models, large proportions of undocumented immigrants and legal residents are observed.
Beyond our primary explanatory variables, we include several control measures that prior works have linked with sentencing outcomes. In terms of defendant characteristics, sex was measured using a binary indicator of whether the defendant was female (1) or male (0), while age was operationalized as a continuous measure in years. Unsurprisingly, females comprised a minority of defendants, while the average age ranged from 32.55 to 37.71 years. Education was measured by 4 binary measures indicating whether the defendant earned less than a high school education, graduated from high school, completed some college, or graduated with at least a bachelor’s degree. In each district, a plurality or majority of defendants had failed to graduate from high school.
In terms of case processing, we control for pretrial detention (1 = yes), with most defendants in each district remaining in custody before trial. There is evidence that defendants who choose to go to trial face greater odds of harsher sentences than defendants who accept a plea (e.g., Albonetti, 2002). As noted above, however, more than ninety-nine percent of the sentences in the present study, however, were the result of plea agreements. Given that, under these circumstances, case disposition (e.g., plea vs. trial) acts as a constant rather than a variable, it is excluded from our analysis.
Legally relevant controls included the presumptive sentence, number of counts of conviction, number of drugs, downward departure, government-sponsored departure, and drug type. The average presumptive sentence for defendants in our sample ranged from 92.65 to 122.52 months, while the average number of drugs varied from 1.20 to 1.57. The use of dichotomous measures of sentencing departures indicates that the use of government-sponsored departures for ‘substantial assistance’ varied widely between districts, with a low of 38% in the Northern District to a high of 90% in the Southern District. The use of downward departures also varied, with it being used in only 7% of cases in the Southern District but 39% in the Northern District. Disaggregation by drug type reveals that an average of 63% to 72% of the defendants in the sentence districts were sentenced for methamphetamine (reference category), 4% to 16% for cocaine, 5% to 11% for heroin, and 4% to 28% for marijuana.
Descriptive Statistics California Federal Drug Trafficking Defendants
|(n = 7022)||(n = 5220)||(n = 779)||(n=710)||(n=313)|
|Sentence Length (Mths)||48.7||40.64||73.44||72.58||67.38|
|U.S. Citizen (ref.)||64.2||64.9||67.1||57.5||60.4|
|Less than HS (ref)||48.0||47.0||53.0||52.0||47.0|
|Pre-Trial Detention (1=Custody)||81.6||82.7||79.5||80.4||70.6|
|Within Range (ref.)||9.0||3.0||23.0||38.0||23.0|
|Counts of Conviction||1.25||1.2||1.37||1.29||1.57|
|Number of Drugs||1.27||1.26||1.2||1.41||1.35|
*Standard deviations in parentheses
Given that our dependent variable is operationalized as a count in months, we use a Poisson-based estimator to examine variation in sentence length across our sample of defendants in each sentencing district, as well as within the entire state of California (Osgood, 2000). In a standard Poisson model, equidispersion between the mean and variance of the outcome measure is assumed. Our descriptive analysis, however, indicates that the outcome measure (sentence length) is over-dispersed, suggesting the need for a negative binomial estimator that allows for the introduction of an error term. Post-Poisson goodness of fit tests (Long & Freese, 2006) confirm this assertion. Furthermore, we use robust standard errors to allay concerns of potential non-independence in the data. To explore potential differential effects of our primary independent variables between models, we use the method of testing inequality of coefficients developed by Clogg et al. (1995).
Results of the negative binomial analysis assessing variation in sentence length for drug trafficking offenses are displayed in Table 2. Hypotheses 2a and 2b expressed the expectation that Black and Hispanic defendants in drug trafficking cases would receive sentences that were, on average, not significantly different than their White counterparts. These hypotheses were grounded in the findings reported by recent studies suggesting a closing of long-standing race-based disparities in sentence length (e.g., King & Light, 2019). The results of our analyses are largely supportive of this expectation. Net of controls, average sentences received by Black defendants are not significantly different from those received by White defendants in the South, Central, or Northern districts, or in the overall model. Similarly, there was no observed statistical difference between Hispanic and White defendants across any of the models, net of controls. In contrast, Black defendants in the Eastern District received sentences that were, on average, 17.3% shorter in comparison to Whites. Application of equality of coefficients tests reveals statistically significant differences across 3 of 4 model comparisons, with the inverse effect of race being stronger in the Eastern District in comparison to the Southern and Central districts, as well as the aggregate California model.
Hypotheses 3a and 3b stated our expectation that net of controls, U.S. citizens would receive sentences that were, on average, longer than those received by undocumented immigrants and legal residents, but that these effects would be limited to the Southern District. This expectation was grounded in the focal concern emphasizing the efficiency of the criminal justice system (Steffensmeier et al., 1998). Specifically, judges’ sentencing decisions might be influenced by such factors as case volume and limited prison space combined with the immigration status of defendants, particularly undocumented persons. Consistent with these expectations, defendants in the Southern District who were undocumented immigrants received sentences that were, on average, 5% shorter than those given to U.S. citizens. Similarly, legal residents sentenced in the Southern District received sentences that were, on average, 10.9% shorter in comparison to U.S. citizens (13.3% shorter in the overall model). These effects are not observed in the Central, Eastern, or Northern districts, though differences in the effects of undocumented immigration status were only significant in the comparison between the Southern District and overall model.
Beyond our primary explanatory variables, several of our controls are correlated with sentence length at a statistically significant level. Although many of these effects are consistent, others vary between districts in terms of statistical significance. In terms of extra-legal factors, female defendants received sentences that were, on average, 22.2% shorter in comparison to males in the overall model, 17.7% shorter in the Southern District, 39.9% shorter in the Central District, 24.7% shorter in the Eastern District, and 36.4% shorter in the Northern District. The statistical significance of age and education are less consistent. Each standard deviation increase in defendant age corresponds with average increases in sentence length in the overall California model (8.3%) and Southern District (8.9%) but is not correlated with sentence length in the remaining districts. In comparison to those with less than a high school education, high school graduates received sentences that were, on average, 4.6% longer in the overall California model and 5.6% longer in the Southern District, while those with some college education (3.2%) and college graduates (7.6%) received shorter average sentences in the overall model.
Our analysis also revealed statistically significant relationships between several legally relevant and case processing controls and sentence length. Pretrial detention is associated with increased sentence length across each of our models, with defendants who were detained pretrial receiving sentences that were, on average, 41.4% longer in the overall model, 37.1% longer in the Southern District, 82.7% longer in the Central District, 62.2% longer in the Eastern District, and 72.2% longer in the Northern District. Similarly, each standard deviation increase in presumptive sentence corresponds with increased average sentence length in the overall model (322.2%), Southern District (245.8%), Eastern District (74.1%), and Northern District (86.8%), but does not correlate with changes in sentence length in the Central District.
In contrast, those who benefitted from downward departures and government sponsored departures in exchange for substantial assistance tended to receive significantly shorter sentences in comparison to those whose sentences fell within range. Specifically, defendants who received a downward departure received sentences that were, on average, 32.3% shorter in the overall model, 37.1% shorter in the Southern District, 26.1% shorter in the Central District, 26.7% shorter in the Eastern District, and 33% shorter in the Northern District. With the exception of the Central District, these effects were mirrored through government sponsored departures that resulted in average sentences that were 45.7% shorter in the overall model, 47.4% shorter in the Southern District, 31.1% shorter in the Eastern District, and 41.8% shorter in the Northern District.
The influence of the number of charges and number of drugs was comparatively limited. Each unit increase in the number of charges corresponded with an average increase in sentence length of 6.9% in the overall model, a 5.9% increase in the Eastern District, and an 11.4% increase in the Northern District. Each unit increase in the number of drugs corresponded with an average increase in sentence length of 3.6% in the overall model and a 4.9% increase in the Southern District, but these effects did not extend to the Central, Eastern, or Northern Districts of California.
Finally, the type of drugs involved in the trafficking conviction tends to correlate with sentence length. In comparison to defendants sentenced in methamphetamine trafficking cases, those convicted of trafficking cocaine received sentences that were, on average, 13.5% shorter in the overall model, 8.9% shorter in the Southern District, and 29.2% shorter in the North District. Similarly, sentences related to heroin convictions were an average of 16.6% shorter in the overall model, 15.5% shorter in the Southern District, and 31.4% shorter in the Central District in comparison to sentences related to methamphetamine convictions. The greatest and most consistent disparities are observed in comparisons of marijuana to methamphetamine. In cases involving marijuana trafficking, sentences were an average of 43.4% shorter in the overall model, 42.3% shorter in the Southern District, 54% shorter in the Central District, 33.3% shorter in the Eastern District, and 61.9% shorter in the Northern District in comparison to methamphetamine cases.
Negative Binomial Regression Analysis of Sentence Length
|(n = 7022)||(n = 5220)||(n = 779)||(n=710)||(n=313)|
|Number of Counts||.067***||.036||.123||.057*||.108**|
|Number of Drugs||.035***||.048***||.021||.033||-.025|
*p < .05; **p < .01; ***p < .001
robust standard errors in parentheses
Discussion and Conclusions
The primary purpose of the study was to explore the effects of what Hartley and Armendariz (2011) refer to as “border justice.” Using federal sentencing data from California, a state that provides a one-of-a-kind setting for examining sentencing variation between border districts and non-border districts, several noteworthy findings emerge. First, defendants sentenced in the border district of Southern California were subject to significantly shorter sentences than defendants sentenced in the non-border districts of Eastern, Northern, and Central California. Although counter to our hypothesis, this finding is not entirely surprising considering previous research that has identified responses to local crimes, including type of offense and caseloads as potential sources of sentencing variance (Bibas, 2005; Farrell & Ward, 2011; Hartley, 2008; Pasko, 2002; Ulmer, 2005; White, 2011; Wu & D’Angelo, 2014; see also Freed, 2003 notes from a symposium on the topic). For example, given the Southern District’s proximity to the Mexican border, which has been characterized as a chief entry zone for the smuggling of illicit drugs into the United States (Perkins & Placido, 2010), it is not surprising that the vast majority (74.3%) of the drug trafficking cases in our sample are located in the Southern District as opposed to the other federal districts in the state. In short, awarding shorter sentences in the Southern District may be a mechanism for processing the large volume of cases that come through the district. This perspective appears in line with the work of Farrell and Ward (2011), who found that districts with high caseloads imposed shorter sentences than districts with low caseloads.
Alternatively, the shorter sentences bestowed to defendants in the Southern District may be related to sentencing departures. Specifically, our data show that an overwhelming 90.0% of defendants sentenced in the Southern District are recipients of substantial assistance departures, compared to 38% sentenced in the North, 39% sentenced in the East, and 42% sentenced in the Central District. This finding is consistent with previous studies (e.g., Bibas, 2005; Johnson et al., 2008; Kautt, 2002; Wu & Spohn, 2010), which also found evidence of wide disparity in the awarding of substantial assistance departures. Bibas (2005), for example, found that the conferring of substantial assistance ranged from fewer than 4% in some districts to over 40% in others. Similarly, Hartley (2008) reported that 52% of defendants in the Southern California district in his study received substantial assistance departures compared to just 10% in the Texas and New Mexico districts and 35% in the Arizona district. Hence, we conclude that, net of controls for extra-legal and legally relevant factors, and despite the expectation of uniformity in federal sentencing, the awarding of substantial assistance departures can and do vary across jurisdictions.
Another key finding of our study is the lack of variation in sentencing attributable to race or ethnicity. To be clear, our finding is inconsistent with others (Light, 2014; Topaz et al., 2023) who have found Hispanics are the racial/ethnic group more likely to be subject to adverse punishment. Although our study did not include a control for the racial/ethnic percentage in the district, we concur with the work of others (e.g., Feldmeyer & Ulmer, 2011; Holland & Prohaska, 2021; Kozey & Hardy, 2019) who found that the size of the racial/ethnic population in the district can influence sentencing outcomes. We note, for example, that according to the 2021 U.S. Census Bureau (n.d.) estimates, 35.2% of the California state population identified as White, 40% identified as Hispanic, and just 6.5% identified as Black. However, our findings are in line with the recent work of King and Light (2019), which suggested significant reductions in sentencing disparities based on race and ethnicity.
Third, our results show undocumented immigrants and legal residents tend to receive shorter sentences than U.S. citizens, but these effects are limited to the Southern District along the Mexican border. This seems to suggest that citizenship status does matter, which ties into the theoretical framework of the study. For example, judges are expected to represent the community they serve. This expectation may propel them to embrace, for instance, the crime-immigration nexus that permeates society’s view of immigrants and crime. Given that a focal concern of judicial decision-making is the protection of the community, judges may view undocumented immigrants as more dangerous than legal and U.S. citizens and, thus, more deserving of harsher sentences. At the same time, however, the focal concern pertaining to practical constraints and consequences of judges’ decisions predicts that judges will award lenient sentences to immigrants with the expectation that these “dangerous” defendants will be quickly deported. Thus, they would appear to not only remove these persons from U.S. society but also to do so expediently in an effort to relieve pressure on overcrowded correctional facilities. Importantly, these results held after controlling for legally relevant factors, including sentencing departures, presumptive sentence, counts of conviction, and drug type.
In closing, based on our findings, we conclude that the phenomenon of “border justice” does indeed exist. The current study finds evidence indicating that the sentencing practices and outcomes in the border district of Southern California vary substantially from the non-border districts of Eastern, Northern, and Central California. Specifically, defendants in the Southern district received significantly shorter sentences and benefitted from a greater percentage of the substantial assistance departures awarded in the state. While we conclude that factors such as citizenship status and substantial assistance departures contributed to sentencing variance in the Southern District, we concede that additional research is needed to disentangle the effects of community-level factors such as caseload. It is further argued that additional studies are needed to explore what role fast-track programs may be playing in the reduction of sentences in border districts. While these programs are seen as useful tools to accommodate heavy caseloads in border districts, they have been criticized as a prosecutorial tool for “engaging in wholesale legislative policymaking, supplanting Congress’s dominant role” (Bibas, 2005, p. 147). To illustrate his point, Bibas (2005) explained that the Southern District of Florida adjudicates more cases than all five border districts combined and does so without the use of fast-track programs to process their high volume of immigration and drug-trafficking cases. Therefore, it becomes prudent to more closely investigate whether fast-track programs are partially responsible for the advantage in sentencing outcomes that border district defendants receive.
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Areas: Criminal Justice
Categories: Criminal Justice
Tagged: border justice, punishment, sentencing, sentencing departures, sentencing disparities