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First Page

159

Keywords

white-collar crime; transnational enforcement; bail; pretrial detention; sentencing; Bureau of Prisons; Office of International Affairs; U.S. Sentencing Guidelines; Bail Reform Act; extradition; electronic monitoring; supervised release; variance; citizenship; home confinement; International Prisoner Transfer Program

Abstract

Transnational white-collar enforcement has expanded steadily, even amid recent Department of Justice rhetoric favoring restraint. Yet the enforcement apparatus imposes markedly different—and more costly—consequences on noncitizen defendants than on similarly situated U.S. citizens. Noncitizens are more likely to be detained pretrial and more likely to serve longer and harsher custodial terms because they are excluded from sentence-reducing mechanisms, housed in more restrictive facilities, and face an additional layer of postsentence immigration detention. These structural features convert nominally equivalent sentences into more punitive sanctions while increasing burdens on courts, prisons, the immigration system, and taxpayers.

This Essay argues that courts, as the institutions best positioned to account for these disparities in individual cases, should use their discretion to mitigate citizenship-based punishment differentials. At the pretrial stage, courts should resist treating lack of citizenship as a proxy for flight risk and should favor stringent conditions of release over detention in white-collar cases. At sentencing, courts should recognize how collateral consequences tied to citizenship distort custodial punishment and consider nonincarceratory sentences as proportionate alternatives for eligible noncitizen white-collar offenders. Doing so not only promotes parity and sentencing integrity but also conserves public resources by reducing unnecessary detention, incarceration, and immigration custody.

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