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The rising number of prosecutions of people with minor criminal histories is in part the
product of a self-perpetuating cycle: once convicted of illegal entry, an immigrant who
attempts to reenter the US is more likely to be prosecuted for illegal reentry because he or
she now has a criminal record. Prior convictions for illegal entry offenses alone could be
sufficient to put a defendant in criminal history categories I, II, or III. Although we do not
have access to the criminal records of these defendants, our documentation of specific
cases (as discussed in greater detail in the next section) indicates that, in many cases, the
prior convictions are illegal entry and reentry convictions.
Average sentences for illegal entry offenses have also decreased significantly over the past
10 years. In 2002, the mean sentence for illegal entry offenses was 30 months, and the
median sentence was 24 months. 50 In 2012, the mean sentence was 19 months, and the
median sentence was 13 months. 51 This is in large part due to the use of “Fast-Track” plea
offers by the US government, in which defendants receive automatic reductions in
calculations of offense level in exchange for waiving certain rights and agreeing to faster
conclusion of their cases. 52 But if these Fast-Track plea offers result in sentences the
government considers appropriate punishment, the decrease in sentences may also
indicate the US government views these defendants as less dangerous.
50 US Sentencing Commission, 2002 Annual Sourcebook of Federal Sentencing Statistics, “Table 50: Mean and Median
Sentences of Offenders Sentenced Under Immigration Guidelines by Departure Status,”
http://www.ussc.gov/Data_and_Statistics/Annual_Reports_and_Sourcebooks/2002/Table50.pdf (accessed April 25, 2013).
51 Ibid.
52 US Sentencing Commission, “Report on the Continuing Impact of US v. Booker on Federal Sentencing,” Part C: Immigration
Offenses, 2012,
http://www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Booker_Reports/2012_Booker
/Part_C8_Immigration_Offenses.pdf (accessed April 25, 2013), p. 118.
31 HUMAN RIGHTS WATCH | MAY 2013