Law on the Books and Law in Action Don't Always Align

June 19, 2014

This month, Life of the Law is featuring the work of scholars published in the June 2014 issue of the Law and Society Reviewwhich has partnered with LOTL to make the longer versions of these articles free for 30 days (through July 18th) for anyone who accesses them by clicking here.

The federal sentencing policies for drug trafficking have been among the most well-known and controversial criminal justice issues since the 1980s, mandating very lengthy prison terms, especially for those convicted of crack cocaine offenses. In United States vs. Booker (2005), the Supreme Court rendered the federal Sentencing Guidelines advisory rather than mandatory, giving judges more leeway to sentence below the term prescribed by the Guidelines. Mandatory minimum statutes, however, remained in full force, so in many drug cases, defendants still face these lengthy terms. The multifarious, in-flux quality of these federal laws struck us as worth examining since they have the potential to be understood and deployed in very different ways across the country.

In our article, “Legal change and sentencing norms in the wake of Booker: The impact of time and place on drug trafficking cases in federal court,” we tackle a classic law and society problem: how formal law gets reshaped in practice. In this case, we examined how changes to federal sentencing law and policy have impacted drug trafficking case processes and outcomes.

As we point out in our piece, there is no scholarly dispute that “law-on-the-books” and “law-in-action” diverge, sometimes considerably.  Here, though, we aimed to develop a more robust account of how both time and the particularities of place might predict the patterns of divergence. We examined sentencing processes and outcomes for 89 U.S. federal judicial districts over a 17-year period. We asked three questions. First, do districts maintain stability in drug case sentencing outcomes over time, despite formal legal change? Are there differences between districts in how they respond to legal change, and if so, what predicts those differences? Do districts with high rates of mandatory minimum-eligible cases behave differently than those with low rates?

Our analyses revealed several interesting insights about how federal courts have handled drug cases over time. First, across the country, we observed consistent downward pressure on sentences, indicating that those who actually implement the harsh drug laws work to mitigate their punitive nature, no matter the formal legal dictates. The tendency to develop what we called “well entrenched, policy resistant norms,” standards of what was fair regardless of policy, was greater in districts with both more criminal cases in general and more drug cases specifically. We also found that different parts of the country treated similar drug cases differently, no matter how restrictive the sentencing period. Districts in the South were somewhat more punitive than those in the Northeast and West.

We found strong evidence that power imbalance between court actors—specifically when prosecutors have more discretionary power than judges—gave rise to inequality in case outcomes. Districts where prosecutors filed a high proportion of mandatory minimum-eligible cases produced racial and geographic disparities, whereas the low-mandatory minimum districts did not.  Black defendants comprised nearly 40% of cases in high mandatory minimum districts but just 23% in low mandatory minimum districts, so were especially subject to those punitive laws. Their sentences were also longer than otherwise similar defendants in the high-mandatory minimum districts.

Our findings send a cautionary message about the processes and prospects for legal change, especially that aimed at reducing the reliance on criminal punishment. On the one hand, we did find that there has been consistent resistance to maximally applying the most punitive federal drug laws even at the height of the war on drugs. Nonetheless, we found that federal district courts, as living organizations, take on lives of their own that resist top-down reform to maintain business-as-usual practices. So if and when Congress commits to a retrenchment of the “drug war,” we should expect that district-level courts will respond in diverse, locally specific ways to stave off diminution.


Mona Lynch is Professor of Criminology, Law and Society and co-director of the Center in Law, Society and Culture at the University of California, Irvine. 

Marisa Omori is a Ph.D. candidate in the Department of Criminology, Law & Society at the University of California, Irvine. 

photo credit: Jens Finke – fotografie grafik verlag via photopin cc