Legal Change and Sentencing Norms in the Wake of Booker: The Impact of Time and Place on Drug Trafficking Cases in Federal Court

Abstract

The federal sentencing guidelines have lost some authoritative force since the U.S. Supreme Court ruled in a series of recent cases that the guidelines are advisory, rather than presumptive, in determining criminal sentences. While these court decisions represent a dramatic legal intervention, sociolegal scholarship suggests that organizational norms are likely to change slowly and less dramatically than the formal law itself. The research reported here looks specifically at the consequences of such legal transformations over time and across locale, using multilevel analysis of U.S. Sentencing Commission sentence outcome data from 1993 to 2009. Our findings suggest that districts vary considerably from each other in sentencing practices over the time period studied, and that there is relative within-district stability of outcomes within districts over time, including in response to the Supreme Court's mandates. We also find that policy change appears to influence the mechanisms by which cases are adjudicated in order to reach normative outcomes. Finally, we find that the relative district-level reliance upon mandatory minimums, which were not directly impacted by the guidelines changes, is an important factor in how drug trafficking cases are adjudicated. We conclude that local legal practices not only diverge in important ways across place, but also become entrenched over time such that top-down legal reform is largely reappropriated and absorbed into locally established practices.We would like to thank

Prosecutors as punishers: A case study of Trump-era practices

“…Applied to the case of reform in women's prisons, Carlen (2002: 116) defines carceral clawback as “the power of the prison constantly to deconstruct and successfully reconstruct the ideological conditions for its own existence.” In the context of prosecutors, we should not be surprised by the active resistance to, and reconstruction of, retrenchment efforts. Local criminal legal system actors, including prosecutors, and the organizational units in which they are embedded, are invested in their own legitimacy and power, so can be expected to both ideologically and operationally adapt to changing policies in order to maintain their size and stature (Lynch & Omori, 2014). They do so, though, in ways that respond to local norms, logics, and historical practices, so such efforts will not be uniform across locales (Lynch & Omori, 2014; Verma, 2015).…”

“…Local criminal legal system actors, including prosecutors, and the organizational units in which they are embedded, are invested in their own legitimacy and power, so can be expected to both ideologically and operationally adapt to changing policies in order to maintain their size and stature (Lynch & Omori, 2014). They do so, though, in ways that respond to local norms, logics, and historical practices, so such efforts will not be uniform across locales (Lynch & Omori, 2014; Verma, 2015). Nor will the reforms be as substantively impactful as they might look on-the-books, given the strong organizational pressure to survive and thrive (Carlen, 2002).…”

A test of the bifurcation hypothesis in prosecutorial diversion

“…These studies make it clear that policy and public discourse on criminal justice embraces a bifurcated approach to the use of incarceration, but the question remains how closely this discourse is reflected in criminal case processing. Highlighting the distinction between “law on the books” and “law in action,” penal scholars emphasize the role that individual actors play in shaping formal policies through day‐to‐day decision making (Lynch, 1998; Lynch & Omori, 2014; Rudes, 2012; Verma, 2015; Viglione et al., 2015). Interpreting directives and adapting them to fit localized contexts gives line agents ample opportunity to either strengthen or weaken the impact of new policies.…”

Behind closed doors: Considering a triphasic traumatic incarceration experience.

“…Although rational, the complexities of offenses are larger than what a guideline, algorithm, or map can sustain. Under a new rule in 2005, judges became free to assign a prison sentence outside of a recommended sentencing range so long as an explicit reason for the varying sentence is justified (Lynch & Omori, 2014). Studies on the rule describe an amalgamation of issues that include offense-level calculation bias, prosecutorial bias in deciding which cases to bring forward, human calculation errors, manipulations of the guidelines, and contrasting findings among where disparities have all occurred and make discretionary sentencing a top focal point (Bushway, Owens, & Piehl, 2012; Lynch & Omori, 2014; Ulmer, Light, & Kramer, 2011).…”

“…Under a new rule in 2005, judges became free to assign a prison sentence outside of a recommended sentencing range so long as an explicit reason for the varying sentence is justified (Lynch & Omori, 2014). Studies on the rule describe an amalgamation of issues that include offense-level calculation bias, prosecutorial bias in deciding which cases to bring forward, human calculation errors, manipulations of the guidelines, and contrasting findings among where disparities have all occurred and make discretionary sentencing a top focal point (Bushway, Owens, & Piehl, 2012; Lynch & Omori, 2014; Ulmer, Light, & Kramer, 2011). The following reasons are offered to further articulate how and why the sentencing process is such an impactful and traumatic aspect of the carceral experience often stemming from and the result of the sentencing policies discussed previously: presumed guilty before innocence and disparate sentencings.…”