The Law-Before: Legacies and Gaps in Penal Reform

Abstract

This article introduces the law-before as an analytic tool for enhancing explanations of legal reform. Based on an integration of neo-institutional law and organizations studies and punishment studies of local variation in penal policy, I define the law-before as the past organizational practices and power arrangements that precede law-on-the-books and shape present day implementation. I utilize the law-before as a heuristic to investigate the legacy effects of variations in local practice on the implementation of the prison downsizing law, AB 109, or "Realignment," in California. I analyze organizational documents produced by county practitioners in the aftermath of AB 109's enactment in 2011 as empirical windows into how actors shape the meaning of law in local settings. I find that practitioners in counties with divergent historical imprisonment patterns enact four processes (overwriting or underwriting law, selective magnification, and selective siting) to arrive at distinct interpretations of AB 109 as mandating system-wide decarceration or the relocation of incarceration from state prisons to county jails. Although my data do not speak to the ultimate implementation of AB 109, the processes revealed have practical implications for the reform goal of decarceration by rationalizing distinct resource allocations at an early stage in the implementation process.

US Criminal Justice Policy and Practice in the Twenty‐First Century: Toward the End of Mass Incarceration?

“…For example, studies examining geographic variation in the implementation of California's three strikes law show that prosecutors align their actions with their local political and cultural climate (Chen ; Bowers ; Zimring, Hawkins, and Kamin ), thereby mitigating the intended effects of that law in some counties. Verma () similarly finds that California counties’ responses to statewide policy shifts regarding the reduced use of prisons reflect what she calls “the law before,” namely, past organizational practices and (local) ideological commitments. Finally, Lynch's () analysis of drug case processing in three regionally distinct federal courts shows that, although the federal government's enactment of tough drug sentencing laws notably and uniformly enhanced prosecutors’ power to punish, prosecutors exercise this power in somewhat different ways to achieve somewhat different ends in locales characterized by diverse norms and organizational priorities.…”

“…Institutional and sociolegal studies highlight the importance of shifting our analytic focus from “the highly visible politics of large‐scale reform to the subterranean political processes that shape ground‐level policy effects” (Hacker , 243). Although legislative developments are potentially consequential, their institutional effects are powerfully shaped by the “street‐level bureaucrats” who work in criminal legal institutions (Ulmer and Johnson ; Verma ; Lynch and Omori ; Bushway and Forst ; Johnson, Ulmer, and Kramer ; Maynard‐Moody and Musheno ; Lynch ). These frontline workers tend to “emphasize the role demands that they feel are worthwhile and within a set of broad organizational constraints, and will subvert or downplay the tasks and duties deemed unimportant or somehow problematic” (Lynch , 844–45).…”

“…Although these interpretations differ, both focus on sentencing law as the primary measure of penal change. By contrast, sociolegal scholars emphasize that formal law's institutional effects are powerfully shaped by the “street‐level bureaucrats” who shape law's meaning and effects though their everyday decision making (Ulmer and Johnson ; Lynch ; Verma ; Lynch and Omori ; Bushway and Forst ; Halliday et al ; Johnson, Ulmer, and Kramer ; Maynard‐Moody and Musheno ; Silbey and Sarat ; Lipsky ). Sociolegal scholarship thus underscores the need to analyze “law in action” as well as “law on the books” when assessing the contemporary criminal justice field.…”

“…In the criminal justice context, the often-substantial gap between the "law on the books" and the "law in action" (Halliday et al 2009;Silbey and Sarat 1987;Lipsky 1980) may result from the exercise of discretion by legal actors, which is both ubiquitous and consequential throughout the criminal justice process (Lynch 2016;Lynch and Omori 2014;Stuntz 2011;Davis 2008). Research shows that local norms and organizational practices powerfully shape discretionary decision making and hence case outcomes (Ulmer and Johnson 2017;Lynch 2016;Verma 2016;Lynch and Omori 2014;Johnson, Ulmer, and Kramer 2008). For example, studies examining geographic variation in the implementation of California's three strikes law show that prosecutors align their actions with their local political and cultural climate (Chen 2014;Bowers 2001;Zimring, Hawkins, and Kamin 2001), thereby mitigating the intended effects of that law in some counties.…”

The Politics, Promise, and Peril of Criminal Justice Reform in the Context of Mass Incarceration

“…By 2015, that number was 201,000 (Kaeble & Glaze 2016, appendix table 4). Counties that previously sent a disproportionate share of people to state prison prior to 2011 are now making greater use of local jails (Verma 2015). 15 In light of this history, Schlanger (2016, p. 5) calls for a "new generation of anti-incarcerative remedies in conditions lawsuits, unconnected to a population order, whose purpose is to keep vulnerable would-be prisoners out of harm's way by promoting workable alternatives to incarceration."…”