NCJ Number
180271
Journal
Law and Social Inquiry Volume: 23 Issue: 4 Dated: Fall 1998 Pages: 823-856
Editor(s)
Carol A. Heimer,
Elizabeth Mertz,
Victoria S. Woeste
Date Published
1998
Length
34 pages
Annotation
This paper uses Herbert Jacob's organizational approach to analyzing criminal trial courts to examine instances in which trial judges have resisted the racial implications of the Federal sentencing law, have openly tweaked this law, and thus have participated in a conversation designed to change the law.
Abstract
Law reform sometimes has unanticipated and even ironic results. One good example is the Federal legislation enacted in the 1980's to enhance sentencing equity by adopting presumptive sentencing guidelines for all serious criminal offenses and mandatory sentences for some specific crimes. Reforms succeeded in reducing judicial discretion in sentencing, but racial disparities have become much worse. Unprecedented numbers of minorities, particularly black men, are going to jail for long terms, partly due to the drastically different penalties for possession and sale of crack and cocaine. This situation leaves trial judges in the difficult position of being legally bound to implement a sentencing regime that many of them believe is racially discriminatory. As Jacob's organizational approach predicts, judges were initially more troubled by the diminution of their powers than by the emerging pattern of increased minority incarceration. The three forms of judicial resistance have included: (1) collusion through evidence bargaining and other outcome-oriented manipulations to thwart the law's full impact; (2) decisions within the boundaries of the sentencing law that tend to bend it toward greater equity for minority defendants; and (3) protest in judicial opinions, sometimes amounting to refusal to apply the law. Some judges have written extensively in criticism of the sentencing guidelines. Judicial resistance to a law on moral grounds is rare but significant, because it represents a break in the ranks of officialdom that enhances the moral credibility of critics of the current law. Footnotes, list of cases, and 68 references