This Article explores a recurrent puzzle in federal criminal law: why do the outcomes of a law—who ultimately gets prosecuted, and for what conduct—diverge, sometimes markedly, from lawmakers’ and enforcers’ aims? This disconnect between law’s ambition and fruition is particularly salient in federal drug enforcement, which has focused on capturing the most high-value offenders—large-scale traffickers, violent dealers, and the worst recidivists—yet has imprisoned large numbers of offenders outside these categories. In this respect, federal drug enforcement is a case study in the ambition/fruition divide.
Among the divide’s contributing factors, I focus here on organizational dynamics in enforcement: the pressures and incentives among and within the organizations that collectively comprise the federal drug enforcement enterprise. These pressures and incentives operate along three vectors: between the enforcers and the enforced; across and within federal enforcement institutions; and between federal and local enforcers. Together, they create a system that stymies focus on the most culpable even as it makes apprehending them a principal aim. This insight carries important implications for reform, both within drug enforcement and outside it. Changing who, and how many, we prosecute requires attention not only to laws, but also the lower-visibility spaces in which enforcement patterns take root. In the new political landscape, these lower-visibility spaces are federal criminal justice reform’s next frontier.
Click on a link below to access the full text of this article. These are third-party content providers and may require a separate subscription for access.