Law and the parameters of acceptable deviance.

• Author: Edwards, Mark A.

1. INTRODUCTION

   What's the speed limit? (1)

   The explanatory power of one answer to that apparently innocuous question provides a useful and rich conceptualization of law that can shine light on the dynamic relationship between the regulated and their regulators, and guide lawmakers in their policy decision-making. Moreover, it can link together the most mundane and ubiquitous legal phenomena, such as the decision of a police officer to stop a driver for a traffic violation, with the most spectacular and rare, such as the decision of the Supreme Court to intervene in the presidential election in 2000.

2. THE EFFECT OF SOCIAL NORMS ON ENFORCEMENT DISCRETION

   There is a well-recognized gap between law-on-the-books, or formal law, and law-as-enforced. This is apparent nowhere so much as in criminal law; as Kenneth Culp Davis recognized long ago, there are "two sides" within criminal law--"the formality and the reality." (2) The formality, in Davis's classic formulation, exists "in statute books and in opinions of appellate courts." (3) Reality, by contrast, "is found in the practices of enforcement officers." (4) These practices vary widely: "[S]ome law is always or almost always enforced, some is never or almost never enforced, and some is sometimes enforced and sometimes not." (5) There is a parallel gap between law-on-the-books and law-as-behaved. As Tom Tyler explained, despite continuous efforts by regulators over long periods of time, the regulated simply do not conform their behavior to formal law in many areas. (6) Some law is always or almost always behaved, some is almost never behaved, and some is sometimes behaved and sometimes not.

   If the formal law is neither behaved nor enforced, how do regulators and the regulated find behavioral and enforcement standards that leave most people free from coercive enforcement most of the time, regardless of the legality of their behavior, yet subject the most extreme behaviors to coercive enforcement most of the time?

   Scholars have taken serious interest in the social forces that guide the regulated's compliance decisions. (7) Much scholarship has focused on the powerful effect of social norms on those decisions across legal boundaries. (8) Many years ago, Stewart Macaulay showed that norms of social behavior are often more powerful than the law; (9) that is, behavioral decisions, even those made within a law-based relationship, are often made with reference to norms first, law second. (10) Macaulay's insights focused on civil law, but they apply to criminal as well; as Paul Robinson explains, "criminal law's power to influence conduct may reside in large part in its normative rather than its coercive crime control mechanisms." (11)

   Less attention has been paid to the effect of norms on discretionary enforcement decisions. Although commentators have debated how much discretion institutions of enforcement and actors within them should have, (12) and whether particular exercises of discretion are wise or just, (13) few have examined the social forces that guide discretionary enforcement decisions.

   To the extent regulators' enforcement decisions do not adhere to enforcement of the formal law--that is, to the extent they are formally "deviant"--we may ask, as we do for the regulated, what is guiding their decision-making. Both enforcement and compliance decisions are exercises of discretionary behavior. If enforcement and compliance are both kinds of discretionary behavior, then both are subject to the social forces that influence behavior. It is not surprising, therefore, that close examination reveals that just as the regulated are guided by norms in their compliance discretion, regulators are guided by norms in their enforcement discretion.

   An example from the frozen sidewalks of Madison, Wisconsin, (14) helps to illustrate the point. (15) In the winter months, Madison deploys sidewalk snow inspectors--men and women whose job it is to enforce the city's sidewalk-clearing ordinance following a snowstorm. The ordinance is specific: property owners must clear, free of snow and ice, at least a three-foot wide path no later than noon of the day following each snowfall. (16) But its enforcement is guided not just by its terms, but also by the inspectors' normative sensibilities.

   For example, in February 2006, an inspector measured a cleared path in front of an apartment complex. (17) It was two feet wide at its widest point, and narrower elsewhere: a clear violation. Still, he wrestled with whether to enforce the ordinance, describing it as "a tough call." (18) Ultimately, keeping in mind that most wheelchairs are wider than two feet, he decided to issue a citation, explaining, "If it's a big business, I'm OK with it. It's not the greatest feeling when you're beating up Grandma." (19)

   In contrast to the "tough calls," some decisions to enforce are "nobrainers." (20) For example, he did not hesitate to cite a business that had made no attempt to clear any of the eight-inch deep snow from its sidewalk; he had cited this business twice previously during the same winter. (21)

   In short, the inspector had created a taxonomy of enforcement that did not exist in the ordinance. "Grandma's" violations were not subject to enforcement; it was a "tough call" when a non-Grandma had made some effort toward compliance; enforcement against a non-Grandma who made no effort toward compliance was a "no-brainer." The blueprint for this taxonomy was not the ordinance; it was the inspector's normative sensibility, one likely shared by and derived from others in his community, regulators and regulated alike. Consequently, at least on his beat, that normative sensibility became the effective ordinance.

   More than forty years ago, Herman Goldstein, then Executive Assistant to the Chicago Police Superintendent, discussed a remarkably similar issue. (22) A Chicago ordinance prohibited four-wheeled vehicles from being driven on sidewalks. (23) Chicago police arrested a man who was clearing snow from his neighborhood sidewalks by driving a snowplow on them, in clear violation of the ordinance. (24) The department found, to its horror, that the community was "enraged" by the arrest. (25) To the community, there were degrees of acceptability for driving on sidewalks, even though forms of driving on the sidewalk were formally deviant. Driving on the sidewalk for one's own convenience was unacceptably deviant; driving on the sidewalk to help neighbors clear snow was acceptably deviant.

   The fact that the police had enforced the law made no difference to the public, because the police were not expected to enforce the law; they were expected to enforce the limit of normatively acceptable deviance. In response, the police adapted their enforcement practices to the regulated's normative sensibility: "Members of the department no longer arrest the drivers of four-wheel sidewalk plows; the ordinance, however, remains on the books. We have just decided not to enforce it." (26)

   Goldstein reported similar uproar over no-fault enforcement practices. (27) For example, formal law required police to cite motorists driving with a non-working headlight, regardless of fault. (28) The local press joined public condemnation of the practice, summarizing the popular argument as "the motorist who purposely breaks the law deserves to be punished" but that otherwise enforcing the law was not "sensible." (29) The police responded by tailoring their enforcement practices to match popular sentiment: officers were instructed to issue citations if they believed the motorist had ample time to fix the headlight but had refused. (30) In other words, the community's normative sensibility added the element of mens rea to the formal law, and the police decided to enforce the law-as-rewritten-by-normative-sensibility, rather than the law-as-written. (31)

   Similarly, in his study of the enforcement of strict liability criminal laws governing wildlife conservation, Frank Remington discovered that the wardens charged with enforcing strict liability statutes had effectively read the element of mens rea back into them. (32) He found that game wardens would not usually arrest a hunter in a no-hunting area, unless the hunter tried to hide from the warden--by hiding, the hunter revealed a guilty mind, indicating that he knew he was in a no-hunting area and had intentionally entered it anyway. (33) By basing enforcement decisions on the presence of a guilty mind in defiance of the statute's strict liability scheme, the wardens had aligned their enforcement practices with what they perceived through their "day-by-day, warden-meets-offender" experience as the community's normative sensibility: that liability without fault was simply unfair. (34) Insisting upon it, the wardens believed, would endanger "public cooperation" with the broader goals of wildlife conservation. (35)

   Grattet and Jenness have insightfully observed that police departments "are places where law is given meaning." (36) Statutes "cast[] a shadow" over policing but do not determine what police do. (37) But as Goldstein and Remington noted, regulators such as police are not alone in giving the law meaning. The real meaning of law is also generated within the "realms that it seeks to regulate." (38) "Meaning-making ... is distributed across traditionally understood boundaries between 'inside' and 'outside' of the legal system." (39)

   In each of these instances, formal law is neither behaved nor enforced. But the result is not chaos. Those charged with enforcing the law frequently exercise their discretion in a manner that enforces norms instead, just as those charged with complying with it frequently exercise their discretion in a manner that complies with norms instead. As Edward Rubin has explained:

   Weakening the formal controls may increase random variations in behavior, but its only consistent effect will be to increase the effects of informal norms. Very often, it is the...