Declining Deviance, Expanding Law

Mark Cooney, University of Georgia

Particular forms of deviance sometimes increase dramatically in incidence as happened, for example, in the 1980s when a new type of deviant behavior emerged and became popular among some sectors of the population - the consumption of crack cocaine. The crack epidemic led to a sharp expansion in penal law - in criminal legislation, arrests, prosecution, and sentencing. Paradoxically, though, the legal system can also expand when deviant behavior becomes less frequent. Racial violence, drunk driving, and smoking are examples of deviant behavior that appear to have declined over the past 50 years yet have, during the same period, attracted more legislation, prosecution, and punishment. Why is this? After empirically documenting several instances of the paradox of declining deviance and expanding law, the present paper argues that its explanation can be found in the theory of law proposed by Donald Black in The Behavior of Law. Black's theory has the additional advantage of also being able, in principle, to predict and explain exceptions to the paradox, those instances in which law expands in response to increases in deviant behavior.

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Updated 05/20/2006