Common accounts of police and prosecutorial nonenforcement discretion tend to valorize individual declination choices as demonstrations of mercy and resource constraint. Simultaneously, these accounts critique blanket nonenforcement policies as being outside the bounds of executive authority. Both accounts fail to consider the origins and implications of nonenforcement decisions made by police officers and prosecutors in individual cases that, when taken together, amount to significant underenforcement of an otherwise valid law. This Article fills the gap between these differing perspectives by empirically examining the hidden and habitual underenforcement of technically valid drug-free-zone (DFZ) laws in one Southern county. Data matching the locations of felony drug arrests with residential, school, and commercial drug-free zones shows chronic underenforcement of DFZ laws during the first decade of the twenty-first century. Interviews with police and prosecutors in this county expose their reasons for nonenforcement. These reasons predominately include ignorance, benign neglect, institutional mistrust of other system actors’ motives and competence, and pessimism about the ability of the laws to effect deterrence. Finally, interviews with active drug offenders within the county reveal their limited understanding of the nature of DFZ laws, the terms of liability, and the consequences of being charged with a violation. While chronic underenforcement of DFZ laws is surely preferable to widespread application of an overly punitive drug policy, these laws can stigmatize the underclass even if not meaningfully enforced. Moreover, if enforcement were to be reinvigorated, the zone locations would likely create considerable disparities in criminal legal processing. Only structural legal change can mitigate these concerns.
