After three decades of watching the incarceration rate climb to unprecedented heights, Americans seem ready to usher in a new era of leniency. Some legislators are pushing to eliminate mandatory sentencing minimums for nonviolent drug offenders. Others are calling for the federal prison population to be slashed by letting some prisoners out early. Others still are advocating for incarcerated juveniles to be treated less harshly. Meanwhile, states all over the country are decriminalizing certain misdemeanor offenses so that people who are caught doing illegal but not-actually-very-bad things are punished less severely than they used to be.
On the surface, decriminalization of petty offenses seems like an approach that will make our criminal justice system less punitive and less expensive. But according to Alexandra Natapoff, an expert on the role of misdemeanors in the criminal justice system at Loyola Law School in Los Angeles, decriminalization comes with serious unintended consequences—and does not actually make the system more lenient.
Below, Natapoff explains why we need to take a harder look at the effects of decriminalization and take urgent steps to make sure the outcomes we get are ones we actually want.
What misdemeanors are being decriminalized around the country?
Marijuana possession is the poster child. It’s the one we see the most movement on, and it’s a phenomenon that dozens of states are engaging in. But some states are also looking at decriminalization of traffic offenses, as well as public-order offenses, like loitering and disorderly conduct.
Why are they doing this?
There’s a wide range of motivations behind the decriminalization phenomenon. One is to reduce the punitiveness of the petty offense process. There was a famous book published about 35 years ago, written by Malcolm Feeley, called The Process Is the Punishment. What he meant by “the process is the punishment” is that just getting swept up in the misdemeanor system is a punitive, intrusive, stigmatizing experience—even for people who never go to jail. Once you’ve been arrested, you may be detained. Bail may or may not be set. You may get incarcerated waiting for your case to be resolved. As part of that process, people miss work, they may not be able to take care of their children. We’re burdening and marking literally millions of people for chump-change behavior that no one thinks is particularly culpable. So, decriminalization is a way of injecting proportionality back into the petty offense process.
It’s also a way for the state to save millions of dollars. Petty offenses are expensive—prosecutors, jail costs, public defenders, court costs, they all add up. Decriminalization streamlines the process. Tickets and citations are easier and cheaper to issue and to process than arrests and traditional criminal cases. People who are not facing jail time are not entitled to counsel. So decriminalized offenses that have eliminated incarceration don’t trigger the right to counsel. This saves millions of dollars in defense costs for the state and also relieves the famously overburdened public defender system.
Those sound like great reasons to support decriminalization. So what’s everyone missing?
As is so often the case with the American criminal justice system, things don’t work out in practice the way it looks like they’ll work out on paper. And it turns out that even decriminalized offenses can be punitive and burdensome and unfair in ways that fly beneath the radar of the public debate about criminal justice.
Well, the great promise of decriminalization is that it will stop putting people in jail for minor offenses, right? And most states, when they decriminalize an offense, they eliminate jail as a potential punishment for it: The statute might say, for example, that the maximum penalty for marijuana possession is a $250 fine. However, if someone then fails to pay that $250, the courts can and often do take measures that result in incarceration anyway. For example, they can issue a failure-to-pay warrant. Or they can use the power of contempt to incarcerate people for failure to pay. In other words, they’re in contempt of the order to pay $250 and are jailed—not for the original marijuana offense but for being in contempt of that order. So, as a result, we see people all over the country being jailed for decriminalized offenses because they cannot afford to pay the fines and fees associated with them.
Who is affected by this most acutely?
Decriminalization doesn’t affect everyone equally. It’s a little bit like a tuna net—it lets some people go but it hangs on to others. So, for wealthy, well-educated folks it’s relatively straightforward to pay a fine or go to a drug education class or show up for a supervision or drug treatment program—they have resources, they have cars, and they can exit the criminal system relatively quickly, even if they have sustained a conviction for one of these decriminalized offenses. But for the poor, for the underemployed, people with children who don’t have child care, who don’t have transportation, people who might have substance abuse problems or mental health issues—all the other classes of vulnerable people who fill up the criminal justice population—a fine and supervision may be overwhelming burdens.
Is there a risk that the relative ease of writing a ticket for something like marijuana possession will result in the tuna net catching more people than it would have before decriminalization?
Yes. Sometimes we engage in criminal justice reform that’s designed to make the system more lenient or more generous, but an unintended consequence is that it makes it easier to sweep people into the process in the first place. Because decriminalization makes it easier to charge people to with low-level offenses, because it’s cheaper to process them, because the usual budgetary and logistical constraints of the criminal process have been eliminated, it’s extremely easy to issue summonses and citations to a wider and broader range of folks who otherwise the system might not bother with at all.
Decriminalization is starting to sound like kind of a misnomer.
In many ways it’s a way of repackaging punishment for poor people—it may eliminate the formal possibility of jail up front. But getting a citation or a ticket for a non-jailable misdemeanor actually carries with it all kinds of punishments. It still gives people criminal records. It still affects their employment. It can still affect their eligibility for public benefits. It can affect their immigration status, their student loans—there’s a wide range of collateral or informal consequences that go along with sustaining a conviction, even for a decriminalized offense—even though the word decriminalization suggests people are not going to be punished.
So what should we do? Is decriminalization a bad idea?
The American criminal system is at a very important historical moment. All across the political spectrum, people are questioning how large and harsh and ineffective and inhumane this system has become. Decriminalization is part of that questioning. And it offers important and wonderful possibilities for rolling back mass incarceration, which is now coming under so much criticism and so much scrutiny. But decriminalization does have a dark side. Some states do it better than others. For example, Massachusetts has a very carefully crafted decriminalization statute that expressly states that decriminalized offenses shall lead to no collateral consequences—they won’t be counted on people’s criminal records, and they can’t lead to arrest. And the Massachusetts Supreme Judicial Court has interpreted that statute in a way that’s consistent with that intent. So, in Massachusetts, decriminalization actually means decriminalization. In other states it doesn’t mean what people think it means.
What determines whether a decriminalization statute ends up working the way it’s supposed to, and not just making everything worse?
Lots of things. Legislatures can write statutes in ways that promote leniency. Or they can write statutes in ways that permit old habits to persist. Courts can interpret those statutes in ways that promote the values of decriminalization, or they can issue interpretations that permit business to proceed as usual. Perhaps most importantly, police are at the front lines of ensuring that decriminalization really works the way it’s supposed to.
Why are the police so important?
Just because an offense is labeled “non-arrestable” doesn’t mean that people aren’t getting arrested for it. Most of the time, police retain the authority to arrest, and the Supreme Court has held that, as a matter of constitutional law, police can arrest any individual for whom they have probable cause, regardless of whether or not the offense carries any potential jail time. And we’ve seen in numerous jurisdictions that the discretion that we give to police officers sometimes results in greater racial disparities in arrest rates. In Chicago, after decriminalization of marijuana possession, arrest rates did indeed fall—in white neighborhoods. But in some African American neighborhoods, arrest rates for marijuana possession actually went up.
We are heavily dependent on police practices and policies in order to make decriminalization real. We need police buy-in. But it really requires a joint effort among all the players who make the criminal system work—from police to prosecutors to courts and legislatures to defense attorneys—to make sure that decriminalization actually is the kind of reform that everybody hopes and some people assume it already is.
This interview has been edited and condensed.