Decriminalization and Its Discontents

Alexandra Natapoff, Misdemeanor Decriminalization, 68 Vand. L. Rev. ___ (forthcoming 2015), available at SSRN.

Have we reached a turning point in criminal justice? Political leaders, criminal justice actors and even the general public have come to agree that our criminal justice system is broken. It delivers a product that is long on punishment, but short on justice, mercy, efficiency, cost-effectiveness and rationality. Consequently, states are moving to shorten some drug sentences, to decrease overall imprisonment rates, and to legalize or decriminalize marijuana possession. We are even witnessing manifestations of leniency from the public: witness the California voters’ 2014 roll-back of that state’s notorious “three-strikes” law.

Clearly, we are at an inflection point. But is this a true turning point? Or are we witnessing another historical moment in which harsh and unequal criminal justice systems demonstrate the uncanny ability to achieve preservation through transformation in the face of widespread criticism? In her article Misdemeanor Decriminalization, Sasha Natapoff helps her readers to wrestle with this question. The answer may not be as encouraging as we might have hoped.

One of the key developments in the purported trend away from severity has been the decriminalization of misdemeanor offenses. Decriminalization takes many forms, from full decriminalization, in which conduct remains punishable as a civil infraction, but not criminal, to less complete decriminalization, in which conduct remains criminal, but the state offers shorter sentences, deferred sentences or treatment options in lieu of criminal punishment. Decriminalization has been heralded as an important step away from the hyper-punitive and racially discriminatory criminal justice policies of the past four decades, and it offers some promise in this regard. While recognizing the potential benefits, Natapoff reminds us that these developments do not necessarily push in a single direction toward decreased punitiveness, greater fairness and more freedom. She reminds us that decriminalization also has its costs.

As Natapoff explains, decriminalization is not the same as legalization, and this difference matters a great deal. “Decriminalization does not render conduct legal. Instead, it typically reduces penalties—mainly incarceration—for conduct that remains illegal and forbidden. Accordingly, while misdemeanor decriminalization eases the immediate punitive impact of the penal system, it leaves in place the vast web of forbidden conduct and its accompanying law enforcement apparatus.” (P. 3).

Natapoff acknowledges that there are many benefits to decriminalization, including reduced incarceration rates, and sometimes reduced arrest rates, and a reduced burden on the very over-burdened defense bar. (P. 4). But these well-publicized upsides are accompanied by some less widely-considered downsides. Natapoff identifies three significant downsides in her article. First, she reminds the reader that decriminalization does not strip the offense of all of its consequences – and these consequences sometimes wind up being identical to those of criminal sanctions. Misdemeanors that carry no jail time may still entail “arrest, probation and fines, criminal records and collateral consequences.” (P. 5). Arrests alone are worrisome enough, and Natapoff reminds us that decriminalization does not take arrests off the table in all jurisdictions. As events of the last few months remind us, the consequences of arrest can be severe and even fatal. Those who resist arrest risk death; those who are arrested successfully can be subjected to intrusive and demeaning searches,1 checks into immigration status can lead to deportation,2 and an arrest record that can affect their employment prospects, housing options and education loan opportunities. (P. 28). These possibilities are all the more concerning because many individuals who engage in targeted behavior may be unaware of all of these risks, given the purported “decriminalization” of their conduct.

Also concerning is the fact that those who receive fines for their conduct will often agree to the fines in uncounseled settings. While this seems intuitively acceptable in such apparently low-stakes situations, an individual’s later inability to pay a fine can lead to contempt citations and imprisonment, thereby putting her back in the same place from which decriminalization had promised an exit – but this time without the procedural backstops that the criminal justice system carried with it prior to decriminalization. (P. 29-34).

The second downside of decriminalization flagged by Natapoff is net-widening. Decriminalization “makes it possible to reach more offenders by simplifying the charging process and eliminating counsel [and] other forms of due process.” (P. 5). Simultaneously, it “widens the impact of the net, by turning to supervision and fines as indirect, long-term constraints on defendant behavior, and by extending the informal consequences of a citation or conviction deep into offenders’ social and economic lives.” Id. In some cases, the extensive monitoring and payment system kicked off by a citation for a decriminalized offense may look much more intrusive than the criminal sanctions that accompanied the offense prior to decriminalization. Natapoff describes the many ways that supervision and fines result in the long-term and intrusive monitoring of certain targets, and reminds the reader that the burdens are not shared equally by members of all races and classes.

The third unheralded downside of decriminalization is its costs for the poor. As Natapoff writes, “decriminalization functions as a kind of regressive tax.” (P. 5). Criminal justice actors who increasingly rely on fines for their funding can and do use the fines for decriminalized infractions as a revenue source. Individuals who are able to pay their fines help to fund the system. Those who can’t pay are the poor – a group that Natapoff reminds us is disproportionately made up of people of color. And it is in poor and over-policed neighborhoods where these fines fall heaviest. Decriminalization can make it more expensive to be poor.3 As Natapoff writes, “by decriminalizing minor offenses, we risk turning the most vulnerable population into funding fodder for the very institution from which we are trying to protect them. That, paradoxically, makes decriminalization a kind of regressive economic policy masquerading as progressive penal reform.” (P. 5-6).

While Natapoff ultimately views the benefits of decriminalization as significant, her article offers an important corrective to the notion that the current wave of decriminalization is an easy and cost-free remedy for the ills of over-incarceration and discrimination in the criminal justice system. We must confront the possibility that the poor and the disenfranchised – not the most culpable – will be the increasingly fine-tuned and heavily-penalized targets of criminal justice in the era of decriminalization. Natapoff’s article is therefore a very important contribution to ongoing conversation about how criminal justice reform should proceed.

  1. See Florence v. Board of Chosen Freeholders, 566 U.S. ___ (2012). []
  2. U.S. Immigration and Customs Enforcement, Secure Communities, (last visited Jan. 17, 2015. []
  3. Charles Blow, How Expensive It Is to Be Poor, New York Times, Jan, 19, 2015, at A19. []
Cite as: Jennifer Chacon, Decriminalization and Its Discontents, JOTWELL (March 20, 2015) (reviewing Alexandra Natapoff, Misdemeanor Decriminalization, 68 Vand. L. Rev. ___ (forthcoming 2015), available at SSRN),