Wednesday, January 27, 2016

After the Cheering Stopped: Decriminalization and Legalism's Limits

To the great relief of many, American criminal law, long known for its harshness and expansive prohibitory reach, is now showing signs of softening. A prime example of this shift is seen in the proliferation of laws decriminalizing the personal possession of small amounts of marijuana: today, almost twenty states and dozens of localities have embraced decriminalization in some shape or form, with more laws very likely coming to fruition soon. Despite enjoying broad political support, the decriminalization movement has, however, failed to curb a core feature of criminalization: police authority to arrest individuals suspected of possessing marijuana. Arrests for marijuana possession have skyrocketed in number in recent years, including within decriminalization jurisdictions. This Article examines the chief reasons behind this disconnect, centering on powerful institutional incentives among police to continue to make arrests, enabled by judicial doctrine that predates the recent shift toward decriminalization. The Article also identifies ways to help ensure that laws decriminalizing simple marijuana possession, as well as other low-level offenses, better achieve decriminalization’s goal of limiting police arrest authority and the many negative personal consequences flowing from arrests.

It seems that when it comes to criminal justice, as Bob Dylan once put it, “the times they are a-changing.” After a several-decades-long experiment in harsh penality, state and federal governments alike are rethinking their reliance on lengthy prison terms and the collateral consequences flowing from conviction. They also are showing greater willingness to except from the common “one-way ratchet” of criminalization, taking steps to shrink their criminal codes and decriminalize conduct once classified as criminal.

A notable example of this latter shift is found in legislative efforts to decriminalize the personal possession of small amounts of marijuana. While marijuana decriminalization first took root early in the nation’s war on drugs, in 1973, it has garnered increasing interest of late. Today, public opinion polls show unprecedented support for decriminalization, and eighteen states, the District of Columbia and multiple localities have to some extent decriminalized possession, with other jurisdictions seemingly poised to do the same.

Although the political significance of the shift is not to be discounted, it has become increasingly apparent that public sentiment is at odds with a countervailing empirical reality: despite ongoing decriminalization, arrests for marijuana possession have skyrocketed in number in recent years, increasing by several orders of magnitude since 2001. In 2012 alone, there were almost 750,000 marijuana-related arrests in the U.S., more than 87% of which were for simple possession. Even more curious, several states adopting decriminalization boast among the nation’s highest per capita arrest rates for possession, and cities in which decriminalization was adopted—New York and Chicago in particular— continued to boast very high numbers of possession arrests.

This Article seeks to explain this legal-empirical disconnect and offer some cautionary observations if, as expected, the nation continues to embrace marijuana decriminalization and decriminalization more generally.

Full PDF article at:

By:  Wayne A. Logan*
* Gary & Sallyn Pajcic Professor of Law, Florida State University College of Law

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