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: http://goo.gl/x4adjF
By: Wayne A. Logan*
* Gary & Sallyn Pajcic Professor of Law, Florida State University College of Law
More at: https://twitter.com/hiv insight
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