Misdemeanor Decriminalization

By Natapoff, Alexandra | Vanderbilt Law Review, May 2015 | Go to article overview

Misdemeanor Decriminalization


Natapoff, Alexandra, Vanderbilt Law Review


I. INTRODUCTION

The U.S. criminal system is at a historical crossroads. In some ways, the behemoth is becoming kinder and gentler: many jurisdictions are shortening drug sentences and closing prisons, while crime and incarceration rates are down. At the same time, the criminal process is an increasingly intrusive system of surveillance, social stratification, and behavioral control. Even as we retract certain formal punishments-primarily incarceration-we are simultaneously expanding the system's capacity to watch, label, direct, and derail the lives of a growing population subject to arrest, conviction, and nonprison punishments. These conflicting forces suggest that we are at an important moment of contest, a fundamental dispute over the nature and future of the penal process itself.

Misdemeanor decriminalization-the reduction of penalties for minor offenses-is central to this historical moment. At the most general level, it is central because misdemeanors themselves are so important, making up the vast bulk of the U.S. system and fueling some of its most pressing problems. Most Americans experience criminal justice via the petty offense process; the ten million misdemeanor cases filed annually comprise around eighty percent of state dockets. Moreover, the petty offense process drives some large and troubling dynamics. The misdemeanor machinery is a major source of overcriminalization; it produces much of the racial skew of the U.S. criminal population; and it exacerbates the dysfunction of our public-defense bar, overwhelming public defenders with hundreds, sometimes thousands, of minor cases.1 For all these reasons, large-scale changes in misdemeanor policy, such as decriminalization, have ripple effects throughout the criminal system.

More specifically, misdemeanor decriminalization is a profoundly conflicted, sophisticated regulatory practice with far-reaching penal and social implications. To start with, in the misdemeanor context "decriminalization" does not mean "legalization," although many people do not realize the significance of the difference.2 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.

Decriminalization takes a wide array of forms that carry different labels and punishments-from the creation of fine-only "civil infractions" to "nonjailable misdemeanors." Although widely misunderstood, the distinctions between these policy choices are enormous. The reclassification of crime into a civil infraction-or "full" decriminalization-removes an offense from the criminal system entirely. Although the conduct remains punishable, full decriminalization can spare offenders many of the collateral consequences of the criminal process such as arrest or a criminal record. By contrast, under the more common practice of "partial" decriminalization, offenses retain their criminal character and attendant burdens. Typically, partial decriminalization means that defendants cannot be incarcerated for the underlying offense, but it can take other forms as well, from shortened or deferred sentences to supervision and treatment. This variety of regulatory options makes decriminalization a flexible and sophisticated policy tool in ways that the public conversation often misses.

Decriminalization is now squarely on the agenda as an increasingly favored response to the American criminal justice challenge. Commentators on the left and right, the American Bar Association ("ABA"), the National Association of Criminal Defense Lawyers ("NACDL"), and numerous scholars have called for decriminalizing minor offenses as a solution to a wide array of systemic problems. This consensus is fueled in part by a special legal feature of misdemeanors: minor offenses that carry no possibility of jailtime do not trigger the Sixth Amendment right to counsel. …

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