As the United States reconsiders its stance on mass incarceration, misdemeanor decriminalization has emerged as an increasingly popular reform. Seen as a potential cure for crowded jails and an overburdened defense bar, many states are eliminating jailtime for minor offenses such as marijuana possession and driving violations, replacing those crimes with so-called “nonjailable” or “fine-only” offenses. This form of reclassification is widely perceived as a way of saving millions of state dollars—nonjailable offenses do not trigger the right to counsel—while easing the punitive impact on defendants, and it has strong support from progressives and conservatives alike. But decriminalization has a little-known dark side. Unlike full legalization, decriminalization preserves many of the punitive features and collateral consequences of the criminal misdemeanor experience, even as it strips defendants of counsel and other procedural protections. It actually expands the reach of the criminal apparatus by making it easier—both logistically and normatively—to impose fines and supervision on an everwidening population, a population that ironically often ends up incarcerated anyway when they cannot afford fines or comply with supervisory conditions. The turn to fine-only offenses and supervision, moreover, has distributive implications. It captures poor, underemployed, drug-dependent, and otherwise disadvantaged defendants for whom fines and supervision are especially burdensome, while permitting well-resourced offenders to exit the process quickly and relatively unscathed. Finally, as courts turn increasingly to fines and fees to fund their own operations, decriminalization threatens to become a kind of regressive tax, turning the poorest populations into funding fodder for the judiciary and other government budgets. In sum, while decriminalization appears to offer relief from the punitive legacy of overcriminalization and mass incarceration, upon closer inspection it turns out to be a highly conflicted regulatory strategy that preserves and even strengthens some of the most problematic aspects of the massive U.S. penal system.
Associate Dean for Research, Theodore A. Bruinsma Fellow & Professor of Law, Loyola Law School, Los Angeles. Special thanks to Brie Clark, Sharon Dolovich, Doug NeJaime, Michael Pinard, Bob Weisberg, and participants at the 2014 Southern California Criminal Justice Roundtable.