DATE DOWNLOADED: Thu Jul 23 16:03:47 2020

SOURCE: Content Downloaded from HeinOnline

Citations:

Bluebook 20th ed.

Jennifer Chacon, Decriminalization and Its Discontents, 2015 Jotwell: J. Things We
Like [380] (2015).

ALWD 6th ed.

Jennifer Chacon, Decriminalization and Its Discontents, 2015 Jotwell: J. Things We
Like [380] (2015).

APA 7th ed.

Chacon, J. (2015). Decriminalization and Its Discontents. Jotwell: The Journal of
Things We Like (Lots), 2015, [380]-[382].

Chicago 7th ed.

Jennifer Chacon, "Decriminalization and Its Discontents," Jotwell: The Journal of
Things We Like (Lots) 2015 (2015): [380]-[382]

McGill Guide 9th ed.

Jennifer Chacon, "Decriminalization and Its Discontents" [2015] 2015 Jotwell: The J
of Things We Like (Lots) [380].

MLA 8th ed.

Chacon, Jennifer. "Decriminalization and Its Discontents." Jotwell: The Journal of
Things We Like (Lots), 2015, 2015, p. [380]-[382]. HeinOnline.

OSCOLA 4th ed.

Jennifer Chacon, 'Decriminalization and Its Discontents' (2015) 2015 Jotwell: J
Things We Like [380]

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
Decriminalization and Its Discontents
http://crim.jotwell.com/decriminalization-and-its-discontents/
Alexandra Natapoff, Misdemeanor Decriminalization,68 Vand. L. Rev. _ (forthcoming 2015), available at
SSRN.

Jennifer Chacon

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, https://www.ice.gov/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, Decriminalizationand Its Discontents, JOTWELL (March 20, 2015) (reviewing
Alexandra Natapoff, Misdemeanor Decriminalization,68 Vand. L. Rev. _ (forthcoming 2015), available at
SSRN), http://crim.jotwell.com/decriminalization-and-its-discontents/.