Pubdate: Sun, 07 Dec 2014
Source: San Francisco Chronicle (CA)
Copyright: 2014 Hearst Communications Inc.
Author: Alexandra Natapoff
Note: Alexandra Natapoff is associate dean for research and professor 
of law at Loyola Law School, Los Angeles.


California is doubling down on decriminalization. Three weeks ago, 
the passage of Prop. 47 converted a half-dozen felonies to 
misdemeanors. In 2011, marijuana possession was reclassified from a 
misdemeanor to an infraction without jail time. If Rip Van Winkle 
fell asleep a decade ago at the height of California's prison boom 
and woke up this morning, he'd quickly recognize this as a scramble 
to undo decades of harsh and expensive policy.

The state is not alone - we are seeing a seismic shift in how the 
United States handles punishment, especially with respect to 
misdemeanor decriminalization. Marijuana is the most famous example, 
but many states are eliminating jail time for other minor offenses, 
such as driving violations and public order crimes, and replacing 
them with so-called "nonjailable misdemeanors," "nonarrestable" or 
"fine-only" offenses, and "civil infractions."

There are a lot of great things about decriminalization. But it has a 
surprisingly punitive and racially charged dark side, and it doesn't 
always work the way people think it does. The "non-jailable 
misdemeanor" - popular in many states - is still a crime that 
triggers arrest, probation and fines, criminal records and other 
collateral consequences. Even the gold standard of decriminalization 
- - the "non-arrestable" civil infraction - can derail a defendant's 
employment, education and immigration status, while the failure to 
pay noncriminal fines can lead to contempt citations and 
incarceration. And while decriminalization sounds egalitarian - after 
all, it's a promise not to lock up people who would usually get 
locked up - sometimes it might actually make things worse for the 
poor and people of color.

There is something quietly misleading about our decriminalization 
conversation. Individuals might think that racking up minor 
decriminalized offenses will have no impact on their records or 
futures, even though it very likely will. Policymakers may promote 
decriminalization as a class equalizer and racially healing reform, 
even though it can have the opposite effect.

Voters and legislators might embrace decriminalization proposals in 
lieu of legalization in the mistaken belief that they are equivalent.

Decriminalization isn't a new reform, although the last time the 
United States seriously experimented with it was in the 1970s. But 
these days, it's not just motivated by a moral concern about 
over-punishment - it's also old-fashioned fiscal conservatism. When 
offenses don't carry jail terms, they don't trigger the 
constitutional right to counsel.

As a result, not only does decriminalization keep thousands of people 
out of jail, it saves the state millions of dollars in public 
defense, prosecution and jail costs.

It has other benefits, too. For overworked public defenders, 
decriminalization can reduce crushing misdemeanor caseloads.

Many hope also that decriminalization will ease the criminal justice 
system's infamous racial skew because African American men are 
disproportionately jailed for minor offenses.

For all these diverse reasons, misdemeanor decriminalization has 
strong support across the political spectrum: from the National 
Association of Criminal Defense Lawyers to the American Bar 
Association, the Cato Institute and former Republican presidential 
candidate Pat Robertson.

To understand the irony of a reform that seeks to make the system 
more fair but may actually make it less so, remember that 
decriminalization does not make conduct legal.

It just changes the punishment - typically by eliminating 
incarceration. Only a few states have actually "legalized" marijuana 
under state law. Everybody else is removing jail penalties or 
reclassifying offenses as fine-only infractions. Likewise, traffic 
"decriminalization" does not authorize you to speed or drive without 
your license.

It turns out that people are still being punished for decriminalized 
offenses, often heavily, in ways that slip beneath the public radar.

And because such offenses do not trigger the right to counsel, 
thousands of individuals are getting convicted - along with fines 
they might not be able to pay - without legal assistance or full information.

People are often surprised to learn that they can still be arrested 
for a decriminalized offense.

Although such offenses are often lauded as "non-arrestable," the 
label is misleading. The U.S. Supreme Court says that police can 
constitutionally arrest for non-arrestable or fine-only offenses, 
even when state law explicitly tells them not to. In many 
jurisdictions, police can choose between issuing a summons (a ticket) 
or making an arrest.

To be sure, decriminalization often reduces arrest rates (it has in 
California), but it doesn't have to (it hasn't in Nebraska or in 
Chicago's African American neighborhoods).

Many believe that a decriminalized offense will not trigger a 
criminal record or other negative consequences of conviction. But in 
most states, a decriminalized offense can still affect employment, 
housing eligibility, student loans and immigration. For example, 
under the U.S. Sentencing Guidelines, a civil, non-arrestable, 
decriminalized marijuana infraction from a local jurisdiction counts 
as a criminal offense triggering a longer federal sentence.

In perhaps the greatest irony, courts around the country routinely 
use civil contempt to jail individuals for nonpayment even though 
decriminalized offenses are technically "nonjailable." As the New 
York Times recently complained, "minor offenders who cannot pay a 
fine or fee often find themselves in jail cells." The Washington Post 
recently profiled Nicole Bolden, a single mother in now-infamous St. 
Louis County, who was incarcerated for two weeks for failure to pay 
traffic tickets.

These kinds of fines create another danger for a cash-strapped 
judiciary. 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. 
Thomas Edsall recently excoriated this phenomenon as "poverty 
capitalism," in which fines and fees are extracted from poor 
defendants to pay for their own criminalization.

Because it eliminates lawyers and other forms of due process, 
decriminalization can barrel ahead without much resistance. Summonses 
are easy to issue; without lawyers most cases go uncontested. In 
effect, decriminalization makes it easier to sweep people into the 
criminal system - especially if you are poor. Decriminalization is a 
relatively good deal for defendants who can pay fines immediately or 
comply easily with supervisory conditions. But for poor, 
underemployed, drug-dependent and other disadvantaged defendants, 
fines and supervision are big trouble.

Failure to pay or to show up for supervision can lead to more fines 
and even jail.

This makes decriminalization racially complicated. On the one hand, 
because African Americans are disproportionately arrested and 
punished for minor offenses - especially marijuana - any rollback of 
the misdemeanor machine helps.

This fact drove marijuana decriminalization in Washington, D.C., 
where African Americans were being arrested at eight times the rate of whites.

But such racial benefits are not guaranteed. In white Chicago 
neighborhoods, decriminalization reduced arrest rates; in black 
Chicago neighborhoods, arrest rates actually went up. In five other 
states including California, marijuana decriminalization has reduced 
overall arrest rates but not the racial disparities in those arrests.

It's often hard to tell whether criminal justice reform is real 
progress or a shell game. Is California actually reducing 
incarceration, or is it quietly shifting prisoners around or 
repackaging punishment so as to avoid appointing lawyers for poor 
people? Decriminalization offers great promise, but it needs to be 
carefully monitored to make sure it lives up to its tantalizing name.
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MAP posted-by: Jay Bergstrom