Decriminalization Essay ⋆ Criminal Justice Essay Examples ⋆ EssayEmpire

The Merriam-Webster Dictionary defines decriminalization generally as the process of removing or reducing the criminal classification or status of something and more specifically as repealing a strict ban on something while retaining some form of regulation. While many view decriminalization as legalizing a particular criminal act, in most cases it does not do so. As the definition above indicates, decriminalizing a behavior often involves reducing the seriousness assigned to the level of the behavior (e.g., reducing a Felony A offense to a Felony C offense) or getting rid of a total prohibition on something while leaving in place certain kinds of restrictions or regulations, as in the case of alcohol and Prohibition. Clearly, an important aspect of decriminalization is the resulting reduction in punishment and penalties that accompany any removal or reduction of the criminal status of an activity (e.g., jail/prison time as a potential punishment may, in some cases, become a fine or other lesser sanction). To be sure, in the United States (as in some other countries), the issue of decriminalization is virtually synonymous with discussion and debate surrounding drug use and possession, specifically the use and possession of marijuana. However, discussions of decriminalization (and full legalization) extend to many more behaviors than drug use and drug possession.

Foundations of Criminalizing (Versus Decriminalizing) Certain Behaviors

There are a variety of reasons given by lawmakers, scholars, and policy analysts for why certain behaviors and activities are deemed illegal. A number of perspectives are particularly relevant in discussions of criminalization versus decriminalization, including (1) preventing harm from coming to others; (2) preventing offensive/ immoral behaviors; (3) preventing harm to one’s self (i.e., legal paternalism); and (4) preventing harm to societal morals (i.e., legal moralism). These frameworks provide the foundation and justification for classifying certain kinds of behaviors—many of which may also be defined as individual choice—as illegal.

A variety of behaviors currently defined as criminal may fall under the broad umbrella of public morality/moral offenses, also referred to as offenses against the public order. Many but not all of these offenses may also be considered victimless crimes as they typically involve only consenting adults (e.g., drug use, prostitution). Certainly then, ethical and moral considerations are critical, and often controversial, factors in defining as illegal behaviors and activities such as these— as opposed to behaviors such as murder, robbery, kidnapping, and rape for which there appears to be much clearer consensus regarding the harm and criminality of these behaviors. Moreover, issues of personal choice and privacy surround many common behaviors (e.g., drug use, prostitution, sexting, public drunkenness, gambling). Designating behaviors as deviant or immoral and then using this designation to criminalize said behaviors poses ethical dilemmas for lawmakers and law enforcers.

Offenses Under Discussion for Decriminalization

Much of the discussion and debate on decriminalization surrounds drug use and possession of small amounts of a drug, particularly marijuana. For each article or report published on the issue of decriminalizing a nondrug-related crime, there are many more focused solely on the decriminalization of marijuana. The debate surrounding the decriminalization of drugs is primarily focused on personal use and small amounts of possession for personal use. There is not widespread support for decriminalizing the growing, manufacturing, selling, and/or distributing of large amounts of any drug.

There is however, considerable, and oftentimes heated, debate on whether or not use and personal possession—of any illegal drug—should be decriminalized. More specifically, there are a multitude of reasons cited in favor of decriminalizing marijuana use and possession, including: (1) its harmfulness (both physiologically and societally/ culturally) is no more and possiby less harmful than either alcohol or tobacco—both of which are legal and regulated; (2) the negative and arguably disproportionate effect that the War on Drugs, especially the prosecution and sentencing of drug-related offenders, has had on the lower class, ethnic and racial minorities, and on women; (3) the misuse of scarce, expensive prison and jail space for nondangerous and minor drug offenders; (4) the prospective ability to tax and regulate marijuana sales (and the resulting increased safety and the quality of the product); and (5) the criminalization of minor drug use and possession has not achieved any of the explicit goals of the criminal justice and correctional systems, including: deterrence, retribution, incapacitation, rehabilitation, and/or restitution/restoration.

Likewise, critics of decriminalization provide a number of reasons in favor of retaining the illegal status of drug use and possession, even for marijuana, including: (1) the harmful nature of the drug for the user, his/her family, and society; (2) the crime that results from drug use—both crimes that users commit while under the influence and crimes committed in order to buy drugs; (3) the gateway effect—use of a nonserious drug such as marijuana leading users to try and become addicted to potentially more serious, harmful, and dangerous drugs (e.g., cocaine, heroin, methamphetamines); (4) the medical and societal costs associated with treating the consequences of long-term drug abuse and addiction; and (5) sending a message (even if only symbolically) that using mind or personality-altering substances is wrong and potentially harmful.

In addition to the debate surrounding the decriminalization of marijuana use and personal possession, other kinds of public morality/order crimes have also been the subject of decriminalization, and, in some cases, outright legalization; some have been successful, others have not. As mentioned briefly above, ethical/moral issues often envelop these legal considerations as many of these behaviors are argued to be matters of privacy and choice which should not be subject to legal action according to the protections in the U.S. Constitution.

While none of these crimes were decriminalized without some opposition from those who favored their criminal status, the proposed (or actual) decriminalization of some of these behaviors was met with much less resistance than for others. More specifically, the recent decriminalization of misdemeanor domestic violence in Topeka, Kansas (primarily due to budget issues), is a unique example of an attempt to decriminalize a behavior that is pretty universally reviled. This is not necessarily the case with other types of behaviors that have come under decriminalization consideration or have been decriminalized, at least in some jurisdictions: prostitution/ sex work, gambling, certain kinds of pornography, sexting, public drunkenness, vagrancy/ homelessness, homosexual activities, and marriage between members of the same sex.

The Process of Decriminalization and Ethical Considerations

The decriminalization process is clearly not an easy one, especially with the recent federalization of many drug laws as part of the War on Drugs. States and localities may choose to decriminalize certain kinds of drug-related offenses but federal laws still govern many of these behaviors. Clearly, the decriminalization of various kinds of illegal behaviors can (and does) take place at the federal, state, county, and municipal/local levels, and different levels of government may have conflicting legislation regarding some of the more controversial behaviors under decriminalization consideration. For example, Colorado and Washington have legalized the recreational use of marijuana and 18 states and the District of Columbia have legalized the medical use of marijuana for certain, specified medical conditions, but the federal government has not done so. Nevada has legalized prostitution, and other states and localities have decriminalized or legalized such activities as gambling and public drunkenness. To be sure, decriminalization and the processes of doing so vary greatly across different legal jurisdictions throughout the United States.

It is important to highlight that the entire process of decriminalization (and criminalization for that matter) entails a variety of key decision makers behaving ethically. Ideally, individual legislators call on their moral/ethical systems when deciding to vote a particular way about defining certain activities as crime; police officers must make ethical discretionary decisions to enforce laws pertaining to the kinds of behaviors/activities described above; prosecutors/ judges are faced with making ethical charging, adjudication, and sentencing decisions involving highly controversial criminal acts; and, finally, corrections officials, including probation/parole officers and parole boards, are responsible for making ethically sound decisions when fulfilling their duties.

Bibliography:

Fish, Jefferson M. “Rethinking Drug Policy ” The Humanist (March/April 2013).
Lampe, Joanna R. “A Victimless Sex Crime: The Case for Decriminalizing Consensual Teen Sexting.” University of Michigan Journal of Law Reform, v.46/2 (2013).
Pollock, Joycelyn M. Ethical Dilemmas and Decisions in Criminal Justice. 7th ed. Belmont, CA: Wadsworth/Cengage Learning, 2012.
Richards, David A. J. “The Moral Foundations of Decriminalization.” Criminal Justice Ethics, v.5/1 (1986).
Santry, Shelley M. “Penny Wise but Pound Foolish in the Heartland: A Case Study of Decriminalizing Domestic Violence in Topeka, Kansas.” Journal of Law and Family Studies, v.14 (2012).

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