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After the Cheering Stopped: Decriminalization and Legalism's Limits

39 Pages Posted: 24 Sep 2014  

Wayne A. Logan

Florida State University - College of Law

Date Written: September 5, 2014

Abstract

To the great relief of many, American criminal law, long known for its harshness and expansive prohibitory reach, is now showing signs of softening. A prime example of this shift is seen in the proliferation of laws decriminalizing the personal possession of small amounts of marijuana: today, almost twenty states and dozens of localities have embraced decriminalization in some shape or form, with more laws very likely coming to fruition soon. Despite enjoying broad political support, the decriminalization movement has however failed to curb a core feature of criminalization: police authority to arrest individuals suspected of possessing marijuana. Arrests for marijuana possession have skyrocketed in number in recent years, including within decriminalization jurisdictions. This essay examines the chief reasons behind this disconnect, centering on powerful institutional incentives among police to continue to make arrests, enabled by judicial doctrine that predates the recent shift toward decriminalization. The essay also identifies ways to help ensure that laws decriminalizing simple marijuana possession, as well as other low-level offenses, better achieve decriminalization’s goal of limiting the arrest authority of police and the many negative personal consequences of arrest.

Keywords: decriminalization, marijuana, policing, Fourth Amendment

JEL Classification: K14, K40, K42

Suggested Citation

Logan, Wayne A., After the Cheering Stopped: Decriminalization and Legalism's Limits (September 5, 2014). Cornell Journal of Law and Public Policy, Forthcoming; FSU College of Law, Public Law Research Paper No. 707. Available at SSRN: https://ssrn.com/abstract=2500214

Wayne A. Logan (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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