« Ending Mass Criminalization

Policy 1: Decriminalization

Police are the frontline enforcers of a criminal justice system that incentivizes incarceration. While much attention has been paid to police practices, there has been less focus on the foundation of police authority — the laws which give police and courts wide discretion to arrest and incarcerate people for offenses that have nothing to do with public safety.

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From 1980 to 2008, the number of Americans incarcerated increased from 500,000 to 2.3 million. Nearly half of the people incarcerated in state facilities are there for nonviolent offenses. Black and Latina/o people make up nearly 60% of all incarcerated people, even though they only make up one quarter of the US population. This increase in incarceration is, in part, due to thousands of new laws at the federal, state and local level that allow police to arrest people for anything from breaches of minor school policies to violations of park rules. Michigan, for instance, has at least 3,102 crimes on the books and has created an average of 45 new crimes annually. California has created 1,000 new crimes in the last 25 years. Cities across the country have also enacted countless new municipal level violations. In New York City alone there are nearly 10,000 laws, violations, rules, and codes that police can enforce.

As a result of the onslaught of new “crimes,” law enforcement priorities have shifted from the investigation of violent crimes to an emphasis on administrative and regulatory violations, including things like public consumption of alcohol, spitting or even wearing sagging pants. It is estimated that the average officer spends 90% of their time dealing with minor infractions that violate local administrative codes and only 10% of their time dealing with violent crimes.

The new laws broadened officer discretion and increased targeting of low-income Black and Latina/o communities. More than 80% of those ticketed in New York City for low-level offenses are Black or Latina/o people. Similar discrepancies exist in the enforcement of drug laws despite the fact that Black and Latina/o communities use drugs at similar rates as white communities. Moreover, nearly 50% of drug arrests are for marijuana-related offenses. One in every 15 Black men and one in every 36 Latino men are incarcerated in comparison to one in every 106 white men.

Police and prisons have become the government’s answer to nearly every social problem in low income communities of color. The criminalization of poverty, mental illness, perceived anti-social behavior, and drug addiction has led to mass incarceration. Increased criminalization also worsens community members’ interactions with police and leaves them vulnerable to the whims of law enforcement, who are often incentivized by quotas and political pressure to arrest and incarcerate as many people as possible. Key to transforming police and community relations is the decriminalization of behavior that does not pose a threat to public safety and an investment in alternative solutions to social and health issues.

In Practice

A number of jurisdictions across the country have decriminalized marijuana—most recently Colorado, Washington and Washington D.C. In Washington, D.C. community organizations gathered sufficient signatures to place the issue on the November 2014 ballot and in February 2015, recreational marijuana use was decriminalized. Now the campaign is focused on ending discrimination through full legalization and refocusing police priorities on more important issues.

In New York City, the prioritization of low-level offenses resulted in more people being arrested for marijuana possession in 2011 than the total number arrested for the offense between 1981 and 1995. Eight four percent were Black or Latina/o, even though most marijuana users in New York are white.

Grassroots advocacy and public pressure have changed the political climate around marijuana throughout the State. Organizations such as VOCAL NY and the Drug Policy Alliance have waged an advocacy, public education, and grassroots organizing campaign. In 2013, a coalition of grassroots organizations hosted a forum for the Brooklyn District Attorney candidates to discuss the connections between the failed war on drugs and mass incarceration and encouraged candidates to consider different approaches to dealing with drug addiction. A similar mayoral forum was hosted, and organizers were able to successfully change the public narrative so much so that both Republican and Democratic candidates publicly supported decriminalizing small amounts of marijuana. Most recently, Brooklyn’s District Attorney said that his office would not prosecute low-level marijuana possessions. However, without legislation, there is no way to enforce non-prosecution or departmental de-prioritization. To guarantee the permanence and effectiveness of any reforms, legislation must ultimately be passed. Advocacy groups across the state are now pushing New York to introduce a bill that would make possession of small amounts of marijuana a violation as opposed to a misdemeanor.

Recently, in recognition of the financial and human costs of the criminalization of low level offenses, a number of city council members in New York City are working to change some of the City’s most common offenses from criminal to civil charges.

Similarly, in November 2014 voters in California passed Proposition 47, which reduces certain drug possession and property crime felonies to misdemeanors and reinvests the estimated $150 million a year in savings to support school truancy and dropout prevention, victim services, mental health and drug abuse treatment, and other programs designed to expand alternatives to incarceration. The Proposition passed as a result of the efforts a coalition of advocates, base building organizations and policy makers from across the state.

Best Practices:

Steps can be taken at the state, city or county level to decriminalize formerly criminal behavior and reduce mass incarceration and abusive police conduct.

  • When possible, municipalities should revise their municipal codes to reclassify current misdemeanors into civil infractions. Municipalities should also ensure that fines associated with civil infractions do not become excuses to incarcerate or financially exploit people. Some of the most common offenses criminalized throughout the 1980s and 1990s include: Consumption of Alcohol on Streets, Disorderly Conduct, Public Urination, Bicycle on Sidewalk, Trespassing (which can include being in a building without identification), Failure to comply with park signs, Unlawfully in parks after hours, Marijuana possession, Littering, Loitering, Panhandling, Transit Offenses (including sleeping on subway, taking up multiple seats, traveling between subway cars, dancing on subway), Loud Music, Truancy and Spitting.
  • Municipalities should change their city charters or local municipal laws to limit the administrative, health, park and tax code offenses that police are responsible for enforcing.
  • States – and where possible, cities – should reduce collateral consequences resulting from all minor offenses, so that individuals’ employment, immigration, parenting, voting, and public housing statuses are not compromised.
  • States should decriminalize marijuana and include provisions that allow possession of marijuana for persons of all ages, allow those who have already been convicted for possession of marijuana to clear their records, fix definitions of what constitutes sale of marijuana so that sharing is not legally seen as selling, and include racial impact analysis and data collection mandates to ensure that enforcement of any existing laws is not racially bias.
  • Cities can also take steps to mitigate the harms of marijuana and other low-level offenses by encouraging police to deprioritize enforcement of these crimes and encouraging local district attorneys to stop prosecuting low-level offenses.
  • Cities and states should reinvest a percentage of any savings resulting from criminal justice reforms in community‐based efforts, prevention, intervention, treatment, education, and other programs that have been shown to promote healthier, stronger and safer communities.