Negotiating Decriminalization: Carceral Power and Legal Change

In recent decades, decriminalization has gained renewed salience on the criminal justice reform agenda. This article considers the promises and pitfalls of the strategic reliance on decriminalization as a vehicle for scaling back the carceral state. Building on empirical and theoretical insights drawn from various policy domains and national contexts, this analysis sheds light on the double-edged consequences of different variants of de jure and de facto decriminalization, including legislative, judicial, and prosecutorial mechanisms of removing the criminal label from certain forms of behavior. Decriminalization reforms provide opportunities to experiment with alternatives to incarceration and demonstrate their benefits to previously skeptical audiences. However, in many cases, they widen the social control net, shore up the legitimacy of the carceral state, and perpetuate the very institutional problems they aim to address.