Although there is no universal definition of “decriminalization,” approaches to decriminalization largely focus on modifying how conduct is sanctioned or punished. This Article argues that there is a need to broaden approaches to decriminalization beyond sanctions and give more consideration to the other ways in which criminalization fosters state control over civilians—including police authority and discretion. Decriminalization should restrict opportunities and methods for the state to control civilians in ways that (1) facilitate their entry into, or continued contact with, the criminal justice system, and (2) leave them vulnerable to state-imposed privacy, liberty, dignitary, and physical harms that arise from contact with the criminal justice system and actors. These goals are undermined when decriminalization does not capture police authority and discretion.
To illustrate these points, this Article focuses on the most common form of civilian interaction with the police—the routine traffic stop. Through original research, this Article shows that since 1970 twenty-two states have decriminalized minor traffic violations by removing criminal sanctions, reclassifying the violations as noncriminal offenses, and streamlining their adjudication to the administrative realm. These decriminalization reforms have centered on modifying sanctions and have rarely restricted police authority and discretion in routine traffic stop settings.
This Article then exposes and examines an asymmetry in the criminal justice process that emerges from sanction-focused approaches to decriminalization, and appears in traffic decriminalization trends. Specifically, the focus on sanctions in traffic decriminalization reforms has enabled states to retain access to an expanding set of crime-fighting tools via the policing of decriminalized traffic violations to further their crime-control policies (such as drug law enforcement). This access, however, comes at the expense of funneling drivers and passengers into the criminal justice system, and making all drivers—whether innocent or guilty of nontraffic crime—more vulnerable to privacy, liberty, dignitary, and physical harms that stem from policing in traffic settings. These results, which advocates of decriminalization should seek to avoid, especially affect people of color and other minority communities that are more vulnerable to concentrated police surveillance and pretextual traffic stops.62-3-3