Differences Between Legalization and Decriminalization

*Originally posted in June 2021, this is reposted after discussion this week on a similar topic.

Written by: DAVID M JOLLEY, J.D.

Legalization

Legalization is simply the act of legalizing or making something legal that was previously illegal. This is typically done through legislation, whether on a state or federal level. The recreational use of cannabis has been legalized in 18 states plus the District of Columbia (D.C.), and 36 states have legalized cannabis for medicinal use.     

Proponents argue that legalizing all drugs (not just cannabis) would save billions of dollars spent every year on law enforcement, lead to a reduction in crime, generate a huge tax revenue all while crippling the black market sale of these drugs.  

Opponents of legalization argue the availability of these drugs would lead to more people trying them, that wouldn’t have otherwise. Consequently, more people will become addicted, which could potentially destroy families, increase crime, and have detrimental effects on drug users and society. In addition, if the government were to legalize and tax drugs too heavily, the illegal market could start selling their product at a much lower price and  itt wouldn’t be subject to any regulation guaranteeing their safety.

Decriminalization

By contrast, decriminalization is the action or process of ceasing to treat something as illegal or as a criminal offense. In the case of cannabis, decriminalization means a person will not be prosecuted or jailed for possession under a certain amount, but it is technically still considered illegal. The illicit selling and manufacturing of the drug is still illegal.

Proponents argue that decriminalizing drugs would save money by reducing jail and prison costs, allowing law enforcement to focus on more serious crimes, and reducing the stigma associated with drug use and addiction. Critics argue decriminalizing drugs would just lead to more drug dependency and crime, however data from the U.S. and around the world would suggest otherwise.  

Since Portugal decriminalized drug possession in 2001, the amount of people using drugs has remained the same, but arrests, incarcerations, disease, overdoses and other harms are all down.  In the U.S., 26 states plus the District of Columbia have decriminalized the possession of small amounts of cannabis. meaning there is no jail time if convicted and only a fine. In addition, eight states have introduced some form of drug decriminalization for other drugs, such as psilocybin mushrooms. In 2020, Oregon became the first state in the U.S. to decriminalize not just cannabis, but all drugs, including heroin, cocaine and methamphetamine. While still illegal to sell, the simple possession of these drugs will not result in jail time.

Critics argue decriminalization will just lead to more drug dependency and crime, however, there is no indication this is true. Data and studies have shown treating drug dependency and addiction as more of a health problem instead of a criminal one has been a much more effective approach.  While the legalization of all drugs at this point may be a little haphazard for some, the benefits of simply decriminalizing some (if not all) drugs as Oregon has, far outweigh the costs to society and our criminal justice system by criminalizing them.