By Dr. Gary L. Deel, Ph.D., J.D., Faculty Director, School of Business
In 2019, I wrote an article series discussing why some criminal laws seem to be less effective than others at persuading social behaviors. This series also covered how decriminalization or legalization of certain activities and choices — including drug use, prostitution, and medically assisted suicide — might create a morality shift in our country.
But in hindsight, it occurred to me that it’s probably important to help readers understand the difference between the terms “decriminalization” and “legalization,” because they have different meanings and different implications. However, their effects in practice may not be so easily distinguishable than their legal definitions would suggest.
The Difference between Legalization and Ethical Behavior
Legalization, as the word implies, is the act of declaring that some conduct or behavior which was previously against the law is no longer illegal in any way, shape, or form. Conduct that is legal carries no risk of penalty in the eyes of the law.
It’s worth noting that just because a given behavior is legal, that doesn’t mean it’s ethical. For example, there are many legal loopholes through which large corporations in the United States manage to pay little or no income taxes.
One instance of this behavior made headlines in 2018 when CNBC reported that Amazon — one of the largest companies in the world — paid no income taxes on its $11 billion in revenue and actually received a $129 million tax rebate from the federal government. Amazon’s tax arrangements in 2018 were perfectly legal as far as we know, though many would argue that this kind of tax avoidance by big business is nonetheless unfair and immoral.
But the inverse is also true. Some conduct which many people may consider ethical or moral may nonetheless be classified as illegal in the eyes of the law. For example, most Americans agree that marijuana is not morally questionable and should therefore be legal, and yet many states still outlaw its use. Fortunately, the laws across the nation seem to be slowly realigning themselves with public opinion, with major shifts occurring as recently as the 2020 election.
The Definition of Decriminalization
By contrast with legalization, decriminalization is the act of reducing the severity of an offense in the eyes of a law. The offense can range from a serious crime to a minor civil wrong.
Consider, for example, the difference between murder and jaywalking in the criminal justice system. Both acts are, strictly speaking, against the law.
However, murder is obviously classified as a felony and viewed as one of the most serious crimes a person can commit, while jaywalking is a minor misdemeanor that is widely accepted and condoned in major cities around the country. As a result, jaywalking carries much milder moral implications by comparison.
Why It’s Important to Understand the Difference Between Decriminalization and Legalization
It is important to understand the distinction between decriminalization and legalization, because different lawmakers and social leaders argue for different social changes in line with these terms.
For example, USA Today recently reported that Vice President-elect Kamala Harris is in support of decriminalizing prostitution, based on comments she made in a 2019 interview. So what is Harris ostensibly arguing for here?
Through the decriminalization argument, she is essentially proposing that full legalization might not be appropriate for prostitution, but a reduction in offense classification from serious crime (or felony) to minor civil wrong (or misdemeanor) might be a better way to address the complicated issues involved in the sex industry, especially — as Harris noted — when the discussion involves truly consensual arrangements made by competent adults free from coercion of any kind. I discussed this issue thoroughly in my 2019 article series.
But reasonable questions emerge here: Why is Harris advocating decriminalization instead of full legalization? And what might the actual differences be in practice? In the second part of this article series, I’ll attempt to answer these questions.