Transforming Drug Laws in the United States: From Retributive to Restorative Justice


Capturing American Values to Transform the Issue

The potency of the War on Drugs lies in the common misconception that it protects American morals and values. However, policies which criminalize drug users, and which historically originated from racial and ethnic discrimination, couldn't be further from American morals and values. Surely public health factors somewhere into American morals, values, and goals. In order to transform the American public's perception of drugs in the United States we must implement a public health approach to illegal drugs. A public health approach to drugs in the United States will offer hope and opportunity to those suffering the most serious drug use problems rather than punishment and despair.

However, even formal documentation of the effectiveness of public health approaches to illegal drugs such as needle exchange programs and maintenance therapies have failed to transform Federal policy, which bans funding for such programs because they send out the wrong message, appearing to condone drug use. It becomes obvious that the perception of drug users as criminals who should be feared and punished has pervaded our society and system of law. If the American public views drug use as tantamount to criminal action, then politicians and legislators have to consider these opinions when drafting and voting for laws. Drugs and drug use have such a strong stigma that the United States has dehumanized an issue which is completely human, as it involves the health and welfare of so many Americans and people throughout the world. We must look to transform the way we, as Americans, view drugs and drug use by re-framing the context in which drugs are viewed and by joining together to lobby elected representatives.

A Little Bit of Conflict Transformation

John Paul Lederach has introduced the method of conflict transformation to change the framework in which we view conflict resolution. His perspective understands "peace as embedded in justice." Lederach emphasizes the "importance of building right relationships and social structures through a radical perspective for human rights and life, advocating for nonviolence as a way of life and work."

Lederach suggests that "conflict transformation is a way of looking as well as seeing." He searches for the multiple layers of the conflict, the immediate situation, the underlying patterns and context, and finally the conceptual framework, in order to move towards a positive change.

In seeking the existence of a conceptual framework, and ways to change it, Lederach suggests the framework through the model of a human body. A model of which we have adopted for drug policy and transformation. The head of the model is the "attitudes, perceptions, and orientations brought to conflict transformation." It requires a "willingness to create and nurture a horizon that provides direction and purpose." The heart represents  the human relationships, as they are central to conflict, also represents the life giving opportunities as conflict allows us to take notice of what goes on in our own lives. The hands symbolize the constructive change that must result in conflict transformation. Finally, the legs and feet represent where the "journey hits the road," as a point of action in transformation.  

A Model of Change

(The ideas expressed in this column are borrowed from Ellen Benoit)
The government has a responsibility to balance  the maintenance of social order with the protection of public health. The methods by which the government allocates its resources for that balance, is full of potential for a positive transformation of drug legislation.  Ellen Benoit suggests that the deviance of drug use, and its development as a criminalized problem, is a politically and socially developed stigma in America. The history of drug policies in the United States and Canada supports this theory, and also sheds light on the prospect of tranformation in the United States. In the 1920's, "both countries adopted policies of criminalization, costing medical establishments juristidiction over narcotics and imprisoned large numbers of citizens for the use and posession or designated substances." As the climate of the welfare-state expanded in the 1970's, both states shifted their focus towards health and well-being, rather than retributive justice. Throughout the 1980's, Canada maintained the perspective that focused on the health aspect of drug abuse, while the United States shifted back towards an emphasis on punishment.

In a capitalist setting where "free will" dominates the mentality of the majority of society, an emphasis on individual self-reliance has developed to commonality. When an issue, such as drug abuse, is viewed as deviant, it resultingly becomes viewed as personal problem, or an individual flaw.

Benoit notes that " more generous welfare states are likely to have less punitive drug policies because universal access to health care can be expected to subsume drug-abuse treatment and even prevent some of the conditions that are associated with drug abuse, trafficking, and other drug-related crime."

In the 1980's an increased conservative political climate resulted in U.S. former President Reagan to reduce federal health care spending by 25%, and drug-treatment specifically being reduced by 30%. This, along with an increased effort in decreasing the supply-end of drug-use, increased efforts in the illegality of drug trafficking were born, stiffening punitive consequences of drug offenders.

While the conservative change was occuring politically in the United States, a shift was occuring in Canada's drug policy, but the changes did not result from newly enacted legislation. The Supreme Court of Canada rejected the enaction of strict guidlines for drug sentences, through the Charter of Rights and Freedoms. The more flexible system for drug offense punishments gave freedom to physicians to fight for their jurisdiction over narcostics. This jurisdiction in combination with socialized health care allowed for treatment to become a significant part of Canadian drug policy. 

Canada's drug policy provides a model for the transformation of drug policy in the United States. As Canada exemplifies through its focus on health care involvement in narcotics policy, the United States has the potential to shift its focus from one of punishment, to one of restoration.

About the Opposition

Jayne Bigelsen, former Director of Legislative Affairs for the New York City Bar Association