“From Warfare to Welfare: Reconceptualizing Drug Sentencing During the Opioid Crisis”

The title of this post is the title of this new article authored by Jelani Jefferson Exum now available via SSRN. Here is its abstract:

The War on Drugs officially began in 1971 when President Nixon decried drug abuse as “public enemy number one.” The goal of the war rhetoric was clear — to cast drug abuse and the drug offender as dangerous adversaries of the law-abiding public, requiring military-like tactics to defeat. Criminal sentencing would come to be the main weapon used in this pressing combat. In continuation of the war efforts, the Anti-Drug Abuse Act of 1986 was passed under President Reagan, establishing a weight-based, and highly punitive, mandatory minimum sentencing approach to drug offenses that has persisted in some form for the last thirty years. When the Act passed, crack cocaine was touted as the greatest drug threat, and crack cocaine offenders — the vast majority of whom were Black — were subjected to the harshest mandatory minimum penalties. Like any war, the consequences of the War on Drugs has had widespread casualties, including (but not limited to) the devastation of many communities, families, and individuals; the increase in racial disparities in punishment; and fiscal catastrophe in penal systems across the country. What the War on Drugs has not done is eradicate drug abuse in the United States. And now, nearly fifty years after drugs became our national enemy, we have a new face of drug crime — the opioid addict.

The current Administration has recognized that “[d]rug addiction and opioid abuse are ravaging America.” However, rather than ramping up punishment for opioid offenders through lengthier drug sentencing, in October 2017 the opioid crisis officially became a Public Health Emergency under federal law. And while it is largely understood that this was mostly a symbolic statement with little practical effect, the rhetoric is markedly different than it was during the purported crack epidemic of the 1980s. Rather than drug offenders being the enemy, the opioid addict has been cast as the American Everyman, and the opioid addiction problem has become known as the “crisis next door” that “can affect any American, from all-state football captains to stay-at-home mothers.”

Now that the drug emergency is portrayed as destroying wholesome American communities — as opposed to poor, crime-ridden communities of color — the tone has changed from punishment toward treatment and rehabilitation. The National Institute on Drug Abuse (NIDA) at the National Institutes of Health (NIH) has described opioid misuse and addiction as “a serious national crisis that affects public health as well as social and economic welfare.” While we are in the midst of this shift in messaging about drug addiction, it is an ideal time for drug sentencing as a whole to be reconceptualized from use as a weapon — designed to destroy — to having a public welfare agenda. To do this it requires recasting potential drug offenders as community members, rather than enemies. This change in perspective and approach also necessitates understanding drug crime as undeterred by incarceration. The tasks must be to decide on a goal of drug sentencing, and to develop multifaceted approaches to address and eradicate the underlying sources of the drug problem. When this is done, we may find that more appropriate purposes of punishment — rehabilitation and retribution — compel us to think beyond incarceration, and certainly mandatory minimum sentencing laws, as the appropriate punishment type at all.

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