"...the "War on Drugs" has proven to be a powerful weapon to mitigate the effectiveness of the 1965 Voting Rights Act..."

Long, but well worth the read.... For me, the simple fact was that in all the years I struggled with my own addictions to drugs, never once did the fear of prosecution stop me from using them. I honestly believe that the damage to me from the "war" hurt me far more than any of the direct damage I received by using the drugs themselves. Furthermore, when I was ready to quit and began looking for help, choices were limited, backlogged and damned near impossible to access. In my opinion, the war on drugs has been a monumental failure that has done far more harm to all of us that it has helped.....

2007 The University of Louisville University of Louisville Law Review Fall, 2007 46 U. Louisville L. Rev. 177 NOTE: "The War on People": Reframing "The War on Drugs" By Addressing Racism within American Drug Policy through Restorative Justice and Community Collaboration*

*This Note received the award for Best Note Honorable Mention for Volume 46 of the University of Louisville Law Review.

Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly affects all indirectly. Rev. Dr. Martin Luther King, Jr.

I. Introduction

One of every three African-American men between the ages of twenty and twenty- nine are under the control of the criminal justice system-in prison or jail, on probation or parole. ⁿ² At the end of 2005, there were 3,145 African- American male prison inmates per 100,000 African-American males in the U.S., compared to 1,244 Hispanic male inmates per 100,000 Hispanic U.S. males and 471 white male inmates per 100,000 white U.S. males. ⁿ³ By [*178] December of 2000, there were fewer African-American men in college than there were in prison or jail. ⁿ⁴ In 1999, African-American women were imprisoned at a rate eight times greater than white women and were ten times as likely to be reported to child welfare agencies for prenatal drug use even though the same proportion of African-American and white women use drugs while pregnant. ⁿ⁵ By 2000, African-American children were nine times as likely as white children to have at least one parent in prison. ⁿ⁶ Scholars largely attribute these disparities to be the result of U.S. drug policy championed as the "War on Drugs." ⁿ⁷

The "War on Drugs" is a war against people, particularly African-Americans. While African-Americans only constitute 12% of the U.S. population and 13% of the country's total drug users, African-Americans account for 33% of all drug-related arrests, 62% of drug-related convictions, and 70% of drug-related incarcerations. ⁿ⁸ However, the true insidiousness of the "War on Drugs" is its role as an effective weapon destroying the infrastructure of African-American communities through the steady reimplementation of Jim Crow. With forty-six states implementing disenfranchisement laws, the "War on Drugs" has proven to be a powerful weapon to mitigate the effectiveness of the 1965 Voting Rights Act. ⁿ⁹ As a result of the "War on Drugs," 13% of all African-Americans have lost their right to vote due to felony convictions. In a few Southern states, African-American disenfranchisement is as high as 33%. ⁿ¹⁰ Beyond loss of political voice and power, the "War on Drugs" has crippled the economic infrastructure of many African-American communities, severely limiting opportunities for employment and the ability to obtain loans for education or enterprise. ⁿ¹¹ Further, with parents incarcerated, children are left to [*179] fend for themselves and their siblings, resulting in many youth turning to gangs for acceptance as well as involvement with drug use and/or trafficking. ⁿ¹²

Through the "War on Drugs," politicians and the media have extensively portrayed drug use as a criminal issue requiring a "get tough" approach of stiffer penalties and stricter sentencing guidelines. ⁿ¹³ This mentality has resulted in epidemic incarceration, increased recidivism, massive budget shortfalls, and the reinstitutionalization of Jim Crow leaving both individuals and whole communities devastated. ⁿ¹⁴ "[C]aught in an inescapable network of mutuality," ⁿ¹⁵ America can no longer afford to frame drug use solely as a criminal issue warranting retributive solutions. Rather, through collaborative efforts, drug use must be reframed within a broader restorative framework that incorporates medical and social concerns as well as considers the effects of drug use on individuals and communities. New policies must give offenders the opportunity to alter behavior, accept responsibility, make restitution, and enter rehabilitative, educational and employment programs.

Part II of this Note briefly examines the historical intersection of race and U.S. drug policy as it relates to the regulation of cocaine. Part III explores how the "War on Drugs" is currently being framed through a retributive lens in which a "get tough" mentality has resulted in stiffer penalties, stricter sentencing guidelines, widespread incarceration, the criminalization of poverty and the reinstitutionalization of Jim Crow. Part IV considers the potential for reframing U.S. drug policy within a broader restorative framework that incorporates medical and social concerns generating opportunities for offenders to alter behavior, accept responsibility, attend rehabilitation programs and reenter communities. Part V explores how collaborative problem solving can promote reframing drug policy as well as create holistic solutions. Part VI explores potential barriers to collaboration and analyzes how reframing and collaboration have successfully promoted restorative drug initiatives in Oklahoma.

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II.Examining the Historical Intersection Between Race and U.S. Drug Policy

To comprehend the racism within current U.S. drug policy and the enormous impact that the "War on Drugs" has had on communities of color, it is helpful to begin with a sociohistorical examination of the intersection between race and U.S. drug policy as it pertains to the regulation of cocaine. ⁿ¹⁶ Throughout the 18th and early 19th centuries the use of cocaine was predominantly viewed as a healthcare issue and legalized cocaine was widely distributed as a painkiller and a medicinal remedy for illnesses ranging from hay fever to alcoholism. ⁿ¹⁷ Present in the original formula for Coca-Cola and other popular drinks of the late 19th century, cocaine-based beverages were advertised as offering an agreeable taste with "wonderful medicinal properties, and the power of restoring vitality and raising the spirits of the weary and debilitated." ⁿ¹⁸

Government regulation of cocaine first arose in 1906 when doctors, fearing that patients did not understand the ingredients of certain medicines, successfully lobbied Congress to pass legislation requiring that narcotics be listed on medicine labels. ⁿ¹⁹ However, under such regulation, cocaine still continued to be widely used. The legality of cocaine was first questioned as a result of tumultuous conflicts in the early 1900s that were caused by a racial split in the labor market and social divisions based on class, racial, cultural and political differences. ⁿ²⁰ Looking for "comforting reasons behind the country's societal woes," white America attributed the nation's "vexing complications" to drug use by minority populations and cocaine use by freed slaves became white America's primary scapegoat. ⁿ²¹

While the public had long accepted cocaine use for medicinal purposes, linking the drug to African-Americans created a rampant fear that the stimulant would lead to a black rebellion resulting in attacks on white society. ⁿ²² Despite the lack of empirical evidence, white southern leaders fueled public fear by claiming that "Negro cocaine fiends" were terrorizing the South and that [*181] cocaine would cause the freed black to forget "his place" within segregated society. ⁿ²³ Myths about cocaine-induced black men raping white women spread throughout the American South and some whites even feared that cocaine gave blacks superhuman strength making them impervious to bullets. ⁿ²⁴ Indeed, "fear of the cocainized black coincided with the peak of lynchings, legal segregation, and voting laws all designed to remove political and social power" from African-Americans. ⁿ²⁵

Capitalizing on the public's fear and racial biases, the media portrayed African-Americans as chronic cocaine abusers, thus encouraging whites throughout America to favor criminalization of cocaine as a method to control the "Black threat." ⁿ²⁶ Responding to the public's outrage, Congress passed the Harrison Act, which required strict recordkeeping of narcotics and made it illegal to sell cocaine without a prescription. ⁿ²⁷ As fear and intolerance increased from 1920 to 1940, Congress continued to bolster federal police power to enforce narcotics prohibitions and drafted strict criminal penalties for drug involvement that in some cases included capital punishment. ⁿ²⁸

During the late 1950s and 1960s, public sentiment toward drug use began to soften bringing hope that drug abuse would no longer be defined as an exclusively criminal problem, but again as a medical and social problem requiring rehabilitation. ⁿ²⁹ Examining the intersection between drug use and criminal, social and medical concerns, the Supreme Court struck down a state statute that made the "status" of drug addiction a criminal offense; the statute allowed the offender to be prosecuted "at any time before he reforms" and upon conviction jailed up to ninety days, which the Court held was cruel and unusual punishment. ⁿ³⁰ Similar to an alcoholic, the Court reasoned that, "it is generally conceded that a narcotic addict . . . is in a state of mental and physical illness." [*182] Reciting an earlier decision, Linder v. United States, ⁿ³¹ the Court recognized that "persons addicted to narcotics are diseased and proper subjects for medical treatment." ⁿ³² Citing extensive medical and mental health reports on the complexities of addiction and the effects of drug use on individuals and communities, the Court stated, "imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be cruel and unusual punishment for the 'crime' of having a common cold." ⁿ³³ The Court concluded that in the "age of enlightenment" penalizing an illness rather than providing medical care for it is a "barbarous action." ⁿ³⁴

III.The Framing of U.S. Drug Policy From the 1970s to Present Day

A.Moving From Rehabilitation to Retribution

Framing is an interpretive process that involves shaping, focusing and organizing meaningful chunks of information by placing them into perspective with something already familiar. ⁿ³⁵ When people frame conflicts, they create interpretations of what the dispute is about and why it occurred, protect and justify their stance on the issue, attribute responsibility and blame, and envision potential outcomes. ⁿ³⁶ The American public's framing of drug issues from the 1970s to the present day has largely been shaped by extensive media coverage of crime as well as the political discourse focusing on retributive solutions to drug abuse.

Driven largely by economic considerations, television coverage of crime has reached historic levels despite the fact that crime rates "fell precipitously" throughout the 1990s. ⁿ³⁷ As many members of the public continue to rely upon the media for news and knowledge, extensive media coverage of crime has inflated the public's fear of crime, increased public perceptions of crime frequency, and fueled a political agenda that rewards candidates whose [*183] promises to "get tough" entail focusing on retributive punishment. ⁿ³⁸ Capitalizing on public fears and supplementing the media's focus on crime, both Republicans and Democrats have sought to outdo one another by proposing draconian anti-crime initiatives that have become necessary to win "political victory in America." ⁿ³⁹

As crime has taken center stage in the press, politics and the public interest, U.S. drug policy has moved to the forefront of concerns in American society. In response, politicians have rigidly framed America's drug policy as a zero- sum ⁿ⁴⁰ issue using a series of totalizing metaphors that leave no room for discourse or dissent. Beginning in the late 1960s and early 1970s, politicians campaigned by vowing "to get tough" on crime. ⁿ⁴¹ This platform put an end to the rehabilitative model, which was quickly replaced by retributive goals focusing on "crime prevention through incapacitation." ⁿ⁴² Embracing retribution over rehabilitation, President Nixon described his domestic drug agenda as "The War on Drugs," a phrase that quickly entered popular discourse and has been used ever since by politicians seeking to frame domestic drug policy. ⁿ⁴³ By symbolically framing the drug problem in terms of a "War," Presidents Nixon, Reagan and George H. Bush addressed the American drug problem through militaristic terms that included: "soldiers, enemies, mobilize, deployment, battle plan, conquer," and "ultimate victory that vanquishes the enemy." ⁿ⁴⁴ Further, in championing the "War on Drugs," President George H. Bush declared, "All of us agree that the gravest domestic threat facing our nation today is drugs." ⁿ⁴⁵

By portraying drug issues as the number one threat to America, politicians and the media have framed the issues within the context of a national emergency as to evoke a public response calling for a "War" that: (1) warrants retributive legislation; (2) promotes stiff drug penalties; and (3) encourages strict sentencing guidelines, increased incarceration and the removal of voting rights. Prosecutors have capitalized on these "War" images to inflame jurors to [*184] convict or impose the harshest penalties. ⁿ⁴⁶ Further, federal judges who have questioned this draconian framework, which portrays drug users as the enemy from within, have been threatened with impeachment and forced to reverse judgments regarding constitutional rights. ⁿ⁴⁷ Consequently, under the metaphor of "War," any dissent from these harsh policies becomes equated with treason.

B.The Retributive Response to the "Crack Story"

Although use of powder cocaine among affluent whites soared throughout the 1970s and early 1980s, the modern "War on Drugs" did not gain widespread public support and funding until crack "hit the streets." ⁿ⁴⁸ Since crack-a crystallized rock form of cocaine that is pharmacologically identical to powder cocaine-costs significantly less than powder cocaine, the drug has been more widely accessible to poor urban minorities. ⁿ⁴⁹

The novelty of crack in the 1980s resulted in widespread public fear and myths of crack being an instantly addictive "demon" drug that led to violence and was different from every other drug. ⁿ⁵⁰ Though the first national news articles on crack went relatively unnoticed in 1984 and 1985, by the November 1986 elections, at least 1,000 articles on crack had appeared in the national news media. ⁿ⁵¹ Further, leading up to the 1986 fall election, all three major networks aired documentaries that presented crack in the "direst terms" and on September 2, 1986, CBS aired the program "48 Hours on Crack Street," which [*185] drew 15 million viewers, making it the most watched documentary in television history. ⁿ⁵² Fueling public hysteria, the media and politicians framed crack cocaine as public enemy number one and labeled crack as a "scourge of the inner-city" and an epidemic "as pervasive and dangerous in its ways as the plagues of medieval times." ⁿ⁵³

Following the increased media coverage and in direct response thereto, Congress methodically ratcheted up the penalties for drug-related offenses throughout the 1980s and 1990s. ⁿ⁵⁴ On October 27, 1986, just prior to the November elections, Congress responded to the "crack story" by enacting the 1986 Anti-Drug Abuse Act, which resulted in "a 100:1 quantity ratio between the amount of crack and powder cocaine needed to trigger certain mandatory minimum sentences for [drug] trafficking." ⁿ⁵⁵ Declaring that drugs were "a national security problem," the majority of the funding authorized under the 1986 Act "went to law enforcement, prisons, interdiction, and other supply reduction efforts rather than treatment or prevention." ⁿ⁵⁶ To many in Congress who vowed to get tough on crime, the 1986 Act acted as the perfect dovetail to the 1984 Sentencing Reform Act, which promulgated federal sentencing guidelines, abolished parole and sharply limited "good time" for prisoners. ⁿ⁵⁷

In 1988, Congress amended the Anti-Drug Abuse Act by enhancing the mandatory minimum regime adopted two years earlier." ⁿ⁵⁸ Scholar MaryBeth Lipp explains:

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Most troubling, Congress increased penalties for "certain serious crack possession offenses," while retaining the original penalties for possession of all other controlled substances. The amendments required at least five years' imprisonment for a first-time crack offender who possessed more than five grams of the drug, while a first-time offender possessing more than five grams of heroin or cocaine could be imprisoned up to one year. ⁿ⁵⁹

Similar distinctions between "white suburban" powder and "inter-city" crack cocaine appeared in many state statutes. ⁿ⁶⁰ The combination of sentencing guidelines with mandatory minimums "dramatically reduced the power of judges and prison officials over an individual offender's sentence." ⁿ⁶¹

As a result of the media coverage and political discourse surrounding the "War on Drugs," between 1985 and 1989, the percentage of Americans who believed that drugs were the most serious problem facing the nation rose from 2% to 38%. ⁿ⁶²

Seeking additional public support to gain even greater funding for the "War on Drugs," President George H. Bush capitalized on public fears of a crack scourge by staging a DEA crack cocaine bust outside of the White House in a television commercial which suggested that crack must be stopped before it flows out of the inner-city and into areas of white affluence. ⁿ⁶³ As crack cocaine [*187] was repeatedly framed as a "scourge" and "epidemic," crack users, predominately people of color, were compared to "loathsome disease carriers," indestructible "roaches" and plague-carrying vermin. ⁿ⁶⁴ As public fear grew into hysteria, the media reported on black crack whores, who produced innocent and malnourished "crack babies," that were deemed to be permanently damaged and whose presence would threaten the future order of society. ⁿ⁶⁵ The hysteria surrounding the "crack baby" resulted in the passage of harsh legislation aimed at punishing mothers with incarceration during and after pregnancy, as well as removing their children. ⁿ⁶⁶

Although smoking crack during pregnancy is clearly not healthy for mother or child, recent medical studies have proven that much of the hysteria regarding permanent damage, low birth weight and small head circumference among "crack babies" was largely exaggerated. ⁿ⁶⁷ More recent medical studies now attribute such conditions to be largely caused by poverty, which consistently results in maternal malnourishment, increased alcohol and tobacco use, exposure [*188] to domestic violence, and a lack of prenatal care. ⁿ⁶⁸ However, by labeling them as "crack babies," as opposed to "poverty babies," the media and politicians were able to apportion blame to irresponsible black women labeled as degenerate "crack whores," as opposed to attributing fault to a failure in the American social structure. ⁿ⁶⁹ Scholar Kathleen Sandy explains, "the 'crack baby' label helps American society rationalize their choice of punishment of these women and assuages their feelings of guilt from leaving these women in hopeless situations." ⁿ⁷⁰

C.Crack vs. Powder Cocaine: Examining "The War on Drugs" as Framed Through a Race-Based Retributive Lens

Through dehumanizing those involved with crack and framing crack use as a rapidly spreading disease among urban minority populations, white policymakers were able to distinguish crack cocaine from other more affluent drugs including powder cocaine, a drug of choice in suburban white society. Crack as a cheap drug was "one that White America could easily distance itself from," and quickly became associated with African-Americans, who the media consistently portrayed as the enemy in the "War on Drugs" throughout the 1980s and 1990s. ⁿ⁷¹ Further, in distinguishing crack as a drug used by poor blacks from the powder cocaine used in affluent white culture, politicians received little public outcry when they implemented stiffer penalties, stricter sentencing guidelines, and increased incarceration against those involved with crack. ⁿ⁷² Furthermore, making the above distinction allowed politicians frustrated by public welfare to criminalize poverty through implementing a "hundred fold disparity between sentences for conviction of possession of equivalent amounts of crack cocaine and powder cocaine, despite the fact that there is no pharmacological difference in the effect it has on the body." ⁿ⁷³

Although powder cocaine has been widely used by white America for medicinal or recreational purposes for centuries, cocaine use "morphs into a mythical demonic force" when associated with black America. ⁿ⁷⁴ By framing [*189] drug policy in terms of "War" and specifically equating crack to a "scourge" and "epidemic," politicians have forged a rigid framework in which drug users, particularly people of color, are categorized as subhuman enemy combatants who can only be stopped through draconian anti-crime initiatives.

The epidemic incarceration resulting from these initiatives has created a system of segregation aimed at "separating out, subjugating, imprisoning, and destroying substantial portions of a population based on skin color." ⁿ⁷⁵ By making minor crack possession a felony, policymakers quietly removed voting rights from 13% to 30% of African-Americans. ⁿ⁷⁶ With hundreds of thousands imprisoned, a quiet reimplementation of Jim Crow has resulted in communities of color losing political participation and being trapped in inescapable cycles of poverty, homelessness, unemployment, crime and gangs. ⁿ⁷⁷

Although the court was once a primary forum to explore and dissect the complex intersection of drug use as a medical, social and criminal issue, by the late 1980s and early 1990s courts throughout the nation had been legislatively required to adopt the "get tough" retributive approach. For example, in Harmelin v. Michigan, ⁿ⁷⁸ a Michigan state court sentenced the defendant, who had no prior felony convictions, to life imprisonment without the possibility of parole pursuant to a Michigan statute that required this sentence for possession of more than 650 grams of any mixture containing cocaine. ⁿ⁷⁹ Although sharply divided, with four dissenters believing that the sentence was unconstitutionally disproportionate to the offense, the U.S. Supreme Court in a plurality opinion affirmed the decision to uphold the sentence. ⁿ⁸⁰ Further, in another case, State v. Russell, ⁿ⁸¹ a Minnesota state court struck down the 10-1 disparity in punishment between powder and crack cocaine on state constitutional grounds. ⁿ⁸² The Minnesota legislature responded by increasing the penalties for powder cocaine to match those for crack cocaine. ⁿ⁸³

Stuck in a "get tough" mentality, American society remains blind to the fact that tougher drug penalties have not reduced drug sales or use, but instead increased the pervasive hopelessness felt by communities facing the already harsh [*190] realities of poverty and racism. ⁿ⁸⁴ As communities of color continue to be economically, politically and socially decimated by Jim Crow-esque drug policies, the cycle of urban minority drug use continues to escalate as human beings turn to drugs as a therapeutic escape from their bleak reality. ⁿ⁸⁵

IV.The Need for Reframing U.S. Drug Policy: Moving Toward Restorative Justice

Stiff drug penalties and harsh sentencing guidelines have resulted in American prisons becoming severely overpopulated, leaving many states with enormous budget deficits and little choice but to reframe their approach to drug policy. ⁿ⁸⁶ Reframing requires stepping back, observing and then reflecting upon the fact that there is more than one way to view drug issues. ⁿ⁸⁷ Reframing U.S. drug policy will require government entities, the media and the public, to acknowledge that drug use is more than just a criminal issue requiring us to "get tough," but also a serious medical and social issue.

Acknowledging that overcrowding of prisons is largely a result of recidivism by drug offenders, ⁿ⁸⁸ society's reframing of drug use must embrace medical solutions, which address the complexities of addiction and the potential for drug- related rehabilitation. Further, in reframing drug use as both a medical and social concern, as opposed to solely a criminal issue, society should be prepared to address the intersection of drug use with other multifaceted social problems including mental illness, domestic violence, prostitution and HIV/AIDS. ⁿ⁸⁹

In reframing drug use as a social issue, American society must acknowledge how the racism within current drug policy has perpetuated draconian anti-drug initiatives and functioned to remove political voice from communities of color. Further, society must be willing to explore how poverty [*191] has furthered drug use in communities of color. ⁿ⁹⁰ Reframing also necessitates that the public explore how cognitive errors of availability ⁿ⁹¹ and overgeneralization ⁿ⁹² of crime and drugs portrayed in the media has increased public fear and led to unquestioning public acceptance of punitive drug policies. Within this construct, lawyers and public defenders should begin to reframe their understanding of client representation so as to "view a case in the context of the client's life and larger community problems that resulted in criminal justice intervention." ⁿ⁹³ Framing advocacy through a lens of "whole-client representation" enables lawyers to work holistically across disciplines in order to help clients make the essential life changes necessary to avoid recidivism. ⁿ⁹⁴

Acknowledging drug use within a larger framework of social, medical and legal concerns allows society to move beyond the rigidly-framed retributive model by understanding the effects of drug use on individuals, families, communities and the nation as a whole. Realizing that communities shape a nation, reframing requires public acknowledgement that "for every member of the community who is a victim of crime, there is an accused person who has a family in the community." ⁿ⁹⁵ When drug use is framed as a communal issue of justice, as opposed to a state focused criminal issue, society can begin to explore the potential for restorative justice initiatives-which give offenders [*192] opportunities to alter behavior, accept responsibility and enter rehabilitative, educational and employment programs.

V.Reframing U.S. Drug Policy Through Community Collaboration

To promote reframing of U.S. drug policy, interested parties should begin by engaging other community stakeholders in a meaningful dialogue through a process of collaborative problem solving. Collaborative problem solving involves two aspects: "(1) cooperation or negotiation among interested stakeholders to reach outcomes to which all the parties agree; and (2) a goal of finding solutions to the problems that the parties agree to address or that cause the conflict." ⁿ⁹⁶

Collaborative problem solving aimed at drug policy reform requires identifying key stakeholders within the legal and social community. Within the legal community, local and state policymakers, prosecutors, judges, police and probation officers, social workers and public defenders should engage in a discussion addressing why individuals in their community participate in drug use, what is the collective impact of drug use on the community, and how helping individuals involved with drugs can promote public safety and reduce public fear. ⁿ⁹⁷ Addressing these issues, the Washington Defender Association's Racial Disparity Project has worked successfully with lawmakers, judges, prosecutors, and police to counter socioeconomic disparities and improve race relations by modifying laws, policies and legal practices that disadvantage racial groups in the community. ⁿ⁹⁸ Accordingly, engaging public officials in these conversations can result in important insights regarding financial and political limitations as well as generate powerful alliances that promote an understanding among parties to encourage reframing. ⁿ⁹⁹

In conversing with community stakeholders, interested parties should discuss these issues with a variety of groups including, but not limited to: minority community leaders; teachers and scholars; news reporters and journalists; local businesses; and people with broad social and cross-cultural contact, such as bartenders. Working with community members is essential to [*193] reframing the public's perception of drugs as well as can create strategic alliances conducive to the mobilization and pooling of resources. For example, in reaching out to the local community, the Portland Public Defenders Office successfully collaborated with local religious and charitable organizations, entities found "appealing" to judges and court administrators, to provide holistic services to clients. ⁿ¹⁰⁰

If collaborating in a large group, parties must remain mindful of the financial and logistical costs of collective action, the possibility of free-riders, the potential for opting-out and the danger of inter-group polarization caused by groups taking more extreme positions to set themselves apart. ⁿ¹⁰¹ To minimize these issues it is helpful to agree on the processes of collaboration upfront. Further, it is essential to target which entities to approach and how they should be approached. Accordingly, most successful collaborative compromises have been crafted when parties exhibit a humble willingness to listen to one another. ⁿ¹⁰²

Two major collaborative components essential to reframing and reforming drug policy are public education and involvement in the political process. Educating the public with reliable knowledge and information about draconian drug penalties and the racial biases underlying current drug policy can be an effective and powerful tool to generate the activism needed to persuade political officials to move beyond the current retributive framework. In seeking to educate the public about the injustices of the "War on Drugs," public defenders and other interested parties have been "teaching in local public schools, [*194] community centers, senior citizen centers, jails, and local colleges." ⁿ¹⁰³ Further, as three-strikes laws and mandatory-sentencing minimums have been implemented, defense attorneys and other proponents for drug policy reform have found themselves actively lobbying policymakers, testifying at legislative hearings and supporting political candidates that favor restorative justice initiatives. ⁿ¹⁰⁴ Scholar Cait Clarke explains, "some defense lawyers have become valued participants in policymaking and public education because they provide unique perspectives to justice debates as a result of working closely with clients and their families." ⁿ¹⁰⁵

VI.Reforming U.S. Drug Policy: The Barriers and Breakthroughs of Collaboration

Collaboration, which consists of education, public participation, community organizing, coordinating across professional disciplines, developing strategic relationships through dialogue, reshaping perspectives, and crafting holistic solutions to drug abuse, requires hard work and planning that can be upset by many barriers. The most difficult barrier will involve reframing drug policy against the current sociopolitical backdrop in which the media continues to focus extensively on crime, feeding a public fear that rewards candidates who vow to "get tough" on drugs. ⁿ¹⁰⁶ As previously discussed, collaborative efforts designed to generate community dialogue and educate the public on how common cognitive errors have inflated fear of crime and resulted in punitive drug policies are essential to overcoming this obstacle.

Another major barrier to reform comes from the fact that many of those stuck in a retributive mindset distrust restorative justice's emphasis on individual and communal healing, forgiveness, mediation, compassion, mercy and reconciliation, which many equate with being soft on crime. ⁿ¹⁰⁷ Educating the public on the social and economic benefits of restorative justice, as well as emphasizing the role of personal accountability within restorative justice, has [*195] proven to be successful when encountering this attitude. ⁿ¹⁰⁸ Further, many churches and communities of faith are strategically positioned to address such public misperceptions about restorative justice. ⁿ¹⁰⁹ Finally, restorative justice-emphasizing primarily individual solutions based on a subjective understanding of harm within a specific community-often gives rise to concerns about uniformity of punishment. ⁿ¹¹⁰ Yet, as demonstrated below in discussing Oklahoma Community Sentencing, concerns about uniformity can be minimized by clearly articulated legislative guidelines for process and punishment, as well as by judges who explain the potential penalties to offenders.

Despite these many barriers, it should embolden parties interested in collaboration to know that collaborative efforts to reform harsh drug laws have proven successful in many states. ⁿ¹¹¹ One recent reform paying major dividends is the Oklahoma Community Sentencing program. Faced with a budget crisis caused by overcrowded, understaffed and out-of-date prisons comprised of more than 60% nonviolent offenders, the Oklahoma Legislature enacted the Oklahoma Community Sentencing Act (OCSA) in 1999. ⁿ¹¹² Deemed a "common sense" compromise aimed at reducing prison overcrowding and the state's budget, OCSA's enactment came a day before the "Truth-in-Sentencing" Act, requiring the removal of sentencing discretion from judges and juries through [*196] rigid punishment guidelines, was to take effect. ⁿ¹¹³ Although the "Truth-in-Sentencing" Act had passed in response to public pressure on legislators to "get tough," as the Act's effect neared, it met heavy opposition from judges, prosecutors, defenders, police, and community members, who framed it as a "political albatross" that would threaten public input by jurors, create life-long criminals and cost the state millions of dollars in prisons. ⁿ¹¹⁴ Leading to the Act's repeal, judges and community members expressed frustration with how the retributive approach resulted in drug offenders serving their time and then returning to their community only to commit more crimes to support their drug habit and inevitably "re- enter the criminal justice system." ⁿ¹¹⁵

Members of the public and legal community devised OCSA as a legislative solution that punishes and deters violence while rehabilitating nonviolent individuals and restoring communities. As a collaborative compromise, OCSA requires violent criminals to serve 85% of their time before becoming eligible for parole, while certain nonviolent offenders, 42% of which are drug and alcohol related, are eligible for community sentencing. ⁿ¹¹⁶ Under community sentencing, the offender undergoes various assessments followed by a judicial evaluation that includes input from social workers and other community members before sentencing the offender to therapy, supervised treatment, education and job training, restitution, community service and prolonged monitoring. ⁿ¹¹⁷ Although OCSA strictly defines which offenders are eligible, OCSA's relatively flexible guidelines give judges discretion in devising sentences and provide a broad continuum of sanctions for failed compliance. ⁿ¹¹⁸ In successfully lowering recidivism, OCSA has greatly benefited society by reducing criminal activity and freeing millions of dollars to be used in other worthwhile endeavors. ⁿ¹¹⁹

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VII.Conclusion: Embracing A Restorative Ethic

Driven by a troubling history marked by racial biases, complex socioeconomic issues and white America's fear, U.S. drug policy, popularly portrayed as the "War on Drugs," has become a war against people, specifically African-Americans. Using a series of totalizing metaphors that leave no room for dissent, politicians and the media have framed drug use, particularly by people of color, as the gravest threat facing our nation and a criminal issue requiring a "get tough" approach of stiffer penalties and stricter sentencing guidelines. The fruits of this approach have been the criminalization of poverty, epidemic incarceration, massive budget shortfalls, and the reinstitutionalization of Jim Crow. This has left millions of individuals caught in a cycle of hopelessness and whole communities of color economically devastated and lacking political voice.

Stretched to the brink of financial disaster by a U.S. prison population greater than the total populations of Alaska, North Dakota and South Dakota combined, and facing a reality where one-third of African-American boys born today will spend at least some part of their lives behind bars, America has little choice but to stand back, reexamine, and reframe its drug policies. ⁿ¹²⁰ Reframing requires transforming the nation's perception of drug issues from retribution to a restorative approach that incorporates medical and social concerns. Reframing will require collaborative efforts by legal and social stakeholders engaged in a meaningful dialogue aimed at educating the public about the racism and failures within current U.S. drug policy, while simultaneously generating holistic and community-based solutions to drug abuse. Through acknowledging the troubling history of U.S. drug policy as well as the promising potential for reframing and collaboration, Americans can move beyond the fear-driven "get tough" mentality in order to embrace a restorative ethic aimed at transforming individuals through rehabilitation and bringing wholeness to "war-ravaged" communities by reducing recidivism.

Legal Topics: For related research and practice materials, see the following legal topics: Criminal Law & ProcedureCriminal OffensesControlled SubstancesPossessionSimple PossessionPenaltiesCriminal Law & ProcedureSentencingAdjustmentsCriminal Law & ProcedurePostconviction ProceedingsImprisonment FOOTNOTES:

n1 Martin Luther King, Jr., Letter From Birmingham City Jail (Apr. 16, 1963), reprinted in A Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr. 289, 290 (James M. Washington ed., 1986).

n2 Ira Glasser, American Drug Laws: The New Jim Crow, 63 Alb. L. Rev. 703, 722 (2000); MaryBeth Lipp, A New Perspective on the "War on Drugs": Comparing the Consequences of Sentencing Policies in the United States and England, 37 Loy. L.A. L. Rev. 979, 1022 (2004).

n3 U.S. Dep't of Justice, Office of Justice Programs, Bureau of Justice Prison Statistics (June 30, 2006), available at http://www.ojp.usdoj/gov/bjs/prisons.htm.

n4 Kathleen R. Sandy, The Discrimination Inherent in America's Drug War: Hidden Racism Revealed by Examining the Hysteria over Crack, 54 Ala. L. Rev. 665, 672 (2003).

n5 Id. at 672.

n6 Id.

n7 See, e.g., Glasser, supra note 2, at 703; Kenneth B. Nunn, Race, Crime and the Pool of Surplus Criminality: Or Why the 'War on Drugs' Was a 'War on Blacks,' 6 J. Gender Race & Just. 381 (2002); Frank Rudy Cooper, The Un-Balanced Fourth Amendment: A Cultural Study of the Drug War, Racial Profiling and Arvizu, 47 Vill. L. Rev. 851, 869-71 (2002); Michael Tonry, Race and the War on Drugs, 1994 U. Chi. Legal F. 25.

n8 Sandy, supra note 4, at 671.

n9 See Glasser, supra note 2, at 721-22.

n10 Sandy, supra note 4, at 672.

n11 See id. at 667. Sandy explains: In 1986, a Pell Grant covered 98% of college tuition costs. By 1998, a Pell Grant only covered 57%. Since 1998, approximately 75,000 students have been denied any financial aid (grants or loans) simply because they have a drug conviction somewhere in their past. No other conviction, including murder and rape, automatically results in the loss of aid.

n12 Sadly, I found this scenario all too common during my two years with Americorps working in urban schools with young men of color who had little or no positive role models in their lives.

n13 See Glasser, supra note 2, at 717.

n14 Elliot Currie, Reckoning: Drugs, the Cities, and the American Future 3-18 (1993).

n15 King, Jr., supra note 1, at 290.

n16 Sandy, supra note 4, at 677.

n17 Id. at 678.

n18 Steve R. Belenko, Drugs and Drug Policy In America: A Documentary History 21 (Steven R. Belenko ed., Greenwood Press 2000) (citation omitted).

n19 Sandy, supra note 4, at 678.

n20 Id. at 677-78.

n21 Id.

n22 Id.

n23 Id. at 679 (citation omitted).

n24 Id.

n25 Id.

n26 Id. at 680.

n27 Pub. L. No. 63-223, ch.1, 38 Stat. 785 (1914) (superceded 1939); see Roseanne Scotti, The "Almost Overwhelming Temptation": The Hegemony of Drug War Discourse In Recent Federal Court Decisions Involving Fourth Amendment Rights, 10 Temp. Pol. & Civ. Rts. L. Rev. 139, 141 (2000).

n28 See Sandy, supra note 4, at 680 (explaining that the 1956 Narcotics Control Act included severe penalties and authorized the death penalty for anyone caught selling heroin to a minor).

n29 Sara Sun Beale, Still Tough on Crime? Prospects for Restorative Justice in the United States, 2003 Utah L. Rev. 413, 414.

n30 Robinson v. California, 370 U.S. 660, 661-63 (1962).

n31 268 U.S. 5, 18 (1925).

n32 Robinson, 370 U.S. at 667.

n33 Id.

n34 Id. at 678 (Douglas, J., concurring).

n35 Roy J. Lewicki et al., Making Sense of Intractable Environmental Conflicts: Concepts and Cases 12 (Island Press 2003).

n36 Id. at 12-13.

n37 Beale, supra note 29, at 425-26.

n38 Id. at 427, 431.

n39 Id. at 428.

n40 See Julia M. Wondolleck & Steven L. Yaffee, Making Collaboration Work: Lessons from Innovation in Natural Resource Management 50 (2000). Wondolleck & Yaffee explain zero- sum framing as framing a situation to be all or nothing or "where the gains to one party are obtained only through costs to another."

n41 Glasser, supra note 2, at 717.

n42 Beale, supra note 29, at 414.

n43 Scotti, supra note 27, at 141.

n44 Id. at 145-46.

n45 Id. at 144.

n46 See, e.g., Weaver v. Bowersox, 438 F.3d 832, 836 (8th Cir. 2006); United States v. Delgado, 56 F.3d 1357, 1369 (11th Cir. 1995); United States v. Solivan, 937 F.2d 1146, 1153 (6th Cir. 1991); Arrieta-Agressot v. United States, 3 F.3d 525, 527 (1st Cir. 1993).

n47 See Scotti, supra note 27, at 162-63. Scotti explains: In 1989, when District Court Judge Robert W. Sweet called for the legalization of drugs, the Washington Legal Foundation responded by filing a judicial misconduct complaint and calling for Judge Sweet's resignation. Sweet survived this challenge, but the threat of removal or impeachment has been used on other judges as well. In 1996, the power of drug war hegemony was exerted in a more forceful way. When District Court Judge Harold Baer, Jr. ruled against the admissibility of evidence in a drug case, explicit and extreme pressure was brought to bear. Newt Gingrich, then Speaker of the House, and Senator Robert Dole called for Judge Baer's impeachment. President Clinton, who had appointed the judge, declared he might call for Judge Baer's resignation if his judgment was not reversed. The pressure worked, and the judge reversed. Within a month he removed himself from the case entirely.

n48 Sandy, supra note 4, at 681.

n49 Id.

n50 Id.

n51 Belenko, supra note 18, at 306.

n52 Id.

n53 Scotti, supra note 27, at 146; see also Richard M. Smith, The Plague Among Us, Newsweek, June 16, 1986, at 15.

n54 Describing the Salami tactic, Nikolaos Zahariadis explains that political entrepreneurs cut the policy process into distinct sequential stages, which result in a final outcome that the public and many policy makers would have rejected if presented as a whole up front. Further, once the final outcome becomes obvious, sunk costs and path dependency-the effects of prior decisions precluding certain options from future consideration-result in the fact that policy makers have invested too much to depart from the set course of action. See Nikolaos Zahariadis, Ambiguity and Choice in Public Policy: Political Decision Making in Modern Democracies 93-94 (2003).

n55 Lipp, supra note 2, at 993-94.

n56 Belenko, supra note 18, at 307. Belenko explains that of the $ 1.7 billion dollars authorized to fight drug abuse under the 1986 act, $ 231 million or about 14% was allocated for treatment, education and prevention efforts.

n57 Pub. L. No. 98-473, 98 Stat. 1987 (1984); see generally Juan F. Perea et al., Race and Races: Cases and Resources For A Diverse America 1040 (2000).

n58 Lipp, supra note 2, at 994.

n59 Id. at 994-95.

n60 See generally Knoll D. Lowney, Smoked Not Snorted: Is Racism Inherent in Our Crack Cocaine Laws?, 45 Wash. U.J. Urb. & Contemp. L. 121 (1994); see also Briton K. Nelson, Adding Fuel to the Fire: United States v. Booker and the Crack Versus Powder Cocaine Sentencing Disparity, 40 U. Rich. L. Rev. 1161 (2006).

n61 Perea et al., supra note 57, at 1040.

n62 Belenko, supra note 18, at 306.

n63 Holding a sealed bag of crack cocaine marked "EVIDENCE," President Bush remarked "this is crack cocaine seized a few days ago by drug enforcement agents in a park across the street from the White House. It's as innocent looking as candy, but it's murdering our children." President George H. Bush, Televised Speech from the Oval Office (Sept. 1989) (quoted in Benjamin Radford, Media Mythmakers: How Journalists, Activists and Advertisers Mislead Us 216 (2003)). However, as Barry Glassner writes: There was little drug dealing of any sort in that park, and no one selling crack. With Bush's speech already drafted to include a baggie prop, the [drug enforcement] agents improvised. In another part of town they recruited a young crack dealer to make a delivery across from the White House (a building he needed directions to find). When he delivered the crack the DEA agents, rather than "seizing" it, as Bush would report, purchased it for $ 2,400. Barry Glassner, The Culture of Fear 134 (1999); see also Scotti, supra note 27, at 143. Further, responding to critics who stated that an undisputed consequence of the War on Drugs was that a disproportionate number of poor African-Americans have been convicted and incarcerated, "President Bush's Attorney General William Barr, touted this piece of data, claiming that '[t]he benefits of increased incarceration would be enjoyed disproportionately by black Americans.'" See Tracey L. Meares, Social Organization and Drug Law Enforcement, 35 Am. Crim. L. Rev. 191, 192 (1998).

n64 Scotti, supra note 27, at 147. Scotti explains: The title of a 1998 Philadelphia Daily News article on drug use in North Philadelphia declared, "Dopers Zip Like Roaches," and conjectured in the text that if an atomic bomb were dropped on the city, the only creatures to survive would be drug users and cockroaches. In a 1999 New York Times article, New York City Police Commissioner Howard Safir made a similar comparison while talking about policing drugs in Harlem: "You can spray once and they come right back so you have to spray again."

n65 Sandy, supra note 4, at 686.

n66 See id. at 686-87.

n67 Sandy, supra note 4, at 685-86. Sandy explains: The original studies documenting the crack baby phenomenon failed to separate crack use from other factors that are proven to lead to low birth weights, such as lack of prenatal care and poor nutrition. Additionally, the studies did not separate crack use from the use of other drugs, such as alcohol and tobacco. Authorities now believe it is the social context of crack use- mainly by poverty-stricken women, many in an abusive relationship-rather than the prenatal drug exposure that led to the highly publicized medical and developmental damage outcomes. Historical data supports this idea. In the 1970s, significant numbers of well-nourished, stable white women used cocaine (which is pharmacologically indistinguishable from crack) and had babies. These cocaine babies did not suffer from abnormal physical, emotional, or cognitive damages, and there is no scientific reason to believe any different result for crack babies. Id. See also Glasser, supra note 2, at 719-20.

n68 Sandy, supra note 4, at 685-86.

n69 Glasser, supra note 2, at 720.

n70 Sandy, supra note 4, at 686.

n71 Id. at 681-83.

n72 Lipp, supra note 2, at 992-95.

n73 Glasser, supra note 2, at 718. Glasser notes that while crack uses "a different system of delivery that creates a different feeling . . . it is no more pharmacologically harmful" than powder cocaine.

n74 Sandy, supra note 4, at 690.

n75 Glasser, supra note 2, at 723.

n76 Id. at 721-22.

n77 Id. at 722-23.

n78 501 U.S. 957 (1991).

n79 Id. at 961.

n80 Id.

n81 477 N.W.2d 886 (Minn. 1991).

n82 Id. at 891.

n83 See Minn. Stat. § 152.023, § 152.024, § 152.025 (Supp. 1993).

n84 Glasser, supra note 2, at 722-23.

n85 Id. at 717-18; see also Currie, supra note 14, at 113.

n86 Beale, supra note 29, at 435.

n87 Lewicki et al., supra note 35, at 137.

n88 A 1994 Bureau of Justice study of 15 State prisons found that 41.2% of all drug offenders released were rearrested for drug related offenses defined as drug trafficking, possessing and other forms of drug offenses. See U.S. Dep't of Justice, Office of Justice Programs, Recidivism of Prisoners Released in 1994 9 (2002), http://www.ojp.usdoj.gov/ bjs/pub/pdf/rpr94.pdf.

n89 Steven Belenko, The Challenges of Integrating Drug Treatment Into the Criminal Justice Process, 63 Alb. L. Rev. 833, 863 (2000); see generally Currie, supra note 14.

n90 Currie, supra note 14, at 78-79 (explaining that solutions require society to examine not only how current drug policy has effected various racial groups, but also the complex and enduring intersections between race and class within American society).

n91 Under the availability heuristic, the availability of examples of crime in the media has played an influential role in shaping the public's overall perception and fear of crime in American society. See Radford, supra note 63, at 69-74 (explaining the availability heuristic and "that the amount of time devoted to crime coverage is widely disproportionate to the amount of crime that actually occurs"); see also Beale, supra note 29, at 431.

n92 Beale, supra note 29, at 431. Beale explains, "overgeneralization means that people base general views on a few cases or even a single case. Overgeneralization multiplies the effects of availability."

n93 Cait Clarke, Problem-Solving Defenders in the Community: Expanding the Conceptual and Institutional Boundaries of Providing Counsel to the Poor, 14 Geo. J. Legal Ethics 401, 429 (2001).

n94 Id. at 429-30. Clarke explains: [A]t the Georgia Justice Project, a privately funded holistic defender office in Atlanta, the representation role never ends because everyone in the office is committed to helping clients with all aspects of their lives to reduce recidivism by "embracing the person and helping them make these life changes through zealous advocacy, continuing counseling, and employment and job training."

n95 Id. at 444 (citation omitted).

n96 Tony Arnold, Working Out An Environmental Ethic: Anniversary Lessons From Mono Lake, 4 Wyo. L. Rev. 1, 44 (2004).

n97 See Clarke, supra note 93, at 418.

n98 Id. at 445-46.

n99 It is often best to engage public officials initially in private so as to allow them to speak candidly about the issues without having to save face before their constituency.

n100 Clarke, supra note 93, at 431.

n101 See Wondolleck & Yaffee, supra note 40, at 47- 68.

n102 See generally Eric T. Freyfogle, Bounded People, Boundless Lands 110 (1998). Capturing the essence of this dialogue, Charles Villa-Vicencio, former National Research Director for the South African Truth and Reconciliation Commission explains: We need to learn to speak to one another after generations of rebuke and confrontation. This requires a quality of conversation that goes beyond castigating one another as well as ignoring one another. It goes beyond talking past one another, beyond argumentative conversation and beyond repeating what has been heard a thousand times. It requires "new" words, creative thinking and what some would regard as an impossible dream. . . . It involves empathy and a genuine desire to understand what someone else is saying. It involves thoughtful, imaginative and heartfelt talking-carefully chosen words, designed to enable the listener to understand. Charles Villa-Vicencio, Restorative Justice: Ambiguities and Limitations of a Theory, in The Provocations of Amnesty: Memory, Justice and Impunity 30, 43 (Charles Villa-Vicencio ed., 2003).

n103 Clarke, supra note 93, at 444-45.

n104 Id. at 438.

n105 Id. at 439.

n106 Beale, supra note 29, at 433.

n107 See Jim Consedine, Restorative Justice: Healing The Effects of Crime 7 (1999). Consedine quotes the former head of the South African Truth and Reconciliation Commission and Archbishop Emeritus Desmond Tutu as saying, "restorative justice is a challenge to all caring people to create a more positive, fruitful, criminal justice process to carry us into and through the next millennium."

n108 Hon. Linda Morrissey & Vickie Brandt, Community Sentencing in Oklahoma: Offenders Get A Second Chance to Make a First Impression, 36 Tulsa L.J. 767, 781 (2001).

n109 Donald W. Shriver, Jr., Truth Commissions and Judicial Trials: Complementary or Antagonistic Servants of Public Justice?, in The Provocations of Amnesty: Memory, Justice and Impunity 67, 79 (Charles Villa-Vicencio ed., 2003). As a candidate for ordained Christian ministry in the Presbyterian Church (U.S.A.), I strongly agree with Shriver who remarks, "if they take the whole of the Bible seriously, Christians ought to tilt towards the restorative rather than the retributive side of the spectrum, from vengeance to impunity." See also Tulsa Metropolitan Ministry, http://www.tumm.org/public advocacy.html (last visited Sept. 22, 2007) (describing how advocates of the Oklahoma Community Sentencing Act worked through Tulsa Metropolitan Ministries and many Oklahoma churches to educate the public about how the state's restorative program will save tax payers millions of dollars while providing "non-violent, non- habitual offenders an alternative to prison").

n110 Beale, supra note 29, at 433. In comparing restorative approaches with retributive approaches in terms of uniformity of punishment, it is important to acknowledge that, "before mandatory minimums and sentencing guidelines, discretionary sentencing resulted in prison terms averaging about eleven percent longer for blacks as compared to whites who committed the same offense. Today, blacks face forty-nine percent longer sentences than whites." See Lipp, supra note 2, at 1022.

n111 See generally Clarke, supra note 93 (discussing successful restorative programs in Oklahoma, Massachusetts, Oregon and New York).

n112 Morrissey & Brandt, supra note 108, at 768-69.

n113 Id. at 769-70.

n114 Id.

n115 Id. at 771.

n116 In 2003, 56% of offenders receiving community sentences were drug offenders. Oklahoma Dep't of Corrections, Partnerships in Corrections, Oklahoma Community Sentencing Act Annual Report 2003 9 (2006), www.doc.state.ok.us/commsent/ cs/accessible%20Community%20Sentencing%20Act%202003%20Report.pdf.

n117 Morrissey & Brandt, supra note 108, at 774-78.

n118 Id. at 779-80.

n119 Id. at 781. Since the program began in March of 2000, of the 5,685 offenders receiving a community sentence, 11% had absconded or were unavailable for supervision, while only 15% failed the program and were sent to prison. In 2003, the average cost per offender under OCSA was $ 1,593. See Oklahoma Dep't of Corrections, supra note 116.

n120 Lipp, supra note 2, at 1017-18.