PANDEMIC, PROTESTS, AND PRISON REFORM? WHY 2020 IS A CATALYST TO RETHINK DRUG POLICY.

• Author: Lee, Keelia

INTRODUCTION

The unprecedented events of 2020 have demonstrated the need for major reforms to the criminal justice system in the United States. (1) Protests against police brutality, a symptom of decades of racism, have exposed the systemic failure of policing, which has targeted impoverished minority communities through drug policy under the guise of "safety." (2) In calling for the defunding of police departments, people are expressing their dissatisfaction with the criminal justice system that funnels money into the prisons and disproportionately targets minorities. (3) These protests, in the midst of a global pandemic revealing the weaknesses in the healthcare system by leaving millions uninsured with skyrocketing hospital costs, have become a catalyst for the dismantling of the present structures that have failed to provide for the safety and health of people. (4) The country is grappling with crumbling support for the current structures handling the pandemic and race relations, leaving us with an immense need for change. (5)

Race relations in the United States are strongly influenced by the drug policies that have primarily targeted Black Americans. (6) Dissatisfaction with the way in which the criminal justice system handles drug offenses is not the result of the recent world events that have shaken the political arena. (7) The call to end the War on Drugs and Tough on Crime policies has been around for decades, as research continued to show how ineffectual harsher sentences were in combatting drug use and sale and how racial minorities, especially impoverished Black individuals, were disproportionately targeted and punished. (8) Even with many strong voices calling for prison reform, change over the past few decades has been slow, encumbered by political processes and disagreeing viewpoints. (9) Furthermore, drug users and addicts rarely arouse a sense of sympathy from many Americans who believe drug use and violent crime go hand-in-hand. (10) However, despite these limitations, the current political climate is the perfect environment to create the changes that activists have been pushing for. (11)

This Article will argue for the abandonment of the current criminal justice system as it relates to drug offenses and for its replacement with a medical model to address the healthcare problem of addiction. The medical model approach calls for complete decriminalization of all controlled substances coupled with better rehabilitation and reintegration policies. (12) This Article argues the criminalization of drugs has targeted minorities under the guise of keeping communities safe. It will look at the differences between the United States and Portugal, a country that has implemented the medical model, while also analyzing recent legislation in the United States addressing drug policy. The Article will then defend the medical model by concentrating on the benefits of the system and the strong incentives stemming from recent events behind moving away from the criminal justice system.

Part I will describe the opposing models for approaching crime, comparing the prevailing punitive system that the United States has adopted with a non-punitive approach known as the "medical model." The punitive system, using law enforcement to control drug addiction requiring a goal of near "zero tolerance" of drugs will be referred to as the "punishment model." (13) Section I.A will focus on the history behind the criminalization of drugs, concentrating on the war on drugs and the popular Tough on Crime policies. This section will highlight the racial undertones behind these laws, focusing on the political and societal pressures driving the enactment of stricter laws with harsher punishments. Section I.B will discuss the resulting systemic issues that have stemmed from the criminalization of drugs, particularly how it disproportionately affects minority communities. This section will emphasize the failure of using the prevailing penal system to address addiction. Section I.C will describe the use of the medical model to address drug offenses, using Portugal as a leading example of the success of the system.

Part II will address the recent shift away from Tough on Crime policies towards Smart on Crime initiatives. Section II.A will highlight the rise of Smart on Crime initiatives, describing the motivations behind the movement. Section II.B will reject prevalent Smart on Crime initiatives that focus on the reformation of the criminal justice system, such as the First Step Act of 2018, providing an overview and analysis of the Act and explaining the limitations of acts similar to it.

Part III will propose the total reformation of drug law in the United States by adopting a medical model like Portugal, arguing that the benefits to adopting the medical model far outweigh the incremental benefits associated with gradual reformation of the criminal justice system. Section III.A will provide an overview of the incentives driving the switch to a medical model, including a discussion on recent global events. This section will touch on how the global pandemic has pushed forward the need for a better healthcare system and how protests have brought to light the fundamental need to change the policing system. Section III.B will discuss the limitations to this approach. This proposal will argue for the decriminalization of all controlled substances and for the substitution of the criminal justice system with a medical model system that can better address broader healthcare needs.

1. THE RISE OF INCARCERATION

   Despite cultural similarities, the United States and European countries incarcerate individuals at far different rates. (14) The United States has the highest number of incarcerated persons per capita in the world. (15) The United States now houses about one third of the world's prison population despite only accounting for 4% of the world's population, while Portugal houses only about 13,000 people. (16) The American criminal justice system, developed to punish individuals for committing crimes, treats drug offenses very differently from Portugal, which, following its decriminalization of drugs in 2001, focuses on leniency to promote reintegration of people into society. (17) The vastly different ways drugs and addiction are treated in the respective countries have made otherwise culturally similar countries completely different in incarceration rates. (18) A reason for this difference is racism pushing harsher sentencing laws for drug offenses in the United States. (19)

   1. THE RACIAL UNDERTONES IN ANTI-DRUG LAWS

      The punishment model, often referred to as the rational basis model, is a philosophical school of thought used to justify the use of punishments. (20) Under the rational basis model, humans have free will to make decisions based upon their perception of potential pain and pleasure: when the potential pleasure outweighs the potential pain, the individual is more likely to engage in a behavior. (21) Ultimately, the belief is that people have the ability to control their behavior and thereby punishment is an effective way to control crime; by making the criminalized behavior less attractive, people are less likely to engage in such behavior. (22) This model of thought was very popular in the 70s and 80s, manifesting itself in public policy through sentencing guidelines, tougher penalties, and the abolishment of parole. (23) The belief that punishments could deter criminal activity birthed the Tough on Crime movement, dramatically expanding criminal liability and the role of the criminal justice system. (24) At the same time, the War on Drugs expanded criminal punishment for drug offenses under the same reasoning that increased arrests and punishments for drug offenses would reduce illegal drug activity. (25) However effective the punishment model was for crime deterrence, a silent justification for harsher punishments remained: racism. (26)

      The justice system is strongly influenced by a shift in sentencing policies pushed by the Tough on Crime movement. (27) This movement, emphasizing the prevention of crime through the incapacitation of criminals, was brought by an upsurge of serious crime in the 1960s, and marked a dramatic departure from the previous rehabilitative ideal that was popular in the postwar era. (28) The rehabilitative ideal, at its core, is greatly different from the punitive model: rather than being an agent of free choice, a criminal is suffering from some condition which requires treatment, not punishment. (29) The shift away from this school of thought is due, in part, by the anxiety most Americans experienced over crime and by the perception that harsher sentences keep crime rates low; these ideas drove politicians, Democratic and Republican alike, to implement harsher punitive policies. (30) Thus, the penal theory that once supported rehabilitation and indeterminate sentencing was replaced by one that emphasized rigidity and severity. (31) It would be these increasingly draconian anticrime initiatives that would eventually create the criminal justice system that we know today. (32)

      The Tough on Crime movement claimed that implementing mandatory minimum penalties results in greater public safety. (33) The movement resulted in a wave of mandatory sentencing laws including "Three Strikes" laws, requiring mandatory sentencing of up to life imprisonment for a criminal's third offense. (34) These policies draw from a history of mandatory penalties that have existed in the United States since the 1790s, with mandatory penalties for drug offenses appearing as early as 1956 under the Narcotic Control Act. (35) As Americans called for stricter punishments, drug policies began to change. Already popular, the surge of anti-drug policies in the 1970s, popularly referred to as the War on Drugs, resulted in the height of the Tough on Crime policies in the 1980s. (36)

      President Nixon declared the War on Drugs in...