Can restorative justice be the right response to drug offences?
Can restorative justice be the right response to drug offences?
The inefficiency of the traditional forms of justice based on punishment and coercion along with the change of ideologies and opinion formation in the recent years, led to the conception of the term ‘restorative justice’. Restorative justice is now considered in many countries as a successful alternative within the criminal justice system. Briefly, restorative justice is the approach according to which the offender and the victim are engaged in a dialogical procedure, whose aim is the creation of an agreement that can be considered as a fair compensation - moral and practical - for the victim and the result of the repentance of the offender. Some of the forms that restorative justice can take are healing and peace circles and family group conferencing.
Restorative justice practices have been mostly succeeded in the cases of minor crimes, such as robbery and theft and apparently have proved unsuccessful when it comes to drug offences, sexual assault and domestic violence. Nevertheless, one form that restorative justice could take in the case of drug offences are the drug treatment courts. These courts are not thought to constitute the most representative forms of the restorative justice system, but seem to be more humane and respectful for the offenders compared to the traditional courts and methods of punishment.
The first drug treatment courts appeared in Miami in 1989 and gradually spread over the world, with nearly 2000 in existence nowadays. Their main function is to help stop the abuse of drugs and alcohol, by providing different forms of treatment to offenders charged mainly with the accusation of possession. The National Association of Drug Court Professionals indicates success among the drug court programs, by stressing that it has been statistically observed that drug courts reduce drug use and crime, are much more cost-effective than other criminal justice methods, enhance compliance and cooperation and restore family bonds.
The question now, is, whether the existence of a court-even in the form of a drug treatment court- as an instrument of criminal justice is appropriate for drug offences associated with simple possession –since the function of drug treatment courts is mainly eligible for those offences- and whether these offences could come under the category of ‘crime’ and hold the people who take drugs accountable for the act of using drugs in front of any type of court. Also, are the principles of restorative justice limited to the operation of drug treatment courts or do they have other possible applications?
The fact that there is still a court, belonging to the criminal justice structure and dealing with the cases of the so-called ‘drug offenders’ that have committed the so-called ‘crime’ of using drugs, automatically implies that drug users charged with the accusation of possession are considered as people who commit a minor crime and hence have to face the rules of the criminal justice institutions. In other words, the drug users who are taken to courts do not cease to be thought of as ‘criminals’, as people who are dangerous for the cohesion of community and the well-being of the general population. Even if they receive intense treatment programs, they are still up to a certain degree faced as criminal personalities, as drug addicts who have to be tested in regular intervals, obey to the judge’s decisions and go through this tough procedure of appearing in front of a court and apologizing for their offensive behavior. Of course there are positive outcomes from this institution and no one denies that drug treatment courts focus on a certain restoration of a harm done to the person, provide intensive treatment and aim to a full rehabilitation and re-integration of drug users. Nevertheless, the correlation of those vulnerable users with the category of criminals is not appropriate.
So, how should these people be treated and who is to decide? How could we still accept the principles of restorative justice without criminalizing the ‘drug offenders’? The balance is difficult to strike. It is true. But the first step towards the balance is to decriminalize those people who are simply possessing a quantity of drugs, who are vulnerable, victimized, possibly traumatized and possibly manipulated by others, and who need to be faced as human beings in need of some help. Criminal charges should cease to exist for those people, because possessing a certain quantity of a drug is not crime. Murder, rape and genocide are crimes. But using cannabis or cocaine is not a crime. Using drugs can be harmful for people’s mental and psychic health, yes, but it cannot constitute a crime. Therefore, drug treatment courts are not a correct response to this category of drug users, despite the fact that they have some positives aspects that should not be ignored.
If then, drug treatment courts are not the right response to a certain type of drug offences, is there anything remaining in the area of the restorative justice that can generate fair and more effective outcomes for drug users? Or is it exhausted in the example of drug treatment courts? The answer is again not easy. Since restorative justice is based on a communicative process between the offender of the victim, it becomes clear that in the area of drug offences, there has to be a clear distinction between the two, which in the case of the vulnerable drug users accused of simple possession is not at all applicable. Who is the offender and who is the victim? Do we only have to deal with victims? It seems plausible that those people who are arrested for possession are usually victims. Who do they offend then? Those who should be treated as offenders are the ‘big heads’ who organize the distribution of drugs and keep the drug industry moving by exploiting and manipulating others. But for an inexplicable reason, these people are always untouched, above the law and rarely are they confronted with the criminal justice system. The relationship between offender and victim in the cases of drug addicts who are simply accused of possession is then blurred. The boundaries are not easy to define and if we apply the ‘traditional’ restorative justice model we might end up in a deadlock.
What about introducing an ‘alternative’ restorative justice approach? This would be based on the following premises: The drug ‘offenders’ should not be called as such, but should be recognized as human beings, worthy of respect and as vulnerable parts of the society, who need empowerment through treatment, through the interaction with drug users and non-drug users and, above all, who need acceptance. State actors, the whole community, counselors, doctors, families should unite and form units of dialogue, understanding, where all the people affected by drug use will be able to share stories, talk about their experiences and reintegrate in society through activities, job training and team projects. In this way, there would be an obvious effort for a repair of the harm, but between victims and not by placing offenders and victims in clearly distinguished adversary camps. In other words, everyone will work in its own way and together with others towards the repair of the harm, without stigmatizing drug users as criminals.
I don’t know if this model of restorative justice can be feasible, because it presupposes the absence of any kind of coercive treatment, imposed by the criminal justice authorities. But only if we are ready to embrace people who are victims and stop considering them as criminals we will have a chance to take a real step forward. Because, no. The majority of drug users who are taken to endless trials, accused of possessing drugs and viewed as criminals, are not criminals. They are usually disadvantaged, marginalized, traumatized victims who have to be taken care of. The source of the harm must be detected elsewhere, possibly behind the masks of all those corrupted members of society, who keep hiding behind their luxurious lifestyles, their high social status and their powerful position that allows them to victimize others and at the same time always remain untouched and unrecognized.