Last week I enjoyed visiting the Appalachian Center at the University of Kentucky where I participated in a discussion about Appalachian cultural values and legal institutions. Typically when I participate in any discussion about legal institutions, issues arise pertaining to an increasing dependence in the United States on legal institutions to resolve broad categories of conflicts. This discussion was no exception. We considered issues related to resolving social problems and addiction through the criminal judicial processes.
One of the government’s responses to the miserable failure of the “war on drugs” is “Drug Courts.” As I explained in my previous post, Drug Courts are specially created courts within the conventional judicial system intended to provide treatment for drug addictions, as an alternative to incarceration. However, critics suggest that Drug Courts are not effective at providing treatment, saving tax dollars, or avoiding incarceration. However, Marquette University law professor, Michael M. O’Hear suggests that it would be possible to create an alternative to the traditional criminal justice response to drug offenses. He recommends that the judicial system’s response should be based on restorative justice rather than Drug Courts, claiming that could do better “than the prevailing treatment based model in reducing quantitative disparities, and seems much better suited to address concerns about stigma, trust and collective problem solving.”
I couldn’t agree more! “Drug Court” suffers the same infirmity as most conventional legal processes by allowing the offender to avoid accountability to their family and community while placing the responsibility for addressing the harm with paid professionals within the legal institution, rather than with the family, church and community. Unlike restorative justice, “Drug Court” does not provide a person suffering from addiction with an opportunity to address the harm and the wrong doing, which could facilitate both the recovery and reintegration of a drug dependent offender in the community.
One of the participants in the SWAP conversation at the Appalachian Center was curious as to how restorative justice processes would be constructed when the wrongdoing involves a drug offense without an identified “victim”. O’Hear suggests that there is ample space within restorative processes to address the broader “victim” since the community or family members suffer the consequences of drug addictions. He posits, “Drug courts should be reconceived, not as places for the administration of coerced treatment, but as meeting places for members of the community (including offenders and their families) to engage in constructive dialogue about the effects of drug-related crime on the community and the proper response of the criminal judicial system.” (O’Hear, 487).
One reason that restorative justice may not come to mind when thinking about drug offenses is that RJ is often equated with the victim offender conference or circle sentencing. The victims of a crime involving only drug use or addiction often include family members, loved ones, and community members. A restorative dialog between those harmed and the person with the addiction may provide a far superior structure for rebuilding than the coercive judicial process associated with Drug Courts. Restorative justice could involve the substitution of family and community members, the stakeholders, for the myriad group of legal professionals, including lawyers, judges, and probation officers involved in Drug Court. The involvement of stakeholders may create a greater potential for a long-term support network. Additionally, this collection of stakeholders creates a broader collaborative potential that could generate a far more individually tailored program than the “carrot and stick” process employed by many Drug Courts. When the stakeholders gather in a conference, the potential for options and resolutions is limited only by the stakeholders’ imaginations. Drug Court processes tend to limit both the types of discussions and participants to those in convectional proceedings.
What does this have to do with Appalachian values and legal institutions? Loyal Jones identifies Appalachian values as including independence, self-reliance, pride, neighborliness and familism. During the session at UK, one attendee shared that growing up in Texas, she also learned to respect these values. Why then, are we expanding legal institutions that are not consistent with those values? Whether a family or community is harmed due to drug addiction or intentional criminal wrongdoing, restorative justice can provide a framework to address the harm consistent with our cultural values. Where Drug Courts and conventional courts “outsource” the decision making to the judge and allow us to abdicate our responsibilities as families and neighbors, a restorative framework would allow us to work consistently with the values.
I left the center that afternoon surprised by the conversation. When I proposed that we have a discussion rather than a presentation around a topic as broad as Appalachian values and legal institutions, I had no idea where it might go. How beautiful that the conversation took us from this exploration of a group of values that are not bound by mountains and into a space where conflict resolution need not be bound by restrictive conceptual barriers.