To Punish or to Treat

Abstract

Although its remote origins can be traced to the end of prohibition with the repeal of the Volstead Act in 1933, the nation's “war on drugs” gathered massive strength in the early days of the Reagan administration. During the 1980s and 1990s, the decision of the nation, expressed through its legislators, seemed to be to “criminalize” drug use or abuse through imposition of harsh penalties for what had earlier been statutorily defined as relatively minor offenses and by eliminating judicial discretion in sentencing, so that mandatory incarceration was required for many offenses. Yet by 2000, the voters of California, the Governor and criminal court judges of New York, and even the nation's “drug czar” had decided that they would rather, as described by the New York Times, “treat than fight.” This paper situates that sea change in posture within a context of oscillation toward the goals of corrections generally during an era in which “therapeutic nihilism” and “just deserts” appeared to have carried the day.