Abstract
Drug legalization, especially cannabis legalization, is a critical step forward in states’ willingness to address systemic disparities, privacy intrusions, violence, and other harms of the drug war. Yet, reforms center on legalization and repair through a narrow lens, focused on changes to the penal code. The public has found that narrow forms of legalization cannot serve their purported reparative purpose. Narrowly drawn legalization is illusory. Drug war harms and punishment for legalized substance use continue. Legalization reforms are vulnerable to political trends, resulting in rollback and retrenchment of drug war operations.
Legalization cannot deliver on its reparative terms without guarantees. Such guarantees, or “guarantees of non-repetition,” are a robustly developed area of post-conflict repair in transitional justice systems. The state and impacted people collaboratively develop these guarantees to protect against retrenchment. The process of developing reparative guarantees entails inquiry among survivors, implementation of policy establishing new norms, and accountability mechanisms. U.S. legalization reforms often misunderstand, under-investigate, and devalue the regime-like nature of the drug war as experienced on the ground. In the case of drug war repair, such guarantees could abolish family courts’ abilities to restrict parenting rights over legal cannabis use. Guarantees may also require reform or abolition of the fruits of the militarized drug war, such as violent SWAT-style raids and no-knock warrants, on communities. Legalization and reparative drug war reforms require guarantees against retrenchment.
Drug reform advocates in the U.S. have highlighted the potential and importance of guarantees through drug war reparations demands. The guarantees-based framework developed through this Article advances this work and emerging scholarship on U.S. drug legalization and drug war repair. Legalization without guarantees against dominant harms is palliative, or tension-easing reform, rather than institutional repair. Guarantees provide buffers from retrenchment when political tides turn. This Article develops drug war repair guarantees conceptually and justifies a basis for applying guarantees to drug reform efforts. Earnest repair to individuals and communities devastated by the drug war requires state reparative guarantees.
Recommended Citation
Amber Baylor, Drug War Repair Guarantees, 83 Wash. & Lee L. Rev. 33 (2026).Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol83/iss1/4
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