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Building a World Without Criminalized Care


Wendy Bach (@wendyabach) is Professor of Law at the University of Tennessee Knoxville.

This post continues a symposium on Dorothy Roberts’s Torn Apart: How the Child Welfare System Destroys Black Families—and How Abolition Can Build a Safer World and Wendy Bach’s Prosecuting Poverty, Criminalizing Care.

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In the spring of 2013, in a hearing room in Tennessee, a group of legislators came together to create a new crime – the crime of fetal assault. A woman would be guilty of this crime if she took illegal narcotics while pregnant and her child was harmed as a result. Over the course of the next two years, about 120 mostly low-income women – rural, urban, Black, and white – would be prosecuted in Tennessee for fetal assault.

The law was justified, in large part, by a very strange and deeply disturbing set of ideas: that the only way to help women who used illegal drugs while pregnant was to prosecute them, and that criminal prosecution was not only a road to treatment but also a form of treatment in itself. The reality was quite different. Few of the women convicted under the law received any treatment as part of their criminal case. Instead, they got what the criminal system almost always delivers: probation, jail, and thousands of dollars in criminal debt. At the same time, these same women were subject to a family policing system that equated their substance use during pregnancy with severe abuse and as grounds for rapid termination of their parental rights. To the extent that these deeply stigmatized women and others like them receive any care from our legal and social welfare systems, that care is corrupted by its location within or near punishment systems.

More than anything, it was the legislative record that convinced me that writing a book about this law would be an opportunity to reveal logics at the heart of American’s carceral system. The hearings, although certainly replete with references to traditional justifications for criminal law, also contained a quite astonishing set of hypotheses about the purpose of creating and prosecuting crime. The law’s supporters argued that creating this crime would, in effect, create care. Indeed, they argued that criminalizing this behavior was a logical response to Tennessee’s opiate epidemic and healthcare crisis. Creating the crime would, they argued, create incentives for judges to draw more treatment resources into court. Prosecution would be therapeutic. It would, as they framed it, transform women from “bad mothers” (or in another legislator’s words “not even mothers”) to the mothers they would want to be. Crime creation and prosecution were, in the logic of the hearing rooms, a form of care. 

The research underlying Prosecuting Poverty, Criminalizing Care was designed to take the legislators at their word. I asked and tried to answer a series of questions: Who was prosecuted and who wasn’t? If criminalization is a form of care, is it care for everybody or just for some people? What happened in those cases? Was care provided as part of criminal prosecution? If care (in this case primarily drug treatment) was provided, did the relationship between punishment and care affect the quality or form of care? And finally, what can this story tell us about the relationship between care and punishment in the U.S. carceral state?

The book answers these questions in several parts. First, unsurprisingly “care” provided through and by means of prosecution and punishment is not designed for everyone. Despite similar rates of drug use in general and during pregnancy across both race and class, the women who were prosecuted were almost without exception low income. Their race varied. The majority of prosecutions, which were brought in the northeastern, Appalachian part of the state, targeted poor white women. Other prosecutions, brought in Memphis, targeted poor Black and poor white women.

As to the provision of care as part of the criminal case, that turned out to be mostly a smokescreen to hide pure punishment. Only about 30% of the court files contained evidence that treatment of any kind was offered or required as a part of the case. For the rest, the prosecutions delivered exactly what Alexandra Natapoff describes in Punishment Without Crime and Issa Kohler-Hausmann describes in Misdemeanorland – a whole lot of punishment and very little justice. There were no hearings, no trials, no motions and, in the vast majority of cases, pleas to the charge, jail, probation, and extensive monetary fines. Women pled guilty in virtually all the cases, even in cases where it was quite clear that the woman could have put forward a reasonable defense to the charge.    

But some of the women did receive some form of treatment. Relying both on these case files and qualitative interviews with system professionals, the book makes three arguments about the relationship between care and punishment in these cases and beyond. First, in the context of substance use and pregnancy, a wide variety of laws and practices result in a steady flow of information out of presumptively confidential care settings and into the hands of professionals in the family policing and criminal systems. In the fetal assault cases, more than 90% of the pleadings contained information that had originally been obtained or disclosed in a healthcare setting.

Second, in East Tennessee and beyond, punishment systems are the locus of what meager care is available. The story of a woman I called Cindy Jones provides perhaps the starkest example of this reality. Cindy lives and works in the court of a rural, poor, and vastly under-resourced county in northeast Tennessee. I met Cindy through a local public defender, who told me that Cindy is the go-to person for accessing treatment in her community. When I asked Cindy how she gets people into treatment her answer was blunt: “lock ‘em up, clean ‘em up, start ‘em over.” She explained that in order to get someone into detox, she advised community members to get the person on “some little charge.” That way she could bring them into court, put them in jail, and get the judge to sign a voucher which would pay for detox. That’s just the way it was.

And Cindy was far from alone in taking this view. In my interview with Dr. Stephen Lloyd, an addiction medicine specialist in Tennessee who is currently the chair of Tennessee’s opiate abatement council, he told me that “Even knowing what I know, if I needed somebody in treatment that didn’t have insurance, I’d tell them to go to Greene County and get caught shoplifting.  They’d get into drug court, and they could get them treated.” In rural Appalachia, in the south, in San Francisco, and far beyond, punishment systems are not just providing care to those who are subject to punishment. Instead, they have become the locus of care in poor communities. 

And finally, I argue in the book that criminalized care – care offered inside or proximate to punishment systems – is fundamentally corrupted by its proximity to punishment. As one woman affected by the fetal assault law explained, “The laws in effect prevented it from being a care issue. It became a law, a liability issue.” Women engaged strategically – weighing the risks of accessing care against the help the care could provide. Similarly, in the particular context of substance use disorder and pregnancy, a variety of legal incentives push women to detoxify during pregnancy so that they can avoid a child welfare referral even though using maintenance medications may be the safest medical choice for both mother and infant. In this and countless other ways, proximity to punishment corrupts care.

In light of these arguments, I conclude the book by arguing that we must confront and abandon the deeply stigma-ridden idea that poor communities will only seek care if they are forced to do so. We also must embrace abolitionist visions of investment in social programs and divestment from carceral systems. We must profoundly shrink punishment systems, grow opportunities for care in the most capacious and respectful sense of that word, and build and enforce firm legal barriers between systems of care and systems of punishment. Only then can we render criminalized care a thing of the past.