PROSECUTING POVERTY, CRIMINALIZING CARE.

• Author: Bach, Wendy A.

Table of Contents Introduction 812 I. Hyperincarceration and the Criminalization of Poverty 817 A. Historical Roots 821 B. Today's Problem-Solving Courts 825 C. Jail as the New Safety Net 830 II. Opiates and Neonatal Abstinence Syndrome 831 A. A Crisis and No Treatment Resources to Meet It 838 III. Tennessee Responds: Prosecuting Poverty and CRIMINALIZING CARE 839 A. Creating Crime to Create Care 840 B. Prosecuting Poverty: The Tennessee Cases 848 C. Three Intersecting Legal Systems at Play 852 1. The Healthcare System 852 2. The Child Welfare System 854 3. Police, Prosecution, and Courts 856 D. Tracing the Cases 860 1. The Role of Hospitals and Hospital Personnel in Prosecutions 861 2. The Relationship Between Prosecution and Care 866 3. Accessing Treatment at a Cost: The Cases of Maria Walsh and Vanessa Thomas 867 4. Criminal Prosecution Despite Engagement in Treatment: The Case of Lacy Wilder 872 5. Criminal Prosecution Without Treatment: The Cases of Margaret Swann and Bailey Johnson 873 IV. The Road Forward 875 A. Intervening in the Systems at the Heart of the Case Study 878 1. The Healthcare System 878 2. The Child Welfare System 880 3. The Criminal Legal System 881 B. Reconceptualizing the Problem and Moving Towards Larger Solutions 882 INTRODUCTION

Sullivan County is the second oldest county in Tennessee. (1) It is nestled in the mountains and is the home of several small, oncethriving industrial cities. (2) It is also at the center of the Appalachian opiate epidemic. (3) When you talk to people in Sullivan County about opiates, talk quickly turns biblical. Opiates are devastating, they are flooding the county. Pills are cheap, and are everywhere and easy to get. People in this region are desperate to do anything they can to stem the tide. Opiates and pregnancy are part of this flood. (4)

For that reason, in the spring of 2014, Barry Staubus, the elected District Attorney in Sullivan County, Tennessee, testified before the state's General Assembly. (5) He was there to support a law that would create a new crime: the crime of fetal assault. (6) Under the proposed law, a woman was guilty of assault if (1) she took a narcotic, (2) she did not have a prescription for that narcotic, and (3) her infant was harmed as a result. (7) After all, when women take opiates during pregnancy, it can affect their infants in the short term. (8) The primary diagnosis for these babies is Neonatal Abstinence Syndrome, or NAS. (9) Although there are significant questions about what particular circumstances lead to NAS, (10) there is no question that some infants suffering from NAS shake and cry in the first weeks of their life. (11) Those with more serious symptoms can also spend some time in neonatal intensive care. (12) In 2013, the year before the Sullivan County District Attorney testified, eighty-six babies born in Sullivan County were diagnosed with NAS. (13) For a county with a population of 156,000 and only three birthing hospitals, this felt like a serious part of the flood. (14)

When Staubus testified, he said everything one might expect. He talked about the problem of NAS, the harm, and the overwhelming crisis. (15) He talked about infants suffering, punishing women, and protecting innocent lives. (16) But he also said something that was surprising. Staubus said that the crime of fetal assault would actually benefit the same mothers the law targeted:

I think when we see this statute ... we are going to be able to bring lots and lots of women into a program we're creating specifically for drug addicted mothers and so I think that with this statute, what we'll see is that there will be a vacuum for that and we'll see a lot of programs and we'll see a lot of judges and we'll see a lot of prosecutors wanting to do this and recommending this and the judges I think will find the resources to do it. (17) The law subsequently passed, making Tennessee the only state in the nation to explicitly criminalize in-utero transmission of illegally obtained opiates to a fetus. (18) During that period, at least 124 women were prosecuted for this offense. (19) Although legislators and other supporters offered a variety of justifications for the law, including incapacitation, retribution, and deterrence, (20) this Article focuses on a fourth, and quite unique justification offered in support of the statute: that the creation of the crime would generate opportunities for the creation and distribution of social welfare support (in the form of addiction treatment) to the women who were prosecuted.

The extraordinary idea, that a state might create a crime not to punish or to exact retribution but to provide care to the defendants prosecuted for the offense, is not quite as dissonant as it might first sound. It in fact arises from a very particular history. As has been thoroughly documented by a variety of historians, sociologists, and legal scholars, since the 1970s social welfare resources targeted at poor families envisioned and created during the New Deal and the Great Society have been largely deconstructed. (21) To the extent that these social welfare resources have been left in place or reconstructed, they are now found deeply intertwined with the punitive agencies of the state. (22) In the world of courts, this intertwining is most evident in the extraordinary growth, since the late 1980s, of a new generation of problem-solving courts. (23) Both the broad trend of criminalizing social welfare support, and the more narrow trend of manifesting this collapse by locating resources to solve social welfare problems within courts, have been widely critiqued. (24) Central among these critiques is the fear that when the law merges care and punishment, it both draws more individuals into punitive institutions (what scholars have called "net-widening") (25) and compromises the quality of the care overall. (26)

Tennessee's implementation of the fetal assault law provides a unique window into both on-the-ground results of this history and the implications of those trends. This Article is the first in a series of publications arising from an empirical study of the implementation of this law. Other parts of the study, and subsequent publications, will focus on other crucial questions, such as the effectiveness of the prosecutions in targeting women whose infants were diagnosed with NAS, the significance of the fact that it appears that the large majority of defendants were white women, and the reality of what has happened to care resources in poor communities. This initial Article, however, focuses on the reality of care as it has played out in the Eastern Appalachian region of Tennessee where the majority of prosecutions took place, and what this evidence might tell us about the idea that creating a crime creates care.

Specifically, this Article asks, and begins to answer, two central questions. First, if the fetal assault law was justified as using the mechanisms of the criminal system to provide care, was this care plan for everyone or just for some? The study data reveals what the Article terms prosecuting poverty: the prosecutions targeted almost exclusively poor women. So the first thing the data reveals is that if this were a road to access care, it was a road used not for everyone, but only for the poor.

Second, if the law was justified as a road to care, was the provision of care a priority? More precisely, what happened in the hospital setting and what happened in the criminal setting that promoted or undermined access to care? The answers provided here are three-fold. First, the prosecutions were supported by extensive medical evidence gathered in the hospital setting and shared with child welfare, police, and prosecutors. (27) The sheer breadth of this data collection and data sharing raises serious questions about how linking healthcare to prosecution undermines the confidentiality necessary for high-quality care. (28) Second, in the criminal system itself, the files reveal that for the majority of the low-income women prosecuted for this crime there is no indication that the provision of care was central to the prosecution. (29) What we learn instead is that the criminal system did not prioritize care. Instead the women faced what most people face when they are prosecuted: bail, jail, fees, tremendous pressure to plead guilty, then monitoring and, often, more jail and more fines. (30) Although the law was described by its supporters as a "velvet hammer" leading to care, the focus of the prosecution was, to put it bluntly, just a hammer. (31) Admittedly, that characterization does not describe every case. The court files that are at the center of this Article indicate that, for a minority of the women, the case did involve some offer of treatment. (32) These offers of treatment, however, came with extraordinary risk. Treatment was often offered along with incarceration and exorbitant criminal justice fees, and the failure to comply resulted in even more harsh punishment. (33) Thus, to the extent prosecution provided a road to care, it was a road lined with tremendous risk of punishment. Importantly, these findings raise serious questions about the reality of what it means to link care to punishment, questions that have broad implications for both the health care and legal fields, lending more credence to the argument that linking care to punishment ultimately debases care.

To tell this socio-legal story, this Article proceeds in four parts. Part I draws the lens back, situating this Tennessee story in a long history of the links between punishment and care in poor communities in America, concluding with a focus on the existence of today's version of problem-solving courts and the role of jails as care providers of last resort. Part I also focuses on the critiques waged, by a variety of scholars, against contemporary systems that link punishment and care, both in the court systems and beyond. Part II contextualizes...