Eric J. Miller
A relatively well-accepted phenomenon of the criminal justice system is that policing and class (as well as race) are interrelated. For many individuals, the criminal justice system is means of low-level social control of the poor. Drawing on some insights from political theory, I shall argue that we should understand the process of policing, not simply as a means of controlling or repressing the poor, but as a means of producing various attitudes towards the poor and poverty. I shall focus on the politics of “responsibilization” as a means of maintaining class inequality and reinforcing narratives justifying the domination of the poor by the police acting as a state and municipal organization.
Eric J. Miller
Professor and Leo J. O’Brien Fellow
Loyola Law School, Los Angeles
919 Albany St.
Los Angeles, CA. 90015
Abstract: Prosecuting Poverty
Wendy A. Bach
Associate Professor, The University of Tennessee College of Law
Between April 28, 2014 and June 30, 2016 at least 122 women were prosecuted in the State of Tennessee for assault based on allegations of transmission of illegally-obtained narcotics to her fetus. My study of these prosecutions for a book project seeks to answer three questions. First, as a matter of demographics who was prosecuted and how do the demographics of the population that was prosecuted compare the demographics of the women who engaged in conduct that met the elements of the offense? Second, what were the points of discretion, in the health care, child welfare and criminal justice settings, that led some women toward prosecution and others away? And finally, what happened in the cases? Methodologically, the study involves a good deal of qualitative interviewing of both professionals involved in the various systems at issue as well as interviews of several of the women themselves. I am also gathering some empirical data from birth and hospital records and am collecting and analyzing the court files of the women who were prosecuted.
This study is embedded within scholarship on the carceral state, the criminalization of poverty systems, the historical degradation of social welfare support beginning in the late 1960s and the increasingly intertwined nature of carceral and social welfare systems in poor communities across the U.S between the 1960s and today. Tentatively, scholarship arising from this project will build on my argument, in The Hyperregulatory State, that for poor women, and disproportionately for African American women, social welfare support is closely tethered to punitive arms of the state. But the implementation of this law differs significantly from the examples in the Hyperregulatory State in at least two ways. First, while the Hyperregulatory State focused on poor African American women, the implementation of the fetal assault law focused primarily on poor, white rural women. Second, while The Hyperregulatory State highlighted the means by which requests for support subject poor women disproportionately to the risk of punishment, the Tennessee fetal assault prosecutions tell another aspect of this broader socio-legal story. As has been suggested by much of the literature critical of the problem-solving court movement, the creation and implementation of this law is a prime example of the way that social support is, for those in poverty, quite literally locked behind the doors of the criminal justice system. In this case the prosecutions themselves were conceptualized, by key legislators and prosecutors, as a form of social service. Manifesting what scholars have termed therapeutic justice, the creation and implementation of the statute was framed, at least in part within a discourse of the criminal justice system as a place of support, in which the courts will act as service providers and problem-solvers, trading purely punitive systems for offers of support backed up by the “velvet hammer” of threatened punishment. This discourse mirrors that of the problem-solving court movement, and indeed many of the law’s staunchest backers were deeply involved in the implementation of the Memphis drug court. But while problem-solving courts have traditionally been conceptualized by their supporters as a more benevolent response to the social service needs of those that find themselves subject to prosecution and have been critiqued for the ways in which they widen the net of individuals subject to carceral oversight, Tennessee’s law tells another part of this story. In this case the need for and existence of court-based treatment resources justified not just keeping individuals in the criminal justice system but justified the creation of a new crime, and new defendants. It signals not only that, for those in poverty, help if available at all, is locked behind the walls of the carceral state but that we will build out the carceral state itself to encompass this support function.
At the same time, the data is beginning to reveal that, for the poor women who were prosecuted, the promise of help was never realized. Instead many they faced a carceral system more than willing to simply lock them up and charge them exorbitant fees in the name deterrence and protection of their children. Ultimately the story of this law further solidifies the argument that for poor women, in this case poor, rural white women, help comes only at the price of prosecution and at the expense of any hope of a robust community-based and autonomy enhancing system of support.