In 2013, state legislators sitting at the heart of America’s opiate epidemic created the crime of fetal assault. Although they offered a fairly standard series of criminologic rationales to justify the legislation, they also posited that the creation of this crime was a precondition to secure treatment (or care) resources for women addicted to opiates. This extraordinary supposition—that criminalizing conduct creates a road to care—is an outgrowth of three interlinked socio-legal trends: the building of the carceral state, the criminalization of poverty, and the rapid growth, since the late 1980s, of a new generation of problem-solving courts. Framed in this historical context, this legislative rationale seems less extraordinary and more a predictable outgrowth of these disturbing trends. As such, the legislative rationale also provides a unique window into what actually happens to those who are the target of this form of criminalized care and a basis from which to evaluate the wisdom of these trends.
An empirical study of the fetal assault law reveals two phenomena—what this Article terms prosecuting poverty and criminalizing care. The fetal assault legislation prosecutes poverty in the sense that this form of punitive care was reserved almost exclusively for low-income women. Although addiction crosses class, this form of “care” is targeted at the poor. And when legislation criminalizes care, it distorts any real meaning of care. The criminal court case files reveal that, for the forty-one low-income women who are the focus of this Article, any notion that care was central to their prosecutions was either entirely illusory or profoundly debased. In the healthcare system, there was no confidentiality. Every prosecution in the study relied heavily on information obtained by healthcare providers and provided to police and prosecutors in order to establish the elements of the crime. For the majority of women in the criminal system, there is no evidence in their court files that they were even offered or received care. Instead, the case files document what so many poor, low-level offenders face: jail, bail, fines, probation, and the everpresent threat of more punishment. For the few women whose files indicate that care was offered, that care came at a high punitive price. Failure to comply with treatment came at a still higher price. Ultimately, this story suggests, and this Article argues, that we must turn away from these historical trends. Rather than continuing to prosecute poverty and criminalize care, we must reconceptualize the problem far more broadly and turn to programs that heal both families and communities.