Mass Incarceration

War On Drugs Is Cautionary Tale For Abortion Prosecution

Sherry Boston
Sherry Boston

As a prosecutor, June 24, 2022, is seared into each fiber of my being as one of many darkest days in current U.S. historical past. It’s, in fact, the day the U.S. Supreme Court overturned Roe vs. Wade, upending 50 years of well-settled abortion rights precedent.

Within the months since, concern and uncertainty have remained within the wake of this monumental course reversal. Many people within the authorized group, notably within the prosecution area, have struggled to make sense of all of it.

There are layers of authorized nuance and ambiguity by way of which we should type. Reality be instructed, I can’t consider any space of regulation that’s as complicated as this one, now left to every state to interpret and codify at its respective will.

Nonetheless, what is evident is that reproductive freedom and private well being care rights are below assault, and topic to felony inspection and prosecution.

However many questions stay. How vigorously will these legal guidelines be enforced? Who shall be caught within the crosshairs? How will varied state legal guidelines have an effect on the rights of these in jurisdictions with conflicting legal guidelines?

The historical past of the struggle on medication gives a cautionary story. We’d be sensible to heed the teachings realized from the ill-fated laws of the previous that continues to threaten our future.

Weak Populations Most Affected

The struggle on medication disproportionately affected individuals of coloration and marginalized communities who discovered themselves ensnared by focused enforcement ways and disparate sentencing at a better price than their white counterparts.

The false narrative and unjust sentencing distinctions made between crack and powder cocaine stay probably the most poignant examples of this abuse, resulting in a lot of the mass incarceration we now face in its wake.[1]

Equally, extreme abortion restrictions[2] disproportionately have an effect on individuals of coloration and people from weak, marginalized communities, placing them at elevated threat for criminalization.

Based on 2019 knowledge from the U.S. Centers for Disease Control and Prevention, abortion charges and ratios have been 3.6 and three.3 instances greater amongst non-Hispanic Black girls than their white counterparts, and 1.8 and 1.5 instances greater amongst Hispanic girls in comparison with their white counterparts.

The elements resulting in greater abortion charges amongst sure racial and ethnic minority teams are complicated, based on the CDC. It has acknowledged:

Along with disparities in charges of unintended pregnancies, structural elements, together with unequal entry to high quality household planning companies, financial drawback, and mistrust of the medical system may contribute to noticed variations.[3]

What’s extra, criminalizing abortion means making household planning care obtainable solely to these with the monetary means to journey throughout state traces to entry authorized medical abortion care and/or abortion-inducing drugs — leaving these with fewer sources unable to take action.

Drug Use and Dependancy Stay Prevalent

Regardless of the struggle on medication’ acknowledged targets of ridding our streets of medication and curbing habit, medication stay an accessible and prevalent a part of our society to today.

Based on the Drug Policy Alliance, drug offenses are the main explanation for arrest within the U.S. In 2020, there have been greater than 1.1 million arrests for drug regulation violations, the overwhelming majority of which have been for private possession.

Black folks signify 24% of these arrested, whereas solely making up 13% of the U.S. inhabitants, and “even supposing Black and white folks use and promote medication at comparable charges.[4]

Based on a press release by the Leadership Conference on Civil and Human Rights, “Regardless of the dramatic uptick in incarceration, there is no such thing as a indication that these sentences deter crime, shield public security, or lower use or trafficking.”[5]

So, what’s the takeaway? Simply as overly punitive sentencing doesn’t forestall drug entry or use, criminalizing abortions won’t cease folks from having abortions. It should merely improve the probability that ladies will acquire unsafe abortions or try to finish their very own pregnancies with out medical help.

Additional, the specter of criminalization will deter girls from looking for reproductive well being care and erode patient-provider relationships.

Public Security and Belief Erode

Marginalized communities and individuals of coloration who’ve lengthy been overpoliced and underprotected by the felony justice system have a mistrust of regulation enforcement and its felony justice gamers.

A lot of this sentiment has been spurred by decades-long insurance policies, biases and overreach related to the struggle on medication. It’s, the truth is, a part of the undercurrent of the felony justice reform motion.

Criminalizing abortion, likewise, undermines public security by isolating folks from vital regulation enforcement, medical and social companies. For instance, people experiencing miscarriages could refuse to hunt medical assist, even amid indicators of problems, for concern they are going to be investigated for a criminal offense.

Prosecutors, police and medical companions can’t successfully carry out their work when many victims and witnesses of crime or different emergencies are unwilling to cooperate in felony prosecutions for concern that their non-public medical selections shall be uncovered and criminalized.

The place We Go from Right here

As we start to undo the hurt brought on by the struggle on medication, it’s my hope that we will proactively forestall the pointless hurt related to the ban on abortion.

To that finish, I’ve vowed to not prosecute girls, their suppliers and those that help them for selections and actions associated to reproductive well being care, and I encourage different prosecutors to fastidiously think about the perfect path ahead to cut back hurt of their jurisdictions.

As district legal professional, it’s my responsibility to proceed with prosecutions which can be in the perfect curiosity of the group for which I used to be elected to serve. I don’t take my prosecutorial discretion evenly. I imagine my overarching function is to maintain my group protected, however that won’t all the time equate to punitive motion that leads to jail time.

It could imply serving as a conduit to applicable companies for residents in my group — or it could imply selecting to prioritize the prosecution of sure offenses over others. It’s a mindset shift for a lot of, however not a brand new idea.

Prosecutorial discretion has all the time been a instrument utilized in our apply. As ministers of justice, now we have a accountability to be the standard-bearers in prosecution. Is your group safer since you prosecute somebody and ship them to jail? Or is your group safer since you diverted somebody out of the system and helped them resolve underlying points that contributed to their crime?

It’s not a one-size-fits-all answer. Prosecution requires a complete and holistic method. If I exploit my discretion properly and focus my workplace’s restricted sources on violent and quality-of-life crimes which can be really affecting group security, I imagine I’m serving my constituents nicely.

Past my group, as we work collectively on a nationwide stage to reimagine a felony justice system that operates in a simply approach for all, I am reminded of the phrases of author and thinker George Santayana: “Those that can’t keep in mind the previous are condemned to repeat it.”[6]

To that finish, I imagine now we have an obligation to study from the devastating classes of the struggle on medication. We can’t proceed to do issues the identical approach and count on completely different outcomes.

As an alternative of repeating errors of the previous, I name on fellow prosecutors to work to proper wrongs and embrace the felony justice system of our future as one that’s truthful, simply and equitable.

Sherry Boston is the district legal professional for DeKalb County, Georgia.

“Views” is a daily function written by visitor authors on entry to justice points. To pitch article concepts, electronic mail

The opinions expressed are these of the creator(s) and don’t essentially mirror the views of their employer, its shoppers, or Portfolio Media Inc., or any of its or their respective associates. This text is for common info functions and isn’t meant to be and shouldn’t be taken as authorized recommendation.

[1] “Developments in U.S. Corrections.” The Sentencing Venture. Final Up to date Could 2021. Pg. 3.

[2] A number of States have retained statutes that criminalize abortions that pre-date Roe v. Wade, 410 U.S. 311 (1973). See Code of Alabama 13A-13-7 (punishing abortion with as much as twelve months of laborious labor and $1000 tremendous), Tex. Pen. Code. Artwork 1911 (punishing abortion with as much as 5 years in jail). Different States have just lately handed statutes that severely restrict entry to abortion by way of varied means. See Tenn. Code Ann. 39-15-201 (restricted abortions obtainable to state residents solely); 63 Okl.St. 1-731 (limiting the category of physicians approved to carry out abortions); La. R.S. 40:1061.1.3 (prohibiting any abortion when a fetal heartbeat is detected).

[3] Kortsmit Ok, Mandel MG, Reeves JA, et al. Abortion Surveillance — United States, 2019. MMWR Surveill Summ 2021;70(No. SS-9):1 — 29. DOI:

[4] “Drug Battle Statistics.” Drug Coverage Alliance.

[5] “Undoing the Injury of the Battle on Medicine: A Renewed Name for Sentencing Reform.” The Management Convention on Civil and Human Rights. June 17, 2021.

[6] George Santayana, Lifetime of Motive, Motive in Widespread Sense (New York: Charles Scribner’s Sons, 1905), 284.

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