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| Sherry Boston |
In the months since, fear and uncertainty have remained in the wake of this monumental course reversal. Many of us in the legal community, particularly in the prosecution space, have struggled to make sense of it all.
There are layers of legal nuance and ambiguity through which we must sort. Truth be told, I cannot think of any area of law that is as confusing as this one, now left to each state to interpret and codify at its respective will.
However, what is clear is that reproductive freedom and personal health care rights are under attack, and subject to criminal inspection and prosecution.
But many questions remain. How vigorously will these laws be enforced? Who will be caught in the crosshairs? How will various state laws affect the rights of those in jurisdictions with conflicting laws?
The history of the war on drugs provides a cautionary tale. We would be wise to heed the lessons learned from the ill-fated legislation of the past that continues to threaten our future.
Vulnerable Populations Most Affected
The war on drugs disproportionately affected persons of color and marginalized communities who found themselves ensnared by targeted enforcement tactics and disparate sentencing at a greater rate than their white counterparts.
The false narrative and unjust sentencing distinctions made between crack and powder cocaine remain the most poignant examples of this abuse, leading to much of the mass incarceration we now face in its wake.[1]
Similarly, excessive abortion restrictions[2] disproportionately affect persons of color and those from vulnerable, marginalized communities, putting them at increased risk for criminalization.
According to 2019 data from the U.S. Centers for Disease Control and Prevention, abortion rates and ratios were 3.6 and 3.3 times higher among non-Hispanic Black women than their white counterparts, and 1.8 and 1.5 times higher among Hispanic women compared to their white counterparts.
The factors leading to higher abortion rates among certain racial and ethnic minority groups are complex, according to the CDC. It has stated:
In addition to disparities in rates of unintended pregnancies, structural factors, including unequal access to quality family planning services, economic disadvantage, and distrust of the medical system might contribute to observed differences.[3]
What's more, criminalizing abortion means making family planning care available only to those with the financial means to travel across state lines to access legal clinical abortion care and/or abortion-inducing pills — leaving those with fewer resources unable to do so.
Drug Use and Addiction Remain Prevalent
Despite the war on drugs' stated objectives of ridding our streets of drugs and curbing addiction, drugs remain an accessible and prevalent part of our society to this day.
According to the Drug Policy Alliance, drug offenses are the leading cause of arrest in the U.S. In 2020, there were more than 1.1 million arrests for drug law violations, the vast majority of which were for personal possession.
Black people represent 24% of those arrested, while only making up 13% of the U.S. population, and "despite the fact that Black and white people use and sell drugs at similar rates.[4]
According to a statement by the Leadership Conference on Civil and Human Rights, "Despite the dramatic uptick in incarceration, there is no indication that these sentences deter crime, protect public safety, or decrease use or trafficking."[5]
So, what is the takeaway? Just as overly punitive sentencing does not prevent drug access or use, criminalizing abortions will not stop people from having abortions. It will simply increase the likelihood that women will obtain unsafe abortions or attempt to end their own pregnancies without medical assistance.
Further, the threat of criminalization will deter women from seeking reproductive health care and erode patient-provider relationships.
Public Safety and Trust Erode
Marginalized communities and persons of color who have long been overpoliced and underprotected by the criminal justice system have a distrust of law enforcement and its criminal justice players.
Much of this sentiment has been spurred by decades-long policies, biases and overreach associated with the war on drugs. It is, in fact, part of the undercurrent of the criminal justice reform movement.
Criminalizing abortion, likewise, undermines public safety by isolating people from critical law enforcement, medical and social services. For example, individuals experiencing miscarriages may refuse to seek medical help, even amid signs of complications, for fear they will be investigated for a crime.
Prosecutors, police and medical partners cannot effectively perform their work when many victims and witnesses of crime or other emergencies are unwilling to cooperate in criminal prosecutions for fear that their private medical decisions will be exposed and criminalized.
Where We Go from Here
As we begin to undo the harm caused by the war on drugs, it is my hope that we can proactively prevent the unnecessary harm associated with the ban on abortion.
To that end, I have vowed not to prosecute women, their providers and those who assist them for decisions and actions related to reproductive health care, and I encourage other prosecutors to carefully consider the best path forward to reduce harm in their jurisdictions.
As district attorney, it is my duty to proceed with prosecutions that are in the best interest of the community for which I was elected to serve. I do not take my prosecutorial discretion lightly. I believe my overarching role is to keep my community safe, but that will not always equate to punitive action that results in prison time.
It may mean serving as a conduit to appropriate services for citizens in my community — or it may mean choosing to prioritize the prosecution of certain offenses over others. It is a mindset shift for many, but not a new concept.
Prosecutorial discretion has always been a tool used in our practice. As ministers of justice, we have a responsibility to be the standard-bearers in prosecution. Is your community safer because you prosecute someone and send them to prison? Or is your community safer because you diverted someone out of the system and helped them solve underlying issues that contributed to their crime?
It is not a one-size-fits-all solution. Prosecution requires a comprehensive and holistic approach. If I use my discretion wisely and focus my office's limited resources on violent and quality-of-life crimes that are truly affecting community safety, I believe I am serving my constituents well.
Beyond my community, as we work collectively on a national level to reimagine a criminal justice system that operates in a just way for all, I'm reminded of the words of writer and philosopher George Santayana: "Those who cannot remember the past are condemned to repeat it."[6]
To that end, I believe we have an obligation to learn from the devastating lessons of the war on drugs. We cannot continue to do things the same way and expect different outcomes.
Instead of repeating mistakes of the past, I call on fellow prosecutors to work to right wrongs and embrace the criminal justice system of our future as one that is fair, just and equitable.
Sherry Boston is the district attorney for DeKalb County, Georgia.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] "Trends in U.S. Corrections." The Sentencing Project. Last Updated May 2021. Pg. 3. https://www.sentencingproject.org/wp-content/uploads/2021/06/Trends-in-US-Corrections.pdf.
[2] Several 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 up to twelve months of hard labor and $1000 fine), Tex. Pen. Code. Art 1911 (punishing abortion with up to five years in prison). Other States have recently passed statutes that severely limit access to abortion through various means. See Tenn. Code Ann. 39-15-201 (limited abortions available to state residents only); 63 Okl.St. 1-731 (limiting the class of physicians authorized to perform abortions); La. R.S. 40:1061.1.3 (prohibiting any abortion when a fetal heartbeat is detected).[3] Kortsmit K, Mandel MG, Reeves JA, et al. Abortion Surveillance — United States, 2019. MMWR Surveill Summ 2021;70(No. SS-9):1 — 29. DOI: http://dx.doi.org/10.15585/mmwr.ss7009a1.
[4] "Drug War Statistics." Drug Policy Alliance. https://drugpolicy.org/issues/drug-war-statistics.
[5] "Undoing the Damage of the War on Drugs: A Renewed Call for Sentencing Reform." The Leadership Conference on Civil and Human Rights. June 17, 2021. https://civilrights.org/resource/undoing-the-damage-of-the-war-on-drugs-a-renewed-call-for-sentencing-reform-june-17-2021/.
[6] George Santayana, Life of Reason, Reason in Common Sense (New York: Charles Scribner's Sons, 1905), 284.