Tennessee Judge Sam Benningfield’s “time off for birth control” offer for drug offenders was short-lived, but in the process, the White County program highlighted a number of issues in the U.S. justice system. In a story first reported by News Channel 5, the judge explained that he would give 30 days off to offenders who got vasectomies or birth control implants because “I hope to encourage them to take personal responsibility and give them a chance, when they do get out, to not to be burdened with children. This gives them a chance to get on their feet and make something of themselves.”
Benningfield rescinded the program almost as soon as it hit headlines, but it had been going on since May. It had many, including the Tennessee Department of Public Health and the American Civil Liberties Union (ACLU) of Tennessee, crying foul. This is clearly an instance of infringement on reproductive autonomy, with inmates effectively coerced into making a very serious “choice.” And while the eugenics implications are clear, Judge Benningfield’s initiative brought up another problem: the growing scope of the opioid epidemic, and the steadily increasing numbers of people interacting with the justice system because of their struggles with it.
Forcible sterilization may have been common practice in the early 20th century, even bolstered by U.S. Supreme Court rulings, but ethicists today generally agree it’s unacceptable. That doesn’t mean it doesn’t happen anymore. People in the justice system are often particularly vulnerable, as illustrated very recently in California, when more than 100 inmates incarcerated for a variety of crimes—many of whom were women of color—were sterilized in questionable conditions. Tennessee is also no stranger to modern-day eugenics; sterilization was a part of plea deals for women facing child neglect charges at least four times in the last five years.
And, experts note, it is not an effective way to address social crises—including drug dependency. Since opioids are the current looming drug crisis in the United States, it is likely this form of reproductive coercion involved some prisoners facing these drug charges. Their cases have big implications for how we talk about successfully managing a challenging epidemic.
Sex. Abortion. Parenthood. Power.
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According to the American Society of Addiction Medicine, some two million people in the United States in 2015 struggled with dependence on prescription opioids like fentanyl, hydrocodone, and oxycodone. Another 591,000 were affected by the chemically related heroin. Consequently, drug overdose has turned into a leading cause of accidental death: 20,101 people died of prescription opioid overdoses in 2015, while 12,990 fatally overdosed on heroin. This is an epidemic with serious consequences for people with opioid dependence as well as their families, loved ones, and communities.
When it comes to drugs overall, more than 95,000 people are in federal prison for drug offenses—almost half the federal prison population—and another 210,000 are in state custody. Beyond possession and dealing charges, many people face penalties for offenses related to trying to obtain drugs, with their dependency colliding with the legal system when they go to desperate measures for cash or drugs. Rebecca Haffajee, a faculty member at the Michigan School of Public Health who specializes in health management and policy, told Rewire that drug-related offenses like larceny and shoplifting often involve “people trying to get money so they can get drugs.”
The justice system is often intertwined with the drug epidemic, and frequently not to the benefit of those dealing with substance abuse. And the false choice presented by Judge Benningfield, Haffajee says, skates over a significant issue. “Jail time is actually an increased risk factor” for overdoses, she explained. “The overdose risk is highest for those just released from prison.” Drug offenders in the justice system are rarely given the opioid agonist therapy and counseling they need to address their dependency, but after enforced detox in jail and prison, they return to the outside world, attempt to use the dose their bodies were accustomed to prior to incarceration, and die.
Some states, including Tennessee, are experimenting with different approaches for dealing with drug-related offenses. Robert Heimer, a professor of epidemiology at the Yale School of Public Health, also brought up Seattle’s pre-arrest Law Enforcement Assisted Diversion (LEAD) program, which allows agencies to redirect potential low-level offenders to resources, instead of jail. The program, he said, “is probably much more effective than post-arrest because arrest disrupts lives.”
Brendan Saloner, a faculty member at the Johns Hopkins Bloomberg School of Public Health, agreed, “Certainly the preliminary data from LEAD Seattle is suggestive. It looks very promising that it’s a good tool to increase treatment and reduce recidivism.” He noted that local programs like that one are “very important” for getting people into treatment and recovery.
Drug courts, also known as diversion courts, may focus on the public health aspects of addiction to connect drug offenders with what Haffajee calls “bridge services,” including housing and employment assistance and access to treatment. Some drug courts, however, effectively criminalize addiction and may present obstacles to medication-assisted treatment.
Overall, the quality of such programs is variable, and they need all funding and research to understand which methods work and which do not.
The effects of opioids on communities are such a hot-button issue that it’s even become a major bargaining point in the ongoing debate over health-care reform. Lawmakers of both parties from states ravaged by increases in overdose deaths and other opioid-related issues were deeply concerned about the effects of funding cuts on their constituents.
Coverage for opioid treatment, says Heimer, is “not just helpful. Without it, people can’t afford the treatment they need. Treatment is not expensive relative to [others], but it does not come without a cost.”
Saloner noted that addressing the issue involves providing people with access to treatment, not criminalizing their illness. But Attorney General Jeff Sessions has been championing a “war on drugs” rhetoric at the U.S. Department of Justice—a move advocates say will be a costly mistake, of the kind that led to the mass imprisonment of people of color for decades.
However, the handling of today’s opioid crisis carries striking differences from that mass imprisonment, which have to be acknowledged in discussions about how to confront the epidemic. As Haffajee commented, “This is a largely white, middle-aged, lower middle-class epidemic.” White County, where Judge Benningfield works, is nearly 96 percent white, and drug overdose fatalities in the state of Tennessee are, according to the Tennessean, largely opioid-related, “overwhelmingly white,” and “mostly male.”
Although Benningfield’s particular approach was horrifically punitive, he wasn’t keeping pace with the rest of the state, or the country. Even as federal officials like Sessions preach crackdowns, cities and states are looking at harm reduction tools and diversion courts to support individuals, while still targeting dealers. Politicians and law enforcement are dedicating more proactive resources to treatment and support—at least in white communities.
If the opioid epidemic has become an object lesson in racialized disparities and a reminder that criminalizing people with drug dependence doesn’t work, the situation in Tennessee highlights the stakes. Restricting access to reproductive rights doesn’t provide people with access to drug treatment, but it does perpetuate harmful rhetoric and social attitudes.
“If our ultimate goal is keeping kids protected, safe, and creating opportunities for kids to grow up in intact families, then we need to help their parents. Forced sterilization is a nonstarter in my mind,” said Saloner.