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Excerpted From: Charisa Smith, From Empathy Gap to Reparations: An Analysis of Caregiving, Criminalization, and Family Empowerment, 90 Fordham Law Review 2621 (2022) (145 Footnotes) (Full Document)


CharisaKiyôSmithThe opioid crisis sweeping the United States in predominantly white regions--as well as the horrific separation of undocumented Central American families at the U.S.-Mexico border--has brought unprecedented public attention to issues of substance abuse and family separation. While the “opioid blight” is decried by policy makers, law enforcement, and the media, the daily separation of low-income families of color in dependency courts for unwarranted reasons is either ignored or cast as an essential, benevolent, and protective function of the state.

A deep empathy gap is apparent when one compares the U.S. government's commitment to ameliorating the suffering among white families impacted by opioids with its disregard for low-income families of color ravaged by the family regulation system. The empathy gap is not simply about divergent public compassion for individuals who misuse drugs; it also involves presumptions about government interference with purportedly deviant families, despite evidence that the family regulation system (1) uses drug allegations as a pretext for initiating surveillance and family separation and (2) fails to ameliorate struggles caused by drug misuse, poverty, health disparities, failing schools, housing instability, and mental health challenges.

The Opioid Crisis describes the period beginning in the late 1990s and lasting until at least 2019, wherein widespread misuse, overdoses, and deaths resulted from both prescription and nonprescription opioids. An opioid is a substance that works in the nervous system or in specific receptors in the brain to reduce pain. As pharmaceutical companies in the late 1990s “reassured the medical community that patients would not become addicted to opioid pain relievers,” health-care providers “began to prescribe them at greater rates.” By 2017, the U.S. Department of Health and Human Services declared a public health emergency requiring urgent attention, citing U.S. Centers for Disease Control and Prevention (CDC) data that over “140 Americans die from drug overdoses” on a daily basis. As of March 2021, the CDC reported that, since 1999, nearly 841,000 people had died from a drug overdose, with over 70 percent of those deaths involving opioids.

The U.S. family regulation system, as well as the government's responses to caregivers struggling with substance use, further illustrates the existence of the empathy gap, and more importantly, why reforms are needed. Part I of this Essay provides an overview of the disability justice framework and other important concepts that are integral to a discussion of the empathy gap. Part II recounts the origins of the War on Drugs and its impact on low-income families of color, as well as the Opioid Crisis and its demographic dimensions. After illustrating the empathy gap and discussing media stereotypes and misrepresentations, Part II concludes by situating state violence and family regulation within a broader context of American history. Part III addresses more nuanced dimensions of the empathy gap--including developments during the U.S.-Mexico border crisis and the ongoing COVID-19 pandemic. Part IV ultimately reframes this matter in light of Professor Martha Albertson Fineman's theory of vulnerability and the human condition, as the pandemic necessitates a reimagining of status quo responses for struggling families. Finally, Part V recommends a way forward through several paths that are briefly described, yet worthy of increasing attention: (1) abolition of the existing family regulation system, including transformed legal norms to eradicate the unacceptable double standard, and (2) empowering fiscal responses--some of which are already underway.

[. . .]

Various developments in U.S. history have created what this Essay coins an “empathy gap” in parenting, racial and ethnic identity, class, and purported morality. Too often, excessive overreach of the family regulation system into U.S.-born communities of color makes these parents' plight invisible, if not demonized, even when placed alongside parallel narratives of white families in the Opioid Crisis or undocumented families at the U.S.-Mexico border. Although factors ranging from human behavioral psychology to structural oppression widen the empathy gap, pandemic-era public policies ironically breathe life into the responsive state that vulnerability theory considers necessary. As long as demographic shifts and evolving attitudes inspire empowerment among marginalized groups, this matter will continue to resurface and potentially spark innovation.

Associate Professor, City University of New York (CUNY) School of Law; J.D., Yale Law School; LL.M., University of Wisconsin Law School.

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