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Excerpted From: José Felipé Anderson, The Urban Trauma Drama: The Intersecting Path of Criminal Justice and Public Health Revealed During the Covid-19 Pandemic, 14 Saint Louis University Journal of Health Law & Policy 515 (2021) (133 Footnotes) (Full Document)

JoséFelipéAndersonOur nation is once again in big trouble. The criminal justice system, already fraught with inequality, is now being further exposed by the unanticipated challenge of the COVID-19 epidemic. As we struggle to engage in police reform, sentencing reform, and bending the arc away from incarceration as a first response toward the public health arena, we find ourselves at another crossroads, where we should recognize that public health solutions create a more promising opportunity than the criminal justice system. The intrusion of this unexpected pandemic has provided us with a fresh opportunity to get it right. The colossal failure of the so-called war on drugs, and decades of ignoring the compound problems of urban America, have seated us at the threshold of stagnation in our efforts to solve some of our most daunting quality-of-life challenges. Drug addiction in most major American cities has spread throughout the entire nation, affecting police decisions nationwide.

Drama, in the colloquial sense, refers to something being trivial and/or troublesome. However, I use the term more so in alignment with the concept of the Greek drama, specifically the Greek tragedy. Poverty is often concentrated in urban communities, and this combines with the drama created by the trauma in those communities.

While gentrification has continued to create economic refugees, the contemporary strategies of urban revival combined with the decades-long adventure of suburban flight, as solutions to the American city's poverty problem, are collapsing simultaneously. The pandemic has only exacerbated the well-documented trend of increasing economic inequality in the United States. Many people in the country find themselves closer to unemployment or poverty than they are to economic stability and social mobility.

I do not intend to suggest that such challenges are restricted to urban communities. There is ample evidence that rural communities encounter similar difficulties. Public perceptions that exist against welfare recipients, through stereotypes about alleged lack of personal responsibility, further complicate the issue of economic inequality and make political solutions more difficult to reach. For example, although creative use of safe drug injection facilities have been demonstrated to reduce certain health care challenges outside this country, the United States Department of Justice has been unequivocal in its position that they are illegal under the federal Controlled Substances Act. Such hardline approaches may make expensive social problems like opioid addiction even more costly.

My focus, however, is on large urban centers with multi-member police forces and cumbersome criminal justice infrastructures that make law reform more difficult. The sheer volume of police-citizen contact amplifies implicit bias in urban communities. More blatant acts of police violence have been decreasing trust in law enforcement. Ideas like “broken windows policing,” which became popular in New York City and focused on arresting people for low-level crime, have made the police the enemy of urban people. In some instances, police intimidation has yielded examples of outright criminal conduct by police in these already beleaguered communities. Without substantial changes, this dynamic is likely to continue. Lurking amidst the despair is the stunning health care inequality among African Americans, which suggests a true public health crisis in major cities among minority communities. COVID-19 has made these issues in the criminal system hard to ignore. Under the significant pressure of the pandemic, it was confirmed that all social stakeholders, including government, private sector industry, health care, and policing infrastructures, demonstrated significant flaws. Those flaws indicate the absence of meaningful solutions to decades-long urban problems.

[. . .]

The nation's urban centers have had a disproportionate share of poverty and health related issues. At the same time, our society operates under the delusion that more incarceration in urban areas will make us safer. Changing from a rural society to an industrial society has concentrated both opportunity and suffering in American cities. Attempts to address these issues have been ongoing, however, minority groups have done a disproportionate amount of suffering as we attempt to resolve these problems. For example, Baltimore's attempt to begin trauma-informed practices is an appropriate start but the minority community still has disproportionate suffering from the opioid crisis. Exacerbated by the great migration of African-Americans escaping the Jim Crow South, the cities have absorbed a large amount of the people with the greatest health care and mental health needs. Jim Crow housing practices slowed the possibility of progress for many members of minority groups through the middle of the twentieth century. These practices affect both educational opportunity and access to other services taken for granted by members of the majority community.

The opioid crisis of the early twenty-first century, and the more recent COVID-19 pandemic, has magnified the challenges of major cities in ways that have never been contemplated. Despite these dire circumstances, this crisis may have led to a possibility that we could reset our focus and not repeat our “War on Drugs” mistake of the past. America's African American community has remained stuck for the last five decades in both housing and incarceration discrimination. Re-directing drug abuse through the healthcare system rather than the criminal system makes sense from an economic and public policy perspective. Recognizing these systemic barriers to equality should be a top priority for a nation such as America, which prides itself on valuing equal opportunity. A focus on workforce development and offender reentry is a valuable tool in the fight to change direction from a system hard wired with incarceration priority.

We should not double down on failed approaches that place only a Band-Aid on the problem and leave the nation exactly where we've been for the last several decades. We should use this crisis as an opportunity to reset and launch new initiatives that have some chance of success. In many ways, all of these tragedies combined have placed us at rock-bottom. What do we have to lose by trying something new.

Professor of Law, University of Baltimore School of Law, Adjunct Professor of Legal Studies and Business Ethics, The Wharton School, University of Pennsylvania.

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