Criminalization does not begin with a crime

Most of us think criminalization begins after someone breaks a law. A person is arrested, charged, taken to court, or sent to jail. But that is already late in the process. Before any of those things happen, people have already decided who looks suspicious, who should be watched more closely, whose story sounds believable, and whose behavior needs an explanation.

Slave patrols were created to watch Black movement and stop enslaved people from traveling, gathering, or trying to reach freedom. After slavery, Black Codes made ordinary parts of life — such as being unemployed or standing in a public place — grounds for arrest when Black people did them. Convict leasing then sent many of those arrested people back into forced labor. Later came vagrancy laws, stop-and-frisk policies, and harsh drug sentences that again placed heavier watch and punishment on communities already labeled dangerous.

Public conversations about policing often center Black men, for clear reasons. But Black women and families can meet the same kind of scrutiny during pregnancy, birth, and early parenting. This can show up in who is tested for drug use, whose newborn is tested, who is reported to child protective services, or whose explanation is treated as less believable.

A national study estimated that 37% of all children in the United States are the subject of a child protective services investigation before their eighteenth birthday. Among Black children the estimate is 53%, against 23% of white children. That is a majority of Black children investigated at least once, and it is more than twice the white rate. So the question cannot only be whether one report or one test was allowed under policy. We also have to ask who is being tested and reported most often, what reasons are being used, and whether the same concern would lead to the same response for another family.

A healthcare worker may genuinely believe they’re protecting a baby, following hospital policy, or responding to a possible risk. Those are all reasonable things to want to do. But they don’t answer a different question: are the same concerns leading to the same decisions for every family?

The journalist Irin Carmon spent years following what this looks like from inside a family’s life. In Unbearable, she reports on Hali, jailed in Alabama under the state’s chemical endangerment law after a positive drug screen and left bleeding on a concrete floor while still recovering from birth. The law was written to protect children. What it produced was a postpartum woman in a cell.

A drug test may be appropriate in one situation and based on an assumption in another. A report to child protective services may protect a child in one case and unnecessarily pull another family into a stressful investigation with its own harmful impacts. The written policy may be exactly the same in both situations. What changes is how people interpret what they’re seeing, what they consider concerning enough to act on, and whether they would make that same decision if someone else were sitting in front of them. When the data consistently shows that Black families are being tested, reported, or investigated more often, it’s worth asking what might be contributing to that pattern.

This is one reason some Black families enter pregnancy and birth already carrying a certain amount of caution. They may wonder whether asking for help will bring support or unwanted scrutiny. They may wonder whether being honest about stress, housing, substance use, or mental health will lead to resources — or to consequences. Trust is difficult to build when people don’t know whether they’ll be met with understanding or suspicion.

This does not necessarily mean reporting rules should disappear. It means those rules have to be used with clear evidence and the same standards for everyone. We have to look at who is watched, who is believed, and who is reported — and change the process when the pattern shows that our choices are not fair.

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