Justice, Health, and Democracy

For the last five years, the Edmond J. Safra Center for Ethics has sought to de-silo work in the justice reform space, health equity space, and democracy reform space. Our argument has been that these domains are all interconnected. Take, as an example, the issue of substance use disorder and the opioid crisis: the tools of criminal justice and policing are fundamentally incompatible with what is ultimately a health issue, yet health professionals cannot on their own address a phenomenon that is deeply entangled with the legal system, and with the relationship between the pharmaceutical industry, lobbying, and democratic decision-making. We have sought to lay intellectual foundations for transitioning policy-making in response to social problems and dilemmas from a criminal justice frame to an individual and public health and well-being frame. The pandemic crisis has made that work only more important.

The COVID-19 pandemic has laid bare that the American social contract is fundamentally broken. The instinct of many, at the onset of the crisis, was to imagine abandoning parts of our population to the disease because “there was nothing to be done” for them: the elderly, incarcerated people, essential workers. Then our elected officials posed false choices—presuming from the get-go that there would be a necessary trade-off between protecting health and life and protecting the economy instead of beginning the inquiry by seeking out how best to maximize alignment among the objectives of securing lives, livelihoods, and liberties.

In fact, there was a solution that aligned these objectives: significant, rapid public investment in public health infrastructure. We needed to convert a public health infrastructure that was akin, when the crisis hit, to a network of country roads to the equivalent of an interstate highway system. This would have permitted us to suppress COVID. Our governance structures, however, were incapable of delivering the public good.

Our failure to see and implement these solutions is intertwined with the structural failures of our democracy. Citizens and policy-makers have been pointing to problems and potential solutions in the domains of health and justice for more than a decade, yet political institutions are not responsive, do not empower ordinary people, and fail to provide equal access to voice and representation. Failures not only of equal representation but of any representation, deep corruption in the market for power, and the disconnection of the political establishment from the citizenry has so undermined the pillars of political system that we are seeing a collapse of effective governance in many areas. New America’s work on “the politics of public policy” explores why and how issues come to dominate the policy agenda: whose interests are served by the framing of what are and are not important public problems.

Thus the collapse of effective governance in the U.S. is another key feature of our broken social contract. The delivery of public health and safety is a core function of government; equal protection of the law is a core promise of democracy, and specifically of American democracy. The disparities in mortality between African American and Latino/a Americans and others make a mockery of that promise. They have also laid bare how failures of equity are a vulnerability to our society as a whole as well as an injustice to those experiencing them.

Both of these problems also pertain in the space of justice reform. Nearly 2.5 million people are currently incarcerated; an additional 5 million are under penal supervision. Half of the country is related to someone who has spent time in prison. Yet we do not hear those stories and experiences in anything like the volume of their actual existence. A stone of silence holds backour full reckoning with a penal system of historically unprecedented scale. This silence is its own form of abandonment. It means that as a society we aren’t yet willing to fully see and hear what we have done.

In this domain, too, a collapse of effective governanceis a core problem. Scholars and activists have been proposing alternative approaches to policing and the administration of justice for decades. Only the financial crisis of 2008 began to motivate change and even with that motivation, more than a decade beyond that crisis, we have by no means initiated a fundamental transformation of the administration of justice. Our political institutions, in other words, have not been responsive to steady, insistent, well-informed, and well-reasoned proposals for change. This, too, is a failure of governance. And again issues of racial inequity plague the administration of justice.

It is stunning to hear exactly the same thing said about both COVID and incarceration: The U.S. has 5% of the world’s population yet 25% of its incarcerated population and 25% of its COVID cases.

Rebuilding a healthy social contract for the U.S. first requires focusing on health as a necessary foundation for the “safety and happiness” of the people. Those are the words used in the Declaration of Independence as a translation of the ancient Roman dictum salus populi suprema lex esto (“the health of the people is the supreme law”). We have to begin the pursuit of a foundation for health in this country from the principle that we do not abandon anyone, from a concept of solidarity that is a deep but submerged strand in American history. We must also expand our understanding of health from a strictly medical definition to a social definition, one that supports human flourishing.

Second, we have to replace an inequitable system for the administration of justice with an equitable system. A key prong of this work is wherever possible to replace criminalizing responses to social ills with the tools and resources drawn from a framework of individual and public health. The goal is to develop resources of social resilience, based on equity and social connection. Securing a foundation for health for all members of society also provides a foundation on which to rethink the administration of justice.

Finally, achieving both of these things requires us to attend directly to the locus of democratic decision-making, which in turn requires a rethinking of the relationship between state and federal responsibilities. The center of gravity for the areas of health and justice, and closely related areas like education, is state and local government. Policy work over the last few decades has paid insufficient attention to this fundamental feature of the U.S. system. It’s time for us to invest in all the ways our federal system can be an asset, and to rebuild effective approaches to governancethat knit together the many layers of our system.

To pursue the work of laying a foundation for health equity and social resilience, a transformation in the administration of justice, and innovation in effective governance, we will pursue the following agenda in the near term:

  1. Continue policy-development and implementation focused on COVID response with the overarching goal of helping to build a pandemic resilient public health infrastructure for the country, designed to ensure a foundation for health equity; this also requires integrating understanding of the public health infrastructure with analysis of economic opportunity and analysis of the interaction between health infrastructure and educational opportunity;
  2. Pull together experts from multiple domains – housing, education, family and community care, employment, and inclusive finance – to develop strategies to increase social and economic resilience, with a particular focus on decreasing racial inequity;
  3. Work with a variety of partners—including elected officials, practitioners, and scholars—to align and concentrate efforts in the justice reform space with a health-focused paradigm and with the “principle of association,” which stresses the value of activating positive social connections throughout the process of response to wrong-doing as the best restorative justice approach to community health and well-being;
  4. Characterize and document the innovative approaches to federalism and democratic governance that we are developing, which we dub “collaborative federalism,” and engage elected officials, practitioners, and scholars in experimentation with new strategies of governance.

 

We undertake this work in partnership with the think tank, New America.
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