PREGNANCY POLICE: SENDING WOMEN TO JAIL IS NOT THE ANSWER

Grabar, Mary

Pregnancy Police Sending women to jail is not the answer BY MARY GRABAR Jennifer Johnson, an indigent twenty-five-year-old African-American, had the dubious distinction last year of being the...

...Her April 1989 conviction was for two of her children, born in January 1989 and October 1987, who tested positive for a cocaine derivative at birth...
...is not a defense...
...The mother's addiction overrides everything to the welfare of her child...
...The prosecutor and judge went a long way toward making law...
...Her youngest, Jessica, was taken away from her the day after she was born...
...Her requests for help were used in court as evidence...
...Judge Suzanne DelVecchio said the indictment was unconstitutional and a violation of the woman's right to privacy...
...Yet, pregnant and postpartum women, especially if they are minority and indigent, are tested for illegal drugs...
...If doctors and nurses act as agents of the state, they ought to wear badges...
...Under sentencing guidelines in Johnson's state of Florida, such an offense could have carried a five-and-a-half- to seven-year prison sentence...
...The sponsor of the other misdemeanor bill was Democrat Ralph David Abernathy III, son of the civil rights leader...
...The commonwealth's interest in proConfidentiality may be violated...
...But it has been tried...
...An Atlanta Journal-Constitution poll of Southerners showed 71 per cent in favor of prosecuting women for taking drugs, 45 per cent for using alcohol or cigarettes, and 11 per cent for not eating the "right foods" or getting "proper exercise," if it could be shown that these habits harmed the baby...
...Under recently passed Florida law, a child with drugs in its system is automatically an abused child, and physicians are required to report such findings to the Florida Department of Health and Rehabilitative Services...
...The choice to use or not use cocaine is just that—a choice...
...At least eighteen of these cases have been brought in South Carolina...
...That is what worries Atlanta attorney Seth Kirschenbaum, who is representing Coney pro bono...
...Drug-addiction counselors and recovering addicts interviewed for this article described addiction as a physiological response over which an addict has no control...
...At that point, says Deen, before the umbilical cord is cut, it "is really only something arbitrary delivering drugs to that baby, just like a straw or a hypodermic needle...
...Since 1986, at least fifty women across the country have been charged or prosecuted for distributing illegal drugs or alcohol through the umbilical cord...
...In Georgia, a second conviction carries a life sentence: "It's not just a theoretical case here...
...After spending fifteen months in treatment, Johnson is now working and waiting for a hearing on regaining custody of the children...
...Laws on the books in some states specifically address drug use during pregnancy as child abuse...
...In 1986, after her two-month-old son died, Pamela Rae Stewart was charged with child abuse for "willful failure to provide medical attention to a minor child...
...They ought to wear badges...
...State legislatures are holding hearings on such bills, sometimes at the prodding of anti-abortion legislators...
...Since her arrest, Johnson's three youngest children have been cared for by a relative in the Northeast...
...In his opinion, the judge who convicted Johnson wrote that "the fact that the defendant was addicted to cocaine...
...She added that making education, medical care, and drug-treatment facilities available to pregnant women would be a better way to deal with the problem of addiction...
...Instead, with the generous request of her prosecutor, Jeff Deen, the assistant state attorney for Seminole and Brevard counties, Johnson spent only several weeks in jail and then was transferred to a long-term drug-treatment facility...
...Johnson's two older children were removed before she was arrested...
...State legislatures are already reacting to such prosecutions...
...She waived a jury trial because, according to defense attorney Jim Sweeting, public opinion in the "extremely conservative" north Florida Bible Belt town of Sanford was such that "some would have burned her at the stake if they could...
...at least a month in a residential facility, followed by several months in a halfway house (with on-site child care, job training, education) is the ideal program, but only a dream for most...
...Recently released, she faces fourteen years of probation, during which she must advise her probation officer of pregnancy and "seek prenatal care to be approved by this court...
...She has been subject to periodic court-ordered tests for compliance...
...It may sound novel, but when it quits being novel you're gonna see real progress made...
...Deen counters, "Whose civil liberties are more at stake, this little baby who never gets the chance or this woman whose right to privacy is being defended so she can use cocaine and if in fact there is a right to privacy which we maintain there isn't...
...This decision will be circulated around the country and cited everywhere," she told the Boston Globe...
...There is also concern that judges do not understand addiction...
...In Johnson's case, test results were then forwarded to the Sheriffs Department...
...Nancy Gertner, an attorney who argued as a friend of the court for dismissal of the charges against twenty-four-year-old Josephine Pellegrini, said the Massachusetts decision—the first of its kind—could be used as a precedent nationwide...
...a major Charleston public hospital instituted, in the fall of 1989, a new policy of reporting positive drug screens to the police...
...Although the case was thrown out, a bill was introduced the following year in the California legislature to amend child-abuse statutes to include abuse to fetuses...
...In Georgia, two "crack baby" bills were introduced in the 1990 session of the General Assemby...
...These charges included engaging in sexual relations with her husband during pregnancy and not getting prompt medical treatment when she started bleeding during pregnancy, in disregard of doctor's orders...
...The health officials Johnson had confided in about her addiction became witnesses for the prosecution...
...tecting potential human life should not be effectuated with the impositions of criminal sanctions," the judge ruled...
...The state's interest would be further undermined when women seek to terminate their pregnancies for fear of criminal sanctions...
...Reportedly, Fachini took inspiration from Deen's success across the state border, but she is testing it further: In the indictment, Coney is accused of "distributing [cocaine] between January 1, 1989, and September 23, 1989...
...Pregnancy Police Sending women to jail is not the answer BY MARY GRABAR Jennifer Johnson, an indigent twenty-five-year-old African-American, had the dubious distinction last year of being the first woman in the country to be convicted of distributing a controlled substance to a minor—through the umbilical cord...
...Deen, a large, dark-bearded man, exudes the confidence of somebody on his way up at a relatively young age...
...Says Jeff Deen: "We're not really doing anything all that unusual in the big scheme of criminal prosecution...
...In Massachusetts, however, a Plymouth Superior Court judge recently threw out an indictment charging a woman with providing cocaine to her unborn son...
...Deen contends, "We've got a good law that works...
...Last December, a Tennessee man succeeded in obtaining a restraining order prohibiting his estranged pregnant wife from drinking alcohol or taking drugs...
...He sees Johnson's case as "a very classical example of child abuse...
...As a pregnant recovering cocaine addict put it, "It ain't no happiness": The overwhelming craving is accompanied by rock-bottom depression and guilt...
...Although the charges of child abuse have been dropped (for lack of evidence, since both of Johnson's babies are apparently healthy), Deen rests his case on the two counts of "delivery of a controlled substance to a minor...
...In Margaret Atwood's futuristic chiller, handmaids, who are used for breeding purposes, are severely restricted: They cannot drink alcohol or coffee, cannot smoke cigarettes, and are subject to monthly pregnancy tests...
...Coney was able to get treatment only at a seven-day detox center, and addiction counselors agree that seven days is not nearly enough time...
...Sweeting accuses Deen of "abuse of judicial prerogative...
...Two months before the Georgia legislature began its session in January, Denise Fachini, assistant district attorney in Crisp County, filed charges against Doris Coney, an indigent twenty-two-year-old African-American addicted to cocaine...
...Here in Cordele it's like sentencing them to nothing...
...The results are forwarded to social-service agencies and are then used by the prosecution...
...Jennifer Johnson's attorney says the doctors and nurses who treated her "acted as agents for the state...
...In the process, doctor-patient confidentiality may be violated...
...In Georgia, a conviction for distributing cocaine usually carries a five- to thirty-year sentence, and the "judge has a lot of discretion...
...The way Deen describes it, Johnson's conviction was for her own good: "What has probably happened is that Jennifer Johnson's life has been saved and certainly she's not going to have another cocaine baby...
...This, he maintains, happened in the sixty to ninety seconds after the babies were "evacuated" from the mother...
...One, which would have made it a felony offense, was introduced by "pro-life" Representative Roy Allen from Republican suburban-Atlanta Gwinnett County...
...In today's climate, one does not need an overactive imagination to foresee pregnant women under house arrest...
...Both bills were killed for the session...
...No one pays closer attention to polls than politicians...
...This court will not permit the destruction of this relationship by the prosecution...
...Her first court-appointed attorney had her plead guilty...
...The American Civil Liberties Union has appealed Johnson's conviction, contending that the criminal statute was distorted, that such actions will discourage women from seeking prenatal care, and that it violates the Eighth Amendment ban on cruel and unusual punishment in that it punishes status (pregnancy), not conduct...
...It] should keep any prosecutor from bringing these cases and more significantly it should keep the legislature from amending the criminal statutes to include crimes by mothers against fetuses...
...Deen cites an ABC poll which showed 82 per cent in favor of prosecuting women for drug use during pregnancy...
...Fachini declines to discuss the pending Coney case specifically, but concedes that typically someone with a "drug problem" gets probation and "we sentence them to drug counseling...
...There is no familial bond more intimate and more fundamental than that between the mother and the fetus she carries in her womb," DelVecchio wrote in a sixteen-page opinion...
...knowing there would be intrauterine transfer of said cocaine to the unborn child...
...Fachini concedes there are not enough drug-treatment centers...
...Such evidence gathered in hospital emergency wards is not enough to prosecute on drug charges...
...There is a double standard in prosecuting women for having a controlled substance in their urine or blood, says Atlanta attorney Margie Pitts Hames...
...By imposing criminal sanctions, a woman may turn away from seeking prenatal care for fear of being discovered, thereby undermining the state's asserted interests...
...He scoffs at the idea that such actions could lead to "pregnancy police," to greater monitoring and prosecution for legal but harmful activities, such as drinking alcohol or failing to get proper rest...
...Mary Grabar is a free-lance writer in Atlanta...

Vol. 54 • December 1990 • No. 12


 
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