Text 21748, 128 rader
Skriven 2006-08-04 15:45:22 av Alan Hess
Ärende: cocaine baby cases reversed
===================================
The point made by the judges seems valid.  If women who use drugs while
pregnant (stupid as that is) can be prosecuted and punished for the damage that
inflicts on their babies, and not just for their drug use, any woman who gives
birth to a baby that isn't perfectly healthy could conceivably face charges for
consuming unhealthy things or performing activities deemed possibly hazardous
to her developing fetus while pregnant.  Who would decide which activities or
consumptions should be denied pregnant women, and which are acceptable?  It's a
difficult issue - I expect some different positions in responses.

This doesn't mean women like these shouldn't be punished for their illegal
activities (as they were), and their babies should be taken away from these
irresponsible mothers until the mothers clean up and get out of jail (if they
get jail time), and, if they don't clean up, the babies should be put up for
adoption.  
********************


http://www.baltimoresun.com/news/local/bal-te.md.court04aug04,0,347300.story?c
oll=bal-pe-asection

From the Baltimore Sun
Cocaine baby cases reversed
Md. high court rejects reckless endangerment convictions for drug use by
pregnant women


By Stephanie Desmon
Sun staff

August 4, 2006

Maryland's highest court yesterday threw out the convictions of two Eastern
Shore women who were sent to prison after their babies were born with cocaine
in their systems, likening the prosecutions to going after mothers who smoked,
failed to exercise or even went horseback riding while pregnant.

While social workers regularly get involved when newborns test positive for
drugs, Talbot County appears to be the only place in Maryland - and just one of
a few in the nation - where police and prosecutors were putting mothers in
prison for it.

Within hours of the court's opinion yesterday, Talbot County State's Attorney
Scott G. Patterson said in a statement that his office disagreed with the
decision but would cease the practice of charging such mothers with reckless
endangerment.

"The court said quite clearly and forcefully that was improper, illegal and
can't be done," said David Rocah, an attorney with the American Civil Liberties
Union of Maryland, which represented one of the women. "The long and short of
it is, the prosecutor was trying to twist a statute that was never intended to
cover this condition and the court said, 'No, you can't do that.'"

In its unanimous ruling, the Maryland Court of Appeals noted that although a
pregnant woman may be prosecuted for drug possession, the legislature has
consistently rejected efforts to impose additional criminal penalties for the
effect her drug use might have on the child. The court agreed with the argument
of ACLU attorneys that such a tactic could deter women from seeking prenatal
care.

The General Assembly "obviously gave credence to the evidence presented to it
that criminalizing the ingestion of controlled substances - in effect
criminalizing drug addiction for this one segment of the population, pregnant
women - was not the proper approach to the problem and had, in fact, proved
ineffective in other States in deterring either the conduct or addiction
generally on the part of pregnant women," the judges wrote.

Jill Morrison, an attorney with the National Women's Law Center, which wrote a
brief in the case on the side of the two mothers, said that while few people
condone drug use by pregnant women, prosecutions of this type could keep
drug-addicted women from seeking proper medical care. Such care can mitigate
the potentially harmful effect drugs have on a baby, she said.

"You're driving women deeper underground, women who are sick essentially," she
said.

Other states made similar attempts to criminalize drug use by pregnant women
during the crack scare of the late 1980s and early 1990s. But in dozens of
cases, courts struck down criminal convictions as unconstitutional or beyond
lawmakers' intent. An exception remains South Carolina.

Both Talbot County women - Regina Kilmon and Kelly Lynn Cruz - were charged
with reckless endangerment after the birth of their sons. Cruz was convicted a
year ago and sentenced to 2 1/2 years in prison. She is out on parole, Rocah
said. Kilmon pleaded guilty to the charge in January 2005 and was sentenced to
four years in prison before filing an appeal. Neither woman could be reached
for comment yesterday. Four other women have also been charged over the past
several years in Talbot County, the ACLU said.

"This serves as a rebuke to those activist prosecutors who seek to use the
criminal law to advance their own political agendas," Rocah said.

Talbot County attorneys had argued that they were just trying to protect
children. "While the office of the state's attorney for Talbot County does not
agree with the whole of the opinion of the Court of Appeals in the Kilmon and
Cruz cases, we understand the court's reasoning and fully accept its decision
as a definitive statement of the law of Maryland on the issues generated by
these cases," Patterson said.

Kilmon's case came to the attention of prosecutors soon after the birth of her
son on June 3, 2004. The baby tested positive for cocaine through a drug
screening at Easton Memorial Hospital, where he was born. On Jan. 13, 2005,
Cruz gave birth to her son. She was 29 weeks pregnant, and toxicology tests
showed the baby had cocaine in his system - as did she.

Rocah said the court's opinion clearly shows it has no interest in "regulating
pregnancy via the criminal law."

The ruling speculates that widening the scope of behavior governed by reckless
endangerment statutes could make pregnant women vulnerable to criminal
liability for a wide range of activities, depending on "how aggressive,
inventive and persuasive any particular prosecutor might be."

The statute could be stretched, the judges wrote, to include "a whole host of
intentional and conceivably reckless activity that could not possibly have been
within the contemplation of the legislature - everything from becoming (or
remaining) pregnant with the knowledge that the child likely will have a
genetic disorder that may cause serious disability or death ... to failing to
wear a seat belt while driving ... to exercising too much or too little.

"Such ordinary things as skiing or horseback riding could produce criminal
liability."

stephanie.desmon@baltsun.com

Copyright + 2006, The Baltimore Sun | Get Sun home delivery

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