If Baby Is Addicted and Dies Is Mitger Charged in Nm
Criminal Charges for Child Damage from Substance Apply in Pregnancy
Abstract
Despite the opposition of medical and public health professionals, several state legislatures are considering laws that allow child abuse charges for substance use during pregnancy. We reviewed legal decisions regarding women charged with a crime against a fetus or child as a result of substance use during pregnancy. We identified 24 judicial opinions published between 1977 and 2015 in cases involving 29 women prosecuted in xix states. Charges included child endangerment, kid abuse, drug delivery, attempted aggravated child corruption, chemical endangerment of a child, child neglect, child mistreatment, homicide, manslaughter, and reckless injury to a child. The substances related to the charges included cocaine, heroin, methamphetamine, marijuana, and prescription pills. Proceedings resulted in dismissal of the charges or convictions overturned for 86.2 per centum of the women. In all of the cases, the judicial decision depended on the disposition of the question of whether, for the purpose of adjudicating the criminal charges, a fetus is a kid. The balance in the courts in favor of treating substance use during pregnancy as a medical problem depends on the definition of a child for the purposes of criminal statutes. Professional advocacy may best be directed at state legislatures.
Criminalization of substance use during pregnancy because of harm to the fetus or child is fiercely debated. Some policymakers and law enforcement officials argue that criminal punishment deters substance use among pregnant women.1,–,3 In contrast, the medical model of addiction views substance employ disorders as chronic, relapsing diseases, with substance abuse during pregnancy an unfortunate, but common occurrence. In the medical model, treatment, non punishment, is the remedy to reduce consumption of substances during pregnancy.four Medical and public health experts are widely opposed to efforts to criminalize substance employ by significant women.5,–,8
Reflecting societal uncertainty well-nigh the best arroyo, legal penalties for substance use during pregnancy because of impairment to the fetus or child vary significantly among the states. Civil child corruption proceedings are explicitly permitted in 18 states.ix These may lead to termination of parental rights, simply not to prison sentences. Tennessee is the only country that has enacted a law that targets substance use past pregnant women on the basis of presumed harm to the fetus or child. The state legislature passed the law in 2014 explicitly to let criminal set on charges for illicit substance use in pregnancy and, on confidence, imprisonment.10 The impetus for the law was rapidly rising rates of neonatal forbearance syndrome, an opioid withdrawal syndrome in infants that may require prolonged monitoring in intensive intendance units.12 The law expired on July 1, 2016, based on a dusk provision in the original nib.10 No other states accept similar criminal statutes, only two other state legislatures recently debated criminalization to gainsay the opioid epidemic.13,xiv
Despite a lack of criminal statutes specifically targeting substance use by pregnant women in other states, women have been charged and, infrequently, convicted of a range of criminal offenses for illicit substance utilize while pregnant, including child corruption, set on, manslaughter, and murder.xv In ii states, S Carolina and Alabama, these convictions have been upheld by the state supreme court.xvi,–,xviii The issue of these rulings is to permit women to exist convicted for substance use during pregnancy nether existing laws that are not specific to pregnancy. To date, the Us Supreme Courtroom has declined to hear cases that heighten questions almost the constitutionality of such laws.
A substantial body of legal literature traces the development of case police force related to substance use during pregnancy and bug with criminalization of meaning women.fifteen,19,–,23 In this article, nosotros systematically review published legal cases of women charged with offenses causing harm to their fetus or child as a result of substance use during pregnancy, wherein the trial court decision was appealed. Given the opposition of medical and public health professionals to the criminalization of substance use during pregnancy, an understanding of both the range of criminal charges pregnant substance users may confront and the role, if whatever, that medical expertise has played in the arbitrament of these cases would inform understanding of the problem and of medical professional person advocacy efforts.
Methods
For the purpose of this review, we identified published legal decisions regarding women criminally charged with a crime confronting a fetus or kid for substance utilise during pregnancy from appellate level courts. Exact terminology for relevant crimes varies across states and wide inclusion criteria were used for initial example review. Cases wherein charges resulted in ceremonious proceedings only (e.thou., custody proceedings) were not included.
We conducted a LexisNexis search of published U.Due south. state and federal cases in these categories using the following search terms: meaning OR pregnancy AND cocaine OR methadone OR heroin OR controlled substance OR methamphetamine OR narcotic AND child abuse OR child neglect OR child endangerment OR assault OR homicide OR murder OR manslaughter. The search yielded 77 published cases, of which, on closer review, 16 were establish to be relevant. Additional cases were identified past reviewing the cases cited in the initial set of cases and published literature, yielding an additional nine cases. All of these cases were appellate decisions except for one published trial courtroom conclusion,24 which we talk over separately, given that trial court decisions are not typically published and do not resolve matters of law.
For each case, we recorded the charges, the substance abused, neonatal effect, legal resolution of the case, and judicial reasoning. We also identified judicial references to practiced or fact witness medical testimony and to medical literature or medical or public health-related amicus briefs. We developed categories of relevant variables to code a priori. 1 of the authors read six cases in random guild, abstracting information into the identified categories of variables to determine the applicability of the a priori coding scheme. Based on results of this analysis, the authors jointly finalized the coding scheme, which was then practical to all of the identified cases.
Results
Case Characteristics
A total of 24 published judicial opinions met the inclusion criteria (Table one). These 24 cases included 29 women in nineteen states who were prosecuted for criminal charges related to harm to a fetus or kid as a effect of substance employ during pregnancy. Charges included kid endangerment (n = eleven), kid abuse (n = 6), drug delivery (n = 4), attempted aggravated child abuse (north = 2), chemical endangerment of a child (n = 2), child neglect (north = ane), child mistreatment (n = ane), homicide (n = i), manslaughter (n = 1), and reckless injury to a child (n = 1). The get-go case was adjudicated in 1977 and the last case in 2015. Cases were decided by land supreme courts (n = xv) and state courts of appeals (due north = 14). Although the legal bases for appellate court decisions varied (meet Table i), the functional outcome was that the charges were dismissed (n = 14) or convictions overturned (due north = eleven) for 86.2 percent of the women (25/ 29). Convictions were upheld only in Alabama and South Carolina, involving a total of four women.
Table 1
Cases of Women Charged With Child Abuse–Related Crimes for Substance Use During Pregnancy
The substances related to the charges were cocaine (n = 15), methamphetamine (northward = 10), heroin (northward = 2), marijuana (n = 1), oxycodone (due north = 1), and unspecified prescription pills (n = 1). The pregnancies had the following outcome: no agin effects of the substance reported (northward = 12), withdrawal symptoms (due north = seven), prematurity and/or small size at nascency (n = 5), decease in the neonatal period (n = 3), and stillbirth (n = 2). Fetal or infant toxicology was reported in 24 of the pregnancies, and included positive findings for cocaine (northward = 13), heroin (n = 1), and methamphetamine (n = 8) and one case wherein testing was negative for the relevant drug oxycodone, but the infant nonetheless displayed signs of withdrawal.31
Rationale for Decisions
In the 22 judicial opinions wherein charges were dismissed or convictions overturned, all held that the legislature did non intend to include fetuses in the definition of a child or victim in the relevant statute. A representative case is State v. Wade, where the court stated, "The plain language of the kid endangerment statute does non proscribe conduct harmful to fetuses."40 The courts typically made explicit that whatsoever ambiguity in the statutes must be construed liberally in favor of the criminal defendant.
Boosted factors were relevant to the stated judicial rationale in at to the lowest degree some of the cases. Twelve opinions noted that other jurisdictions ruled similarly when faced with such cases. 6 ruled that the contested awarding of the statute to conduct during pregnancy violated due process, which requires that criminal offenses be defined in plain language and then that an ordinary person has off-white detect about the deportment proscribed. A representative example of this due process reasoning was expressed by the courtroom in State v. Martinez: "To aggrandize the ordinary significant of this statute would deny Accused reasonable discover that her actions were criminal, thereby violating her due process rights."39 Six courts held that assuasive the contested statute to apply to prenatal drug apply would in outcome permit it to be applied to a range of prenatal conduct non previously considered illegal, in effect opening the floodgates to prosecution of pregnant women. An example of this reasoning was articulated past the majority in Land v. Welch: The mother was a drug addict. Merely, for that thing, she could accept been a pregnant alcoholic, causing fetal alcohol syndrome; or she could accept been addicted to cocky abuse by smoking, or past abusing prescription painkillers, or over-the-counter medicine; or for that thing she could accept been fond to downhill skiing or some other sport creating serious run a risk of prenatal injury, risk which the mother wantonly disregarded as a thing of self-indulgence. What if a pregnant woman drives over the speed limit, or as a matter of vanity doesn't wearable the prescription lenses she knows she needs to run into the dangers of the road? [Ref. 31]
Four courts noted that allowing a conviction would effect in an absurd punishment scheme. For case, the Maryland state law that permits manslaughter or murder charges if a person kills a viable fetus has an exception that does not permit a woman to exist charged with manslaughter for deportment that led to the expiry of her own viable fetus. In Kilmon v. State, the court said, [I]t would be an anomaly, indeed, if the law were such that a meaning woman who, by ingesting drugs, recklessly caused the death of a viable fetus would suffer no criminal liability for manslaughter but, if the child was born alive and did not die, could be imprisoned for five years for reckless endangerment [Ref. 38].
Three courts stated that permitting prosecutions under the contested statute was counterproductive to state policy goals and public wellness. For example, the court held in State five. Gethers that, "fear of prosecution could deter pregnant drug abusers from seeking handling for drug problems."26 Thus, all of the courts whose decisions functionally overturned convictions or dismissed charges did so on the footing of legislative intent, but varied with respect to additional supporting legal arguments.
Merely two courts institute for the defendant, in part on the grounds that there was no medical prove to back up the charge. In Johnson v. State, the defendant was charged and bedevilled of two counts of commitment of a controlled substance to a minor via the umbilical cord after she reported to the treating obstetrician that she had smoked marijuana and crack cocaine the twenty-four hour period she went into labor. Her babe tested positive for cocaine shortly afterward birth. She had given nativity approximately one twelvemonth earlier to a child who had also tested positive for cocaine. The country argued that the drug delivery occurred via the umbilical cord in the period after birth but before the cord was clamped. A neonatologist who was an practiced witness for the defense force testified that the cocaine derivatives present in the children'southward urine were from exchange between the womb and placenta during pregnancy and that simply a tiny amount of cocaine derivative could have passed through the umbilical cord during the 30- to sixty-2nd menses afterwards the child was born and before the umbilical cord was cut. The Florida Supreme Courtroom found the medical testimony inadequate to support the trial court'due south finding that a "delivery" occurred during the birth procedure, fifty-fifty if the criminal statute had been applicable.29 In Arms five. State, Arms was also bedevilled of a drug delivery charge that was overturned by the state supreme court, in part on the grounds that the relevant statute, "does non expressly criminalize the passive bodily processes that results in a mother's utilise of a drug entering her unborn, or newborn child's system."45
Rationale for Dismissal by Trial Courtroom
One published trial court decision was identified.24 In this case, a New York trial courtroom in 1992 dismissed the charge of child endangerment for cocaine ingestion during pregnancy. The infant was born prematurely. The courtroom held that the legislature did not intend for the relevant statute to apply to conduct during pregnancy that affected fetuses. The court likewise referred to rulings by appellate courts in other jurisdictions that had held similarly in comparable cases.
Rationale for Upholding Convictions
In the three judicial opinions that upheld convictions, the court determined that the legislature intended to include fetuses in the definition of child for the purposes of the relevant statute. The South Carolina Supreme Court in McKnight five. State 17 referenced its before conclusion in Whitner v. South State xvi when it opined that, "in several cases this Court has specifically held that the Legislature's use of the term 'kid' includes a viable fetus." The court also pointed out that, afterwards the Whitner conclusion, the legislature did not modify the statute to exclude viable fetuses from its definition of child. Similarly, in Ankrom five. Land, the state supreme courtroom found that "the manifestly pregnant of the give-and-take 'child' is wide plenty to cover all children—born and unborn."18 When fetuses are included in the definition of child, the kid corruption statutes are so found to be applicative to the declared prenatal conduct.
Role of Medical Evidence
Of the 24 judicial opinions, simply ix directly referenced medical show in the form of medical good testimony (n = 7), published medical literature (due north = 3), or amicus briefs (northward = 1). Briefs from medical or public health organizations were submitted to the court in seven of the cases, all supporting the accused's position. In three of the cases in which medical adept testimony was referenced, the expert testimony was contradictory. For example, Amanda Kimbrough's child was born prematurely and died shortly after birth, having tested positive for methamphetamine. She was charged with chemical endangerment of a kid. The treating pediatrician opined that the cause of death was respiratory arrest secondary to prematurity, whereas the medical examiner said that the cause of death was astute methamphetamine intoxication.18 Two of the opinions16,30 that direct referenced published medical literature referred to data that supported the conclusion that cocaine use during pregnancy creates a substantial and well-established chance to the unborn child and that this result is inside the telescopic of public noesis. The other opinion33 that direct referenced medical literature did so to demonstrate the range of behaviors that are non legally proscribed (e.g., smoking, failing to obtain prenatal care) that are associated with poor neonatal outcomes.
Discussion
The discourse about criminalization of substance use in pregnancy suggests that women are at serious risk of successful prosecution for illicit drug utilise during pregnancy.viii,fifteen Based on our review of published judicial decisions, this does not appear to be the case in almost jurisdictions. Women charged with or convicted of crimes against their child or fetus related to substance utilize during pregnancy accept won on appeal much more ofttimes than they have lost. Information technology is, however, not known how many women, if any, take been convicted at the trial court level and not had their case heard at the appellate level.
The underlying legal question considered in the judicial decisions in these cases is whether, for the purpose of adjudicating the criminal charges, a fetus is a child. In Alabama and South Carolina, the majority of state supreme courtroom judges determined that the plainly meaning of the word "child" includes a fetus, or in their term, an "unborn kid."sixteen,–,18 In the other 17 states that considered the question, the opposite conclusion was reached: that is, a fetus is not a child in the eyes of the law in those jurisdictions. In other words, the key business concern in the judicial decisions to date has turned on the courts' interpretation of legislative intent. The decisions exercise not become then far as to say that it would be unlawful for the legislature explicitly to prohibit substance utilize during pregnancy, although questions about the constitutionality of such an approach have been raised in the legal literature.two,iii,twenty Rather, well-nigh of the decisions simply found that the legislature did not intend for the existing criminal laws to use to prenatal carry.
At least in theory, legislatures could amend criminal laws to brand clear that they intend them to utilise to prenatal behave that affects fetuses. An obvious example is the recent Tennessee law that explicitly made illicit drug use during pregnancy a class of criminal assault. In 2005, the Tennessee Court of Appeals overturned convictions based on guilty pleas for aggravated child abuse for methamphetamine employ during pregnancy in two cases combined as Richards 5. State.37 The judicial reasoning was that the women received ineffective assist of counsel, in that their attorneys should have argued that their conduct fell outside the scope of the constabulary, which at that fourth dimension was intended to employ only to behave that affected children, non fetuses. After the passage of the 2014 constabulary, this reasoning no longer applied, although it became relevant again with the fetal set on law'due south expiration in July 2016. In dissimilarity, state legislatures could cull to preclude attempted efforts at prosecution with amendments that make explicit that existing laws are non meant to apply to prenatal bear that may touch fetuses.
Although briefs from medical or public wellness organizations supporting the defendants' position were submitted to the court in 29 percentage of the cases (due north = vii), simply 1 bulk ruling direct referenced a medical or public health arrangement amicus cursory. In other instances, where medical expertise was referenced, information technology did not necessarily support the defendants' position. In totality, medical expertise seemed to play relatively little role in determining the outcome of most judicial decisions. This decision should not be a surprise, given that appellate decisions are based on estimation of constabulary, not facts. Facts are largely determined at the trial level. The implication for medical experts is that advocacy efforts may exist most useful when focused on state legislatures that are contemplating policies to reduce harms associated with prenatal substance abuse. Defense force attorneys who represent women charged for prenatal carry may do good from resources that clarify the relevant medical concerns. These may include the medical model of substance utilize disorders,4 racial disparities in substance apply screening and reporting in pregnancy,47 and the difficulty of attributing a item birth outcome to a single crusade.48
Criminalization of pregnant women for substance abuse is fraught with problems related to conceptual and practical implementation, even if in theory one believes that substance use in pregnancy is both a moral dilemma and a medical trouble. No adverse neonatal outcomes were reported in 41 percent of the pregnancies in this report. The apparent lack of a link betwixt the proscribed conduct and a distinct damage in a big number of the cases is one example of this significant limit to the rationale for criminalization. More concerning, limited evidence suggests that punitive polices may deter women from prenatal care.49,–,51 These policies also disproportionately touch on minority and poor women.15,52 For example, in one study, black women who tested positive for substances at nativity were reported to authorities at virtually 10 times the charge per unit of white women, despite similar rates of substance utilize.47 Advocates of the punitive approach assert that drug courts can be used to compel treatment for pregnant women with substance apply disorders. Although this may be the case, the medical care mandated by many drug treatment courts falls well beneath the standard of care required for some pregnant women.53,54
Of note, the cases loosely reverberate epidemiological trends in patterns of drugs of choice. Many of the early cases were related to maternal cocaine utilise, whereas more than recent cases tended to involve maternal methamphetamine use. This development over time may reflect contemporaneous moral panic linked to the potential deleterious effects of detail substances on fetal outcomes.ane
There are several limitations to this study. We examined simply published cases, nearly all of which were appellate level decisions. At that place may be many more than unpublished trial decisions, the dimensions of which we have no style of assessing. We do not know the function that medical expertise and testimony played in influencing the judicial outcome at the trial court level. We also were unable to determine the race or economic status of the defendants and do not know if poor or minority women are overrepresented among the defendants. Thus, information technology is not clear whether racial or economical bias is a factor in these cases. We did not examine judicial decisions regarding women who have faced ceremonious child corruption proceedings related to prenatal substance use. These cases typically involve significant civil matters, such as termination of parental rights or civil commitment to inpatient treatment facilities.55,56 There are instances where women have faced ceremonious complaints for behavior that is consistent with current standards of care for medical treatment of addictions. For case, a woman in New Jersey faced civil kid abuse and neglect proceedings for complying with her doctor's recommendation to stay on methadone treatment while pregnant,57 the gold standard handling for opioid dependency during pregnancy.53 The proceedings against her were ultimately thrown out by an appellate court.
Medical and public wellness experts who are desirous of seeing a greater focus on treatment of substance-abusing pregnant women must stay particularly alert to legislative efforts to expand the legal definition of a child to include fetuses or to define prenatal substance use explicitly equally a grade of kid abuse. Both stand to undermine the medical treatment of pregnant women with substance use disorders and potentially increment harm to mothers and children. Future professional advancement efforts may exist most beneficial when directed at state legislatures that are dealing with proposed statutes that address these questions. In jurisdictions where criminal charges are permitted, dispositions for convicted women should be treatment oriented. Psychiatrists should be involved with drug treatment courts to ensure that any courtroom-compelled treatment meets the circuitous medical and psychosocial needs of pregnant women with substance use disorders.
Footnotes
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Disclosures of financial or other potential conflicts of interest: None.
- © 2017 American Academy of Psychiatry and the Law
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Source: http://jaapl.org/content/45/2/193
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