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Akron Univ. School of Law

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Thursday, August 18, 2005

Maryland Jails Mom Who Tested Positive for Cocaine

In a move that harkens back to South Carolina's prosecutorial initiative against cocaine-positive pregnant women, Maryland has sentenced to 2-1/2 years a woman who, along with her newborn, tested positive for cocaine, according to this morning's Baltimore Sun.  The ACLU, which represents the woman on appeal, says:

"Nobody thinks it's a great idea to take cocaine while pregnant," said ACLU attorney David Rocah. "But the unanimous view of medical and public health professionals and drug treatment professionals is that if you want to stop people from doing that, the way to do that is to provide them with meaningful access to drug treatment and not criminally prosecute them."

This is a hard lesson for prosecutors to accept, but the courts have been pretty clear about the legal obstacles to such prosecutions:

Similar attempts to criminalize drug use by pregnant women became common in the United States 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 is South Carolina, where about 70 women have been prosecuted for using drugs during pregnancy, according to a spokesman for the attorney general there. In 2001, the U.S. Supreme Court limited South Carolina's ability to mount such prosecutions by deeming drug tests administered without the mother's consent inadmissible in court.

It will be interesting to see what the Court of Appeals does with this one.  According to the article, "One of the ACLU's main arguments against Cruz's conviction is that Maryland law defines reckless endangerment as conduct by one person that causes substantial risk of harm to another person, but that the term "person" does not legally include a fetus. In 1990, Maryland legislators rejected a bill that would have made prenatal drug use by women a felony." 

FYI: In 2003, Texas amended its penal code so that "individual" means "a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth" (Penal Code § 1.07(a)(26)).  The legislature was careful, however, to make sure that the chapter on offenses against the person (including our reckless endangerment statute) "does not apply to conduct charged as having been committed against an individual who is an unborn child if the conduct is . . . committed by the mother of the unborn child" (id. § 22.12).  [tm]

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