Tuesday, November 6, 2012

Criminalizing addiction

The Supreme Court has several times held that drug addiction on its own is not a crime. As a society, we are now more willing to recognize addiction as a medical issue. Currently the medical community recognizes addiction as a legitimate medical concern. However, there still seem to be instances where a person can be charged with a crime for being a drug addict. Several states now have criminal statutes making it possible to charge a woman with criminal neglect if her infant tests positive for controlled substances. (Ala.Code 1975 § 26-15-3.2)

This statute, as discussed in class, was designed with the production of methamphetamines in mind. The crime is chemical endangerment, and she/he is guilty if they:
Knowingly, recklessly, or intentionally causes or permits a child to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia.
This statue has been used against women whose newborns test positive for controlled substances. They are charged regardless of whether or not the child has any other medical effects. The logic behind the law is that the mother was aware of their pregnancy and knowingly exposed their fetus to the controlled substance. The statute makes no mention of its applicability to fetuses, even though this was not its legislative intent.

Julie Ehrlich’s paper “Breaking the Law by Giving Birth, The War on Reproductive Rights, and The War on Women,” details that, as of 2001, women have been prosecuted under child abuse, reckless endangerment, and homicide statutes, in thirty-four states. She argues that these prosecutions violate both the equal protection clause and the due process clause of the 14th amendment. These laws specifically reflect an instance in which the law is applied to disproportionately affect women.

The Supreme Court has ruled that drug addiction, in and of itself, is not a crime. Rather, it is an illness, for which one cannot be prosecuted. Robinson v. California, 370 U.S. 660 (1962). The court found that drug addiction was a “status,” and one could not face criminal conviction for the status. Laws, like Alabama’s when applied to pregnant women are criminalizing them for their status as drug addicts. A woman who is facing a drug addiction may face severe criminal charges for carrying her pregnancy to term.
Thus, a woman who is dealing with drug addiction is not free to decide whether and how to carry her pregnancy to term without the possibility of serious criminal charges. These are extremely difficult decisions for any woman and can become even more complicated for a woman dealing with drug addiction. These women are now also potentially facing criminal charges even if they attempt to stop using drugs. Serious addiction is not something that can be “cured” from one day to the next, at the drop of a positive pregnancy test. For many individuals rehabilitation and recovery is a long process, which at times medically should include drugs to help with the withdrawal process.
Women who take serious steps towards recovery should be supported, not prosecuted. But punishment is exactly what laws like Alabama’s do. If these laws are meant to protect children from dangerous situations, then prosecution against their mothers is not necessary. Mothers who take the steps towards recovery should not be prosecuted. They should be supported and given extra help if their children have any special needs. Even for mothers who carry children to term and who are still struggling with addiction. The mere status of their addiction should not be something for which they can be penalized.

1 comment:

Courtney Hatchett said...

Unfortunately, since 2012 we have only seen a trend of Southern states mimicking the fetal endangerment statues like the one mentioned here. One of the most interesting cases has been that of Melissa McCann in Arkansas, who was sentenced to 20 years in prison for introducing a controlled substance into the body of another. However, the body of another was her newborn child and the "introduction" was done through the umbilical cord in the few moments between giving birth and cutting the umbilical cord. It was an interesting way for the State to use a law in a way it was never intended, as the statute was passed with the intention of punishing date-rape drugs. However, this past October the Arkansas Supreme Court reversed the conviction. See more at: http://www.theatlantic.com/notes/2015/10/a-pregnant-drug-users-conviction-overturned/409867/.