ENDANGERMENT LAW

Charges Rejected for Moms Who Bear Babies Exposed to Illegal Drugs

By Susan Kinzie
Washington Post Staff Writer
Friday, August 4, 2006

Maryland's reckless endangerment law cannot be used to prosecute women who give birth to babies exposed to illegal drugs, the state's high court ruled yesterday, overturning the convictions of two Eastern Shore mothers.

Prosecutors said such charges were needed to protect children, but some advocates for pregnant women welcomed the decision by the Maryland Court of Appeals as an affirmation that such cases could make pregnant women vulnerable to prosecution for an array of potentially dangerous behaviors -- such as smoking cigarettes and driving without a seatbelt -- and that drug-using mothers need treatment, not punishment.

"Imprisonment is not only the most costly thing the state could do," said Lynn Paltrow of the New York-based National Advocates for Pregnant Women. "It's the most family-destructive thing the state could do."

Kelly Lynn Cruz, seven months pregnant and belligerent, arrived at an Eastern Shore hospital in the middle of the night in January 2005. The three-pound boy she gave birth to tested positive for cocaine. Last August, she was convicted of reckless endangerment.

Regina Kilmon, whose case was similar, was also convicted in 2005 of reckless endangerment. She was sentenced to four years in prison.

The cases were clear-cut for prosecutors. "We're talking about unlawful activity, use of a narcotic substance," Scott Patterson, the longtime state's attorney in Talbot County, said last summer.

But Talbot was the only jurisdiction in Maryland to bring such charges against women for using illegal drugs while pregnant. Elsewhere in the country, such cases have often turned into emotional debates over the rights of the unborn.

The American Civil Liberties Union of Maryland stepped in to defend Cruz, who was the fifth woman to face similar charges in Talbot.

In the 1980s and early '90s, public horror over crack use coincided with early reports of babies damaged by drugs. Arrests followed, and legislators debated how to control the problem. But most cases were struck down, and medical research tempered the earlier fears.

A National Institutes of Health study has found that maternal cocaine use can cause slightly lower birth weights and intellectual and behavior problems later in childhood. Alcohol and tobacco can be just as damaging. An array of public health, drug treatment and medical organizations filed briefs supporting the women, arguing that such prosecutions are more likely to harm than to help mothers and babies.

The court ruled that allowing such prosecutions could open the door to so many potentially dangerous behaviors that "criminal liability would depend almost entirely on how aggressive, inventive, and persuasive any particular prosecutor might be."

Some experts say they believe there have been more such cases in recent years, driven perhaps by the increase in methamphetamine use in some parts of the country and by recent laws that allow prosecutors to treat some crimes against pregnant women as cases with two victims.

This year, a similar case was dismissed in Virginia, and in Hawaii, the state Supreme Court overturned a manslaughter conviction of a woman who smoked methamphetamine while pregnant.

Of the Maryland Court of Appeals ruling, Patterson issued a statement saying his office "fully accepts its decision as a definitive statement of the law of Maryland" and would continue to work with public health and social services employees "toward the common goal of assisting women in their fight to defeat drug addiction and in their efforts to deliver children who will be born without illicit drugs in their systems."


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