Homicide Conviction for Stillbirth Overturned

Jacob Sullum | May 15, 2008

In 2001 Regina McKnight, a 24-year-old South Carolina woman, was convicted of "homicide by child abuse" because she was a cocaine user whose baby was stillborn. She received the minimum sentence for that crime, 20 years, with eight years suspended. The conviction, the first of its kind, was outrageous for several reasons:

1) If McKnight had deliberately killed her baby by obtaining an illegal abortion, the maximum sentence she could have received would have been two years.

2) There was no solid evidence that McKnight's baby died as a result of her cocaine use, and even the general connection between cocaine and stillbirth had been called into question.

3) Although tobacco use is also associated with stillbirth, women who smoke during pregnancy are not prosecuted for homicide when their babies die (unless they smoke crack).

This week the South Carolina Supreme Court unanimously overturned McKnight's conviction, finding that her attorney had not made an adequate effort to present evidence on the latter two points and had failed to challenge confusing jury instructions regarding intent. The court said McKnight's lawyer should have introduced into evidence the autopsy report (which mentioned two factors in addition to cocaine as contributing to the baby's death), called an expert witness to question the state's conclusion about the cause of death, and questioned "the adverse and apparently outdated scientific studies propounded by the State's witnesses to find additional support for the State's experts' conclusions that cocaine caused the death of the fetus." The court said the defense should have presented testimony regarding "recent studies showing that cocaine is no more harmful to a fetus than nicotine use, poor nutrition, lack of prenatal care, or other conditions commonly associated with the urban poor."

Even if we accept the legal theory behind this prosecution, the government would have to show that cocaine use during pregnancy is independently associated with stillbirth, once confounding variables such as prenatal nutrition, health care, and use of other drugs are taken into account (the sort of problem that pervades the literature on the effects of prenatal cocaine exposure). Even if a general risk has been established, it is very difficult, if not impossible, to show beyond a reasonable doubt that a particular factor caused a particular stillbirth. Finally, the magnitude of the risk matters. If the risk to the fetus posed by the mother's cocaine use is comparable to that posed by various habits for which pregnant women whose babies die are not prosecuted, it's clear the government is irrationally discriminating against cocaine users.

Forget about cocaine for a moment. Do we want to accept, as a general principle, the idea that women who unintentionally cause harm to their fetuses by doing (or failing to do) certain things during pregnancy should not only be held criminally liable but prosecuted for homicide if the fetus does not survive? Such a rule is plainly inconsistent with the law regarding abortion, and it probably would deter many pregnant women from seeking medical care, thereby further endangering them and their babies. More to the point, a stillbirth is not a murder, and a woman who experiences this tragedy, even if her own behavior may have inadvertently contributed to it, deserves sympathy, not prosecution and prison. The fact that anyone needs to state this explicitly speaks volumes about the extent to which anti-drug hysteria has warped our system of justice.

The South Carolina Supreme Court ruling is here. The Drug Policy Alliance's press release on the case is here.

Comments

TallDave|5.15.08 @ 3:50PM|#

The Drug War begins at conception!

Taktix®|5.15.08 @ 3:53PM|#

Ok, everyone, pack it up. Go home.

This thread has been won already...

|5.15.08 @ 3:55PM|#

But forget about cocaine for a moment. Do we want to accept, as a general principle, the idea that women who unintentionally cause harm to their fetuses by doing (or failing to do) certain things during pregnancy should not only be held criminally liable but prosecuted for homicide if the fetus does not survive

Uhmm..isn't that the logical conclusion / progression of the Pro Life movement?

If fetuses have the same rights as kids who are born, then why shouldn't a mother get prosecuted for those actions? If a mother unintentional caused a harm to her already born children would she not be prosecuted?

|5.15.08 @ 3:56PM|#

"3) Although tobacco use is also associated with stillbirth, women who smoke during pregnancy are not prosecuted for homicide when their babies die (unless they smoke crack)."

Also, alcoholic women are not prosecuted if the baby is born to a life of decreased opportunities due to being retarded as a result of fetal alcohol syndrome.

|5.15.08 @ 3:59PM|#

No such thing as fetal cannabis syndrome.

h-dawg|5.15.08 @ 4:00PM|#

The problem is, there is no consequence to prosecutors in being unanimously overruled on an insane prosecution.

Neu Mejican|5.15.08 @ 4:01PM|#

Disclosure:

I am currently involved in research on Fetal Alcohol Spectrum Disorders (FAS and related disorders).

No one I know in the field would support legislation making it illegal to drink while pregnant.

This prosecution is, imho, directly linked to the pro-life movement. If they can successfully argue cases like this, then then can use rulings on them to leverage elimination in abortion rights.

Not even very transparent.
The connection to the drug war is less clear to me...given that there is already a prohibition of cocaine whether or not you are pregnant.

Neu Mejican|5.15.08 @ 4:06PM|#

ZZman,

True enough, that doesn't mean it is a good idea to hit the bong while pregnant.

Prenatal marijuana exposure and 6-year cognitive development

L. Goldschmidta, G.A. Richardsonb, J. Willforda and N.L. Daya

aUniversity of Pittsburgh School of Medicine, Pittsburgh, PA

bWestern Psychiatric Institute & Clinic, Pittsburgh, PA

Available online 21 March 2007.

Marijuana is the most commonly used illicit drug, yet little is known about the long-term consequences of use during pregnancy. This report is from the 6-year follow-up of a longitudinal study of prenatal marijuana exposure. Women used marijuana at light to moderate levels early in pregnancy and generally decreased their use after the first trimester. At the 6-year phase, the women were, on average, 30 years old, had 12 years of education, and 54% were African American. Fifty percent of the children were female and the mean Stanford-Binet Intelligence Scale (SBIS) composite score was 91.6. Stepwise regressions were conducted separately by trimester and included control for other factors associated with cognitive development, such as sociodemographic and environmental characteristics. Heavy marijuana use (≥ 1 joint/day) during the first trimester predicted the verbal reasoning score of the SBIS. Heavy use during the second trimester predicted the composite, short-term memory, and quantitative scores, and heavy use during the third trimester predicted the quantitative score. Other predictors of the SBIS included maternal IQ and home environment. These results confirm our earlier report of effects on 3-year IQ and demonstrate that there are long-term teratogenic effects of prenatal marijuana exposure on cognitive development.

Neurotoxicology and Teratology
Volume 29, Issue 3, May-June 2007, Page 395

Differential effects on cognitive functioning in 13- to 16-year-olds prenatally exposed to cigarettes and marihuana

Peter A. FriedCorresponding Author Contact Information, E-mail The Corresponding Author, Barbara Watkinson and Robert Gray

Department of Psychology, Carleton University, Ottawa, Ontario, Canada K1S 5B6

Received 18 November 2002;
revised 10 February 2003;
accepted 11 February 2003. ;
Available online 10 April 2003.

Abstract

Cognitive performance was examined in 145 thirteen- to sixteen-year-old adolescents for whom prenatal exposure to marihuana and cigarettes had been ascertained. The subjects were from a low-risk, predominantly middle-class sample participating in an ongoing, longitudinal study. The assessment battery included tests of general intelligence, achievement, memory, and aspects of executive functioning (EF). Consistent with results obtained at earlier ages, the strongest relationship between prenatal maternal cigarette smoking and cognitive variables was seen with overall intelligence and aspects of auditory functioning whereas prenatal exposure to marihuana was negatively associated with tasks that required visual memory, analysis, and integration. The interpretation of the results is discussed in terms of the differential observations related to in utero exposure to cigarettes and marihuana and the nature of the cognitive variables associated with the two drugs.


Neurotoxicology and Teratology
Volume 25, Issue 4, July-August 2003, Pages 427-436

|5.15.08 @ 4:10PM|#

Neu Mejican,

Just fucking link, man. LINK.

Neu Mejican|5.15.08 @ 4:11PM|#

Jamie,

Those links would have led you to a firewall asking for subscription.

Just scroll down man, scroll down.

|5.15.08 @ 4:14PM|#

Just scroll down man, scroll down.

:-)

robc|5.15.08 @ 4:15PM|#

NM,

Those links would have led you to a firewall asking for subscription.

Doing your part to lower global temperature?

Muchos gracias.

Tacos mmm...|5.15.08 @ 4:22PM|#

ChicagoTom is right. This reeks more of the pro-life movement than the drug war.

adrian|5.15.08 @ 4:34PM|#

so if a woman drinks heavily to cause an abortion (or she just likes to party) can she be convicted of child abuse? if abortion is made illegal will that change?

thoreau|5.15.08 @ 4:45PM|#

Yeah, I may not often agree with TallDave, but he definitely won this thread on the first post.

|5.15.08 @ 4:55PM|#

A woman who drinks enough to cause an abortion can be charged with practicing medicine without a license.

Likewise, ya can't rape a prostitute....

John|5.15.08 @ 5:02PM|#

I dunno, it seems that a case could be made at least for child endangerment (no causation problems) or negligent homicide since smoking crack while pregnant is plainly a gross breach of the duty every parent has to care for her child. The mother should have known the risks that crack use during pregnancy poses to a child. All the state really has to show is that the baby would not have died but for the crack use. I understand that there a evidence problems in this case particularly, as well as confounding variables, but it doesn't seem to be an impossible case to make.

|5.15.08 @ 5:07PM|#

the government would have to show that cocaine use during pregnancy is independently associated with stillbirth, once confounding variables such as prenatal nutrition, health care, and use of other drugs are taken into account (the sort of problem that pervades the literature on the effects of prenatal cocaine exposure).

Not necessarily. Why couldn't the government argue that the defendant engaged in a range of negligent and intentional activities that all contribute to stillbirth, and that the total impact of her activities caused the stillbirth.

If I'm starving my child, and beating my child, and the kid happens to die of a beating that wouldn't have killed a healthy child, I'm still going to be convicted of murder, after all.

Neu Mejican|5.15.08 @ 6:51PM|#

smoking crack while pregnant is plainly a gross breach of the duty every parent has to care for her child.

Pretty low on the harm scale, actually, and I don't know of any research suggesting that cocaine exposure leads to stillbirth at a significantly higher incident than the baseline once you account for prenatal care, nutrition, etc....

So, yeah, it would be hard to make the case without going beyond the science.

Smoking cigarettes is more harmful, for instance, and there is evidence to suggest leads to more stillbirths, but I don't think you could make the case that the mother's smoking led to the stillbirth in any particular case.

Neu Mejican|5.15.08 @ 6:53PM|#

RC Dean makes a good point...strategy-wise.

Neu Mejican|5.15.08 @ 6:58PM|#

A comparison of prental cocaine and tobacco on prenatal growth, low birth weight, and prematurity

Journal of Perinatology (2005) 25, 631-637. doi:10.1038/sj.jp.7211378; published online 18 August 2005

CONCLUSION: Disease burden for each outcome increases with each added drug exposure; however, etiologic fraction attributable to tobacco is greater than for cocaine.

No mention of mortality increases.

Bohica|5.15.08 @ 7:39PM|#

Just fucking link, man. LINK.

And if you can't link Neu Mejican, using fucking block quotes, man.

Block quotes for long passages are much, much easier on the eyes than a wall of italicized text.

|5.15.08 @ 7:47PM|#

While I didn't wade through Neu Mejican's tomelike (tomish? tomistic?) post, taking extra care of your body while pregnant, (get medical care, do exercise, watch your diet, avoid drugs), should be done by every pregnant women. Attempting to mandate that kind of stuff is far outside the responsibilities of government.

|5.15.08 @ 7:51PM|#

And if you can't link Neu Mejican, using fucking block quotes, man.

And if the boneheaded intertube geeks would have used BQ vice blockquote for the HTML tag a lot more folks would use them. We hunt and peck typists need all the help we can get.

|5.17.08 @ 2:02AM|#

Actually there was a tort case brought on behalf of a fetus against the mother when the (pregnant) mother was in a car accident. (Judges threw it out.)

I don't think the so-called "pro-life" people have thought through very clearly the ramifications of their push to define human life as "being from conception." Put that together with worries about dangers from the environment to the fetus in utero, the US legal system, and the tendency to go after the deep pockets, and well, it should be quite amusing.

Hope the female prolifers enjoy having their wombs checked on a monthly basis. And having wine and other naughty substances forbidden them. Can't be exposed to any chemicals, either, y'know. So if you're pregnant, or possibly pregnant, you'll be held totally responsible for anything you breathe, eat, drink, or are exposed to, even involuntarily.

What fun!