Drug War

Enhanced Criminal Penalties for Pregnant Women Must End, Groups Urge DOJ

Reproductive-rights and drug-policy groups are calling for an end to the harsher sentencing of pregnant women charged with drug crimes.

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Women's advocacy and drug-policy reform organizations are calling on the Department of Justice (DOJ) to "publicly renounce" enhanced criminal penalties for pregnant women. It's an issue that's been gaining more attention since the July 2014 conviction of Lacey Weld, a Tennessee woman who was found guilty of conspiracy to manufacture methamphetamine. Because Weld was pregnant at the time she made (and used) meth, she received an extra six years of prison time for child endangerment. 

At the time of Weld's conviction, U.S. Attorney William C. Killian said enhanced sentencing policies were necessary in light of the "tragic rise in the number of babies born addicted to drugs. Through this prosecution, the U.S. Attorney's Office sends a message that, should a child, born or unborn, be exposed to a substantial risk of harm through the manufacture of methamphetamine, we will pursue any available enhancements at sentencing." 

Babies can't actually be born "addicted" to a drug, though they may develop a physical dependence that leads to withdrawal symptoms. This is sometimes seen when women use opioids or drink excessively during pregnancy. There's little evidence that meth, however, results in any particular withdrawal symptoms. The American College of Obstetrics and Gynecology's position is that there "is no syndrome or disorder that can specifically be identified for babies who were exposed in utero to methamphetamine." And as Jacob Sullum noted here recently

The Food and Drug Administration puts methamphetamine (a.k.a. Desoxyn) and other amphetamines (e.g., Adderall) in Pregnancy Category C, meaning "animal reproduction studies [using doses much higher than people generally take] have shown an adverse effect on the fetus," but "there are no adequate and well-controlled studies in humans." Doctors will prescribe Category C drugs, which include antidepressants such as Prozac and Zoloft, for pregnant women if they believe the benefits outweigh the risks.

Many object to charging a pregnant meth user with "child endangerment" on the grounds that an embryo or fetus is not yet a "child". But we also lack sufficient evidence of endangerment, or at least that this danger is greater than that posed by common legal substances. Research indicates that heavy drinking and poor nutrition are much more dangerous to developing fetuses than exposure to methamphetamine, which would seem to have an impact similar to that of prescription drugs like Adderall. 

"The effort to impose an enhanced penalty is based on the argument that Ms. Weld exposed her 'unborn' child to 'a substantial risk of harm'," notes Lynn M. Paltrow, executive director of National Advocates for Pregnant Women (NAPW), in an October 7 letter to the DOJ.

This claim not only provides the basis for separate and unequal treatment of pregnant women, it is also one that cannot legally, logically, or medically be limited to use of or exposure to criminalized substances. … Numerous actions, conditions, circumstances, and substances have been found to create equal or greater risks of harm to fertilized eggs, embryos, and fetuses than any of the criminalized drugs, including methamphetamine. 

The DOJ's support for Weld's enhanced sentence "suggests that actions that are not ordinarily criminal may become criminal if performed by a pregnant woman," Paltrow continued, pointing out that drug possession, not use, is a crime under Tennessee and federal law.

That possession rather than use is criminalized is based in part on the recognition that some use is the result of addiction, a health condition over which people have limited control. According to the DOJ press release and the sentencing decision in this case, drug use (including addiction) has effectively been criminalized for one class of persons—women who become pregnant and seek to continue their pregnancies to term.

The letter was sent on behalf of nearly 50 nonprofit orgnizations, including the Drug Policy Alliance and the American Civil Liberties Union's Reproductive Freedom Project. The groups allege that enhanced penalties for pregnant women defy the constitutional principles of equal protection and due process as well as the ban on ex post facto laws. 

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  1. Babies can’t actually be born “addicted” to a drug, though they may develop a physical dependence that leads to withdrawal symptoms.

    Ok. Which one of these is true?

    1. Let me put it this way. Over the summer, I broke my hand and needed heavy doses of painkillers to sleep through the night.

      When I stopped taking these painkillers, I had some of the symptoms associated with withdrawal for a few days… however, I felt no compulsive need to continue taking the drugs, and my use certainly did not interfere with my daily activities.

      My broken dominant hand’s uselessness OTOH… 🙁

      1. I think you’re drawing a distinction between psychological and physical addiction (you had the latter but not the former), which is what I gathered Elizabeth’s point was too. I had the same thing happen to me after months of being on opiates after my heel was reconstructed. I stopped the opiates, had slight physical symptoms for a day or two, but actually no problem mentally stopping.

        Not that I wouldn’t mind taking a few opiates here and there…

        1. I agree. The psychological condition is actually the harder thing to kick.

          My understanding is, even the toughest drugs have a physical addiction that only lasts a few days.

          1. But, I think the physical addiction can actually do things to brain chemistry that makes a substance more likely to become addictive and make the addiction harder to break.

    2. That was my question. I thought true addiction was physical dependence with withdrawal symptoms.

      I know the term is commonly used now to refer to any (mildly) compulsive behavior, but isn’t that still the core definition of drug addiction?

      1. I’m physically dependent on insulin. Am I an insulin addict?

        1. No, but your compulsive production of nauseating political fan-fic would count as an addiction by any sane definition of the term.

          1. An addiction…to DEPRAVITY! And to prolapsed anuses. Very much the prolapsed anuses.

        2. Yes. So am I. And so is everyone else. My god, we live in a world of insulin fiends……

          1. I need to go call my dealer. The sugars are whispering to me.

      2. My understanding is that addiction involves behaviors demonstrating a compulsive need to consume something or engage in a behavior to the point where it is harming oneself. There is also a social component as well. A person who wrecks their health pursuing a cause widely held to be noble isn’t said to be addicted, even though the same degree of compulsion would be called an addiction if directed towards different ends.

        1. It would make a lot more sense if addiction = compulsive behavior + physical dependence with withdrawal.

          The current way “addiction” is used creates confusions like studies that show that people just age out of their addictions. (Which in the case of heroin takes like 15 years).

          Of course, the current way it is used also benefits public health advocates who want to turn all sorts of classes of people into helpless government dependents. (i.e. My shopping addiction prevents me from paying my rent! government must help me!)

          1. Nah. You can definitely become addicted to things that don’t cause physical withdrawal symptoms. Gambling addiction, for example, is quite real. As are addictions to a number of drugs (e.g. cocaine) which haven’t been shown to cause physical dependence.
            Physical dependence helps reenforce addictions, but it isn’t necessary by any means.

            1. I suspect the chemical component is minor in most cases. People always told me that the physical withdrawal from nicotine only lasts three days, and from there forward it’s all the psychological component.

              I didn’t find the first three days nearly as tough as the subsequent year.

              1. I quit for 2 years and then realized I had spent 2 years wanting a cigarette and started again. I find you actually feel good in a way when getting it all out of your system in the first few days.

            2. People call it a gambling “addiction”, but IMO, it would make a lots more sense to call it OCD or just a “compulsive behavior”.

              It’s also worth noting that substances that cause addictions with physical dependence seem to be MORE addictive. Tobacco and heroin seem to be equally addictive even though tobacco is not nearly as pleasurable – but both cause withdrawal symptoms.

              And also, people who have things like shopping addictions tend to have other mental health problems, so OCD might be closer to the truth.

              1. Some people are more prone to addiction than others. Some people can smoke for years and drop it without too much trouble, while others never stop wanting a smoke.

                So I think you are right in a way, some people have an underlying condition or tendency toward obsessive need for certain stimuli. I think that is a lot of what addiction is. And those people are probably going to find something to be addicted/obsessed with, whether it is drugs, gambling, porn, etc.

                Some people are unlikely to become addicted to anything, even if they do a lot of drugs or whatever. I think that the assumption that drug addiction is a simple physiological reaction to exposure to certain substances is one of the worst and most dangerous assumptions behind the whole War on Drugs.

                1. I don’t think that’s right. I seems clear to me that *even* people who don’t have tendencies towards compulsive behavior tend to develop addictions when they use certain substances, such as tobacco and heroin.

                  Some people may have an easier time overcoming addictions than others. But it’s obvious that more people who smoke tend to become addicted than people who gamble. If that wasn’t the case, we wouldn’t have a huge cottage industry of smoking cessation programs, and nothing even remotely comparable for gambling.

                  If there wasn’t something about tobacco itself that made it especially addictive, the rate of tobacco addiction would be no greater than the rate of shopping addiction or sex addiction.

      3. No, addiction is the psychological compulsion to keep doing something that causes pleasure. Physical dependence is just a physiological reaction. Tarran’s and Episiarch’s examples illustrate this well. Anyone who takes opioids for long enough will develop dependence and have withdrawal symptoms if they stop taking it. Dealing with withdrawals is the easy part. Addiction is a lot harder to get past. Heroin addicts will often go through withdrawals either to reduce their tolerance, or to try to quit. But getting past that doesn’t mean they have beat the addiction as anyone who has known a junkie can tell you.

        In my personal experience, I find tobacco to be much the same. Getting past the physical withdrawals is not so hard. But after months of thinking “I want a cigarette” it’s really easy to go back to it.

        Now, some people are a lot more prone to addiction than others, so you may not have experienced anything like that. If so, lucky you.

      4. I thought true addiction was physical dependence with withdrawal symptoms.

        Well, you need the first to get the second. I’ve never heard of anyone psychologically addicted to something before they’re physically addicted to it.

        The true addiction (in my opinion) is the psychological addiction. Lots of people become physically addicted to things for a short time, but the people who weeks, months or years after the physical addiction has passed are the real addicts.

        1. *people who have trouble weeks…

    3. Unfortunately the definition of “addiction” has been so debased that it now basically means anything harmful a person has trouble not doing.

      That’s why we can talk about people being “addicted” to gambling, shopping, sex, and World of Warcraft.

      We’re either going to have to invent a new word for “a physical dependence that leads to withdrawal symptoms” to stop using “addiction” to refer to stupid bullshit.

      1. I’m addicted to using the word addiction.

      2. That’s why we can talk about people being “addicted” to gambling, shopping, sex, and World of Warcraft.

        I thought we used to have a word for those things. And I thought that word was “compulsion”.

        1. I think people started using “addiction” for these things because it allows people to pretend that they have a physical disease.
          And it allows mental health professionals to collect a lot of money for treating “addictions” from government coffers.

    4. I think that addiction is a psychological phenomenon (as opposed to physical withdrawal symptoms), and babies aren’t mentally developed enough to associate a behavior they may have never encountered to their physical cravings, much less act on it.

    5. So by the newest newspeak definition, it’s impossible for a newborn to be addicted. Thats convienent.

  2. When I saw this article, I says to myself, I says, “I wonder if ENB wrote this?” And she did!

    It’s one thing to say, as ENB says, that in this particular case, the defendant’s crime did not, in fact, endanger her unborn chi- I mean fetus. But the letter ENB cites goes further than this:

    “For these reasons, we urge the DOJ to publicly renounce the position that the commission of a crime while pregnant should expose the pregnant woman to enhanced criminal penalties.”

    In other words, this would rule out an increased sentence even if the defendant, through her crime, *demonstrably* harmed the chi – uh, fetus.

    I would say, if the jury finds that the defendant caused *actual harm* to the ch – oops, fetus, then the court should impose an enhanced sentence.

    1. If only you were even 1% as funny as you think you are. And about 99% less obsessed.

      1. Sorry I brought up the subject – no, wait, I didn’t.

        1. No, you just rode your hobby horse. Like the fetus-obsessed weirdo you are.

          1. Um, I commented on a fetus-related article?

            It’s not as if I wrote a short story about tentacle time-travel rape.

            It’s not as if I lurk around waiting to accuse my less-favorite posters of “obsession.”

            I don’t recall doing that to you.

            But you enjoy doing it to me.

            1. I’ve ignored you for months. I’ll go back to doing that until you bray loudly enough to be annoying again.

              Thanks for utterly ruining hipchat, by the way. I couldn’t stand being a part of yet another forum for you to swamp with your Catholic Rain Man act.

              1. *smooches*

                1. So, does this mean you are behind the new “dunphy”?

            2. It’s not as if I lurk around waiting to accuse my less-favorite posters of “obsession.”

              Ummm…you went through a phase a while back where you were accusing me of “stalking” you every time I commented on one of your posts.

              1. You seemed…very interested in cutting me down to size.

      2. Who isn’t obsessed with ENB?

        1. ENB isn’t his obsession. Or at least, she is only part of it. Unruly broodmares all all stripes not doing as they’re told drives him nuts.

          1. I suppose Lila Rose is also trying to suppress women. Because false consciousness.

            Go back to Jezebel!

            http://www.liveaction.org/lilarose/

            1. How dare those other ones think they own themselves like they were human or something.

              1. Why not get a blond wig and fake tits and join your nearest feminist collective, where you can bemoan how false consiousness afflicts the sisterhood?

                1. Let that mask slip, Eddie! Go go go!

                  1. To be fair, I have reservations about belonging to any group which would have me as a member.

                    1. Maybe they shouldn’t.

                2. What I do on my Friday nights in the privacy of the Secret Feminist Illuminati is none of your concern.

          2. HuffPo is looking for commenters if you want to take that ignorant progtardery somewhere else, champ.

    2. That’s right, Eddie! Let’s help the child by throwing her mom in jail!

      Do you shit on physical copies of the bible every morning Eddie? Because you sure spend a great deal of time publicly taking a symbolic shit on Christ’s teachings here, and I am curious as to how depraved your soul really is…

      1. *smooches*

      2. “Let’s help the child by throwing her mom in jail!”

        So mothers should get away with causing harm to others because CHILDRENZ?

        1. Well, let’s see how that looks if you phrase it as it applies in this specific situation:

          Mothers should get away with causing potential harm (of uncertain degree) to their developing children because punishing them for so doing would cause further harm to their children once they are born.

          Now, of course there are lots of questions that need to be answered to determine if that is a reasonable thing to claim, but the statement as I have it is not obviously wrong.

    3. I disagree, even in a hypothetical legal system where an unborn child has rights, there is no reason that a conspiracy to manufacture meth charge (or any other charge) should have a pregnancy sentencing enhancer.

      If there was a crime done to the child it should be a separate charge, and the elements should be proven separately. You shouldn’t get to just throw some bonus years on because of a condition (pregnancy) that is totally unrelated to the criminal act itself.

      1. I think you solved the problem.

  3. It seems to me that the only intellectually honest pro-choice position on this issue is “Yeah, a mother’s choice while pregnant may screw up the eventual human should she decide to keep the fetus, but it’s her choice.” Just ADMIT that the choice can have an impact on a human being, even if you don’t want to admit that the human matters while it’s in the womb, and maybe us pro-lifers will shut up for a minute. It’s hard to argue with “I don’t care”

    1. I not particularly pro or anti-abortion, but it’s a ridiculous position to assume that a fetus magically becomes a human the day it is born, but was nothing of consequence the day before. It’s just as ridiculous to assume that an unfertilized egg magically becomes a human the day after it’s fertilized.

      It’s clearly a case of incrementalism with a fetus gradually becoming a baby. And you probably need to take that into account when considering any penalties. A week old fetus doesn’t, in my opinion, warrant much consideration. However, a 39 week old fetus, is nearly a full human.

      1. This.

        But your average committed pro-lifer sees the individual soul as a complete, pre-formed entity, not something that evolves into an individual over the course of its development. Thus, there IS a line where something that is nothing of consequence becomes as individually precious as it’s ever going to be.

        This is why the debate with religious types is pointless.

        Of course, if it dies before being born, it goes to heaven, so I’ve never understood what the great tragedy is.

        1. I think Catholics are hung up on baptism and believe unbaptized children go to Purgatory.

          1. Limbo, not purgatory.

          2. Right you are – getting rusty on my Catholic dogma. Need to go back through my Aquinas again.

            Still, heaven eventually – only the reprobate Suffer Eternally.

      2. It’s just as ridiculous to assume that an unfertilized egg magically becomes a human the day after it’s fertilized.

        That’s literally science (well, that it happened at fertilization). If you mean person, say person. Because a fetus is a human.

        1. It’s good to define your terms and that is definitely a distinction that needs to be made. But “human”, used as a noun, has similar implications to “person” in many contexts and words like “humane” and “humanity”.

      3. Problem is, the law doesn’t work well with increments. Also, I could argue the difference between an unfertilized egg and an embryo is that one has the exact DNA of the body that its in, and(unless acted on and fundamentally changed by an outside force) has no chance of being anything more than what it is right now. The embryo OTOH has a full, unique, human DNA,and the ability to reproduce its own DNA and grow in a way consistent with the scientific definition of life.

      4. Yet, under the law, the state argues out of both sides of its metaphorical mouth. Is a fetus (of any age) a child? Then it can be endangered and all abortions are murder. Is it not a child? Then the enhanced penalties don’t apply, and the guy who fed abortion pancakes to his girlfriend (see http://www.lifenews.com/2014/07/14/ “Man Kills His Unborn Child By Tricking Girlfriend Into Taking Abortion Drug in Her Pancakes”) may be guilty of “poisoning” his girlfriend (battery), but is NOT guilty of murder.

    2. Since many of these cases involve women pregnant beyond the first trimester and far enough along that almost everyone agrees abortion should be prohibited, one wonders how the act of injecting yourself with substances that cause harm to the baby in utero is any different than feeding it from a milk bottle containing crack cocaine.

      1. The derisive laughter was for lap83.

    3. There is also the slippery slope argument here. If taking certain drugs that might harm the child/fetus/whatever can be criminalized, then why not failing to have the optimal diet or sleeping too little or driving on excessively bumpy roads or any number of other things that are not optimal for development?
      And we all know that it is politically unpopular things that will be criminalized and not necessarily the things that are most harmful to a developing human-thingy.

      1. This is the thing. A number of good points have been raised here about causing real harm to a thing that is at least *going to be* a real person some day.

        However, there is probably a much greater danger to liberty presented by treated pregnant women as incubators to be regulated by the state.

        1. Yeah, you need to make sure that the cure is not worse than the disease.

          I hesitate to bring up the big “A”. But I think making abortion legally akin to murder has similar dangers. Should every miscarriage be investigated as a possible murder?

          1. Or at least manslaughter through gross negligence.

            I’m personally of the opinion that the “slut who uses abortions instead of birth control” is largely a fiction of the pro-life crowd.

            I tend to think when a pregnant woman considers and takes such an action, it is very much a non-casual decision that other people should hesitate to feel that they have a right to be involved in.

            Much like euthanasia, but I’m way, way out of the majority on that one . . .

            1. I’m personally of the opinion that the “slut who uses abortions instead of birth control” is largely a fiction of the pro-life crowd.

              Never hang your hat on someone else’s virtue.

            2. Personally, I don’t much care one way or the other on abortion. I don’t have a dog in the fight. But the definition of “child” should at least be logically consistent. The same embryo should not magically become a “child” when mom ingests unapproved substances, or when someone causes an abortion against the will of the mother – but remain a bit of surplus tissue that can be cast off at the mother decides she would rather not be a mother after all. Nowhere else in law do we let an individual dictate whether something is MURDER or not based solely upon their whims.

  4. If a pregnant woman is harmed by another person, then generally that person is subject to higher penalties. So, logically you should hold the pregnant woman to higher standards also.

    So, which path do you take?

    1. I think that even without assuming that the fetus has rights that need to be enforced you could argue that assault on a pregnant woman that causes the pregnancy to abort is a worse crime.

      I think it all comes down to the rights of the woman. An assault against a pregnant woman also threatens something that she presumably values highly, whether or not that something deserves extra legal protection all on its own.

      1. I think that even without assuming that the fetus has rights that need to be enforced you could argue that assault on a pregnant woman that causes the pregnancy to abort is a worse crime.

        Actually, no. If we were to adopt logical consistency, then such an assault would be TWO crimes – assault on the mother and assault on the fetus. But then, the fetus has no legal status. It’s only a bit of superfluous tissue that has no importance (as confirmed by every abortion). There is no “assault” on the fetus and it has no more importance (in a logically consistent law) than a broken coffee cup.

        Consequently, the only crime under our current system SHOULD be the assault on the mother.

      2. Note: Criminal law doesn’t extend greater penalties to destruction of something that the vicim “values highly”. That’s a matter for civil courts and computation of damages. At one level, it could be argued that the woman was “unreasonably attached” to a bit of tissue that hundreds of thousands of women slough off every year as waste material, and that simply because this particular woman had an “unreasonable” attachment to this particular bit of tissue does not make the crime any greater than an ordinary abortion which we all know is “not a crime”.

        But let’s extend this a bit: Why can women have abortions, but men cannot order abortions of fetuses they have fathered? If the woman wants to abort – the law says okay. But what if the father wants to abort HIS fetus?

        The irony here is that we pretend women want to be equal. They don’t. They want to have all the advantages and none of the responsibilities.

    2. If a pregnant woman is harmed by another person, then generally that person is subject to higher penalties.

      The path that doesn’t do that. Cause it leads to bullshit like this.

  5. Pregnant women need alt-text too!

  6. Another confused, poorly-reasoned article from Reason’s token identity politics maven. Don’t you belong in a fourth tier state university’s Feminist Studies Department or some shit, ENB? Wouldn’t your lack of critical thinking skills suit you better there?

  7. how do they know a “child” was endangered? If she has an abortion, where is their case? And if we accept the argument that she “endangered a child” – then aren’t all abortions… murder?

  8. The research that I have seen suggests that methamphetamine is far worse at damaging dopamine receptors in the brain, so the negative effects to the fetus’ body other than the brain would be similar to Adderall, but to the brain it seems likely that their cognitive functioning could be more negatively effected.

    Punishing drug addicts with harsher sentences doesn’t accomplish anything other than further damaging the life of the child that would be born.

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