Drug Policy

Should Pregnant Addicts Go to Jail?

Criminalizing dependency is counterproductive and unconstitutional.


Darienne Dykes
Amanda Winkler

Darienne Dykes smiles as she thinks about her 5-month-old son, Phoenix. "He's everything to me," says the 21-year-old Nashville resident. "Being a mother is just the most amazing experience." Wiping tears from her eyes, she continues, "And now looking back, I definitely regret continuing using drugs during my pregnancy."

Dykes is not alone. Approximately 900 babies were born with Neonatal Abstinence Syndrome (NAS) in Tennessee last year, a 10-fold increase from a decade ago. NAS is caused when mothers continue their opiate use through pregnancy. Babies can usually be weaned off the drug within a few weeks after birth, and there are no known long-term effects.

Tennessee officials have declared NAS an "epidemic," however, and took action last July by implementating Public Chapter 820. This law allows the authorities to charge a woman with assault for using a narcotic while pregnant if her child is born harmed by the drug. An assault conviction is punishable by a fine and anywhere from one to 15 years in prison. So far, at least nine women have been charged.

The law has been controversial, with opponents saying it's counter-productive to put a drug-addicted mother in jail. Shelby County District Attorney Amy Weirich, a strong proponent of the law, says the point isn't to lock up these women. Instead, she considers the law a state-sponsored "motivation" to seek treatment.

"What we hope to do is to get these women help for their addiction," says Weirich, explaining that the women have the choice to go through drug court and complete rehabilitation instead of being processed through the regular criminal justice system. Once treatment is successfully completed, she says, the charges would be expunged from their record. But if the program is not completed, jail time is the consequence.

Thomas Castelli of Tennessee's American Civil Liberties Union points out that threatening mothers with the criminal justice system doesn't help when there's not enough drug treatment facilities to begin with. There are only 19 facilities in the entire state that offer rehabilitative care to pregnant women, and these are mostly centered in populated areas, leaving rural women with the burden of driving long distances to attend treatment. For many of these lower-income single mothers, this is logistically difficult.

This shortage in treatment facilities has resulted in waitlists ranging from a few weeks to a few months. Due to the new law, the waitlist can mean the difference between freedom and imprisonment for a pregnant woman.

Castelli argues that the law not only will prove to be counterproductive but is unconstitutional. "It violates the Eighth Amendment. The Supreme Court back [in 1962] determined that it would be cruel and unusual to punish people for having a status or having an illness," he says. The case, Robinson v. California, concluded that the state's law which criminalized being a drug addict was unconstitutional. Castelli argues that this law does the same thing.

The law has a sunset provision and is set to expire in two years, at which time lawmakers will review its efficacy and consider extending it. In the meantime, Dykes, who has been clean for nine months, plans to continue her successful drug rehabilitation for years to come.

"Just the joy he brings me from hearing the little giggle to seeing the little smile, there's nothing else that can beat that in life," says Dykes. "There's no drug that can give you that feeling."

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  1. Castelli argues that the law not only will prove to be counterproductive but is unconstitutional. “It violates the Eighth Amendment. The Supreme Court back [in 1962] determined that it would be cruel and unusual to punish people for having a status or having an illness,” he says. The case, Robinson v. California, concluded that the state’s law which criminalized being a drug addict was unconstitutional. Castelli argues that this law does the same thing.

    They’re being punished for an act (taking the drug), not a status (addiction).

    Also, that ruling does not affect laws designed to protect public safety or public health — mentally ill and drug addicted people cannot possess firearms, for instance. From public safety it’s a short hop to child welfare.

    1. Awww, isn’t that precious? Castelli thinks that the Constitution actually matters.

      I’d like to introduce you to a little thing called “civil commitment”:

      Where the State has “disavowed any punitive intent”; limited confinement to a small segment of particularly dangerous individuals; provided strict procedural safeguards; directed that confined persons be segregated from the general prison population and afforded the same status as others who have been civilly committed; recommended treatment if such is possible; and permitted immediate release upon a showing.

      -Kansas v. Hendricks (1997)

      So long as the State determines that you “dangerous” to others (the fetus) and mentally ill (addiction is an illness?), then as long as the Gods of Procedure (Judges) are satisfied that sufficient procedural safeguards are in place, then you may be imprisoned for such treatment as is available to the State.

      1. The word “civil” seems to be magical in helping the state circumvent barriers to stomping all over people’s rights.

        1. Don’t forget “administrative.” You can throw out all kinds of pesky Constitutional protections if something is “administrative.”

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  2. A problem with this line of thinking is that there aren’t good studies on drugs and birth defects. Even fetal alcohol syndrome was a poorly conducted study. The control group was women who drank no alcohol and the test group were fall down drunks. The problem is that alcoholics not only consume alcohol, they also eat poorly and have vitamin and mineral difencies, liver disease, high stress lifestyles, poor prenatal care, etc. Putting people in jail for pseudo-science is wrong.

    1. oh brother

    2. My wife has been doing a lot of reading on this, as she’s expecting in June. Even doctors are all over the place as to how much alcohol consumption is safe during pregnancy. Within the same practice, one doctor says none at all, and one says a glass of wine a day is fine. Most seem to split the difference, but not because of clinical data so much as through the tendency towards moderation of views.

      Depending on where you look, there are respectable studies that don’t show a link between maternal alcohol consumption and FAS at all. As you point out, these don’t dispute that alcohol is toxic and direct exposure would certainly harm a fetus, but they conclude that the symptoms of FAS are actually a result of nutritional deficiencies and medical problems that alcoholics typically have.

      It sounds like a distinction without a difference until you realize that much of the medical advice regarding alcohol consumption during pregnancy is based on studies that basically assume that a mother who drinks moderately has the same physiological profile as one who drinks rubbing alcohol in a Target bathroom.

  3. You know what this article cries out for? The insights of a court appointed drug addiction counselor!

  4. I don’t think anyone should go to a government run jail after being tried and convicted in a government court …

    especially for government laws telling people what substances they can’t put in their bodies.

    That is all.

  5. Having dispatched this scourge when will Tennessee take on their problem with inbred idiots?

    1. That’s not a very nice thing to say about Carbon Jesus (Al Gore).

      1. Carbon Jesus is one Jesus I’d love to see crucified.

  6. Don’t worry ladies, you’re extremely well protected by a very large mostly unspoken of legal gender-gap.

    American Enterprise Institute, The Factual Feminist

    Partial transcript:
    If you are a criminal defendant, it is far better to be a woman than a man. For the same crime, and with a similar criminal history, men in the U.S. are imprisoned much more frequently and for much longer sentences. This is one gender gap that we hear very little about…

  7. It’s only your body when it comes to aborting children. Passing the effects of your disease onto your children….that’s strictly verboten.

  8. The only reasonable way to judge a law like this is by the incentives it creates.

    Studies have shown that when you enact a law like this, it doesn’t prevent “crack babies” from being born at all (but the number of them is tiny anyway). What really happens is that it deters mothers who use (for example) minor amounts of marijuana — from coming in for prenatal care, or even to give birth. The result is a huge number of dead kids, who would be alive if the law weren’t there.

    1. what studies?

      1. You don’t really need studies. Common sense tells you that criminalizing behavior will tend to drive people who practice those behaviors away from discovery. If I tell you that smoking tobacco is illegal and punishable by time in prison, but that if you ask me I’d be happy to show you to an addiction treatment center, will you,

        a.) Thank me heartily and say, “Why yes, I smoke like a chimney! Let’s get me well!”,


        b.) Think, “What’s stopping you from throwing me in the clink after I admit to committing a crime? Fuck that shit, pal,” and run away.

        I’m guessing the second choice is the most likely, as it’s the most rational.

  9. I wish a law being unconstitutional would matter. It doesn’t. Supreme Court justices will perform all sorts of legalistic acrobatics to find a way to rule a law passed by Congress constitutional ( e.g. Justice Robert’s tortuous ruling to find The Affordable Care Act acceptable.) They don’t want to stand in the way of the ‘peoples will’.

    The ‘Commerce Clause’ and ‘General Welfare Clause’ can be used almost without limits to find a law constitutional. So, in general, a law’s popularity is the true test of constitutionality. We could save a few bucks in salaries and simply pass an amendment removing the third branch of our Federal Government.

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  11. Should Pregnant Addicts Go to Jail?

    Uh, no?

  12. This is an interesting question, because ostensibly you now have an example of a behavior that is no longer “victimless”. You’re actually causing real harm to another human as a result of your choices. On the other hand, apparently there isn’t lasting harm, and I don’t know that throwing a mother of a newborn into the hooskow is what you’d call a “solution”.

    I think some perspective is worthwhile here. Apparently, the threat of prison time isn’t enough to get people to stop using heroin, because they do it anyway. I’m going to go out on a limb and say that if you’re unwilling to stop shooting up while pregnant you have some underlying issues in your life above and beyond drug addiction, and odds are not great that you’re going to be Mother of the Year material, smack or no. So, in that regard, the law seems like a pointless waste of time and money. You’d be better off spending the money on a fleet of compact cars and addiction counselors if you’ve got to spend it at all.

    1. I have an adopted cousin, and his birth mother was a prostitute as well as a drug addict. He does not complain about, but her addiction has affected him in numerous ways, both mentally and physically.
      I agree with the notion, “You own yourself, do what you want” provided it does not harm someone else, and her actions did him harm. If you don’t think that is worthy of jail time, then for pity’s sake, the poor bastard should be able to sue her.

      1. If there’s anything I learned in my business law class, it’s that A can sue B. So go for it, although I’m not sure what kind of a settlement a drug addicted hooker is going to be able to pay.

  13. The real problem here is not the law per se, but the “justice” system.

    Let’s assume for the sake of argument that doing drugs while pregnant does harm the child, and the child’s rights are violated. If that’s the case, then NAP is violated and the law (theoretically) is just.

    But throwing that person in prison isn’t the answer (and never is the answer, and is inconsistent with NAP). True justice isn’t done by putting the mother in jail at taxpayers’ expense. Justice would be repaying “an eye for an eye” (as it were). Now, it’s more counterproductive to actually hurt the mother of the child if she were to regret her decisions and actually be a useful mother to the child if you were to avoid punishing her. If that were the case, then perhaps any sentence should be suspended (as harming the one you now love seems punishment enough).

    If the mother didn’t care that she hurt the little one, and seems to now make an awful mother, then by all means pay her back as she did to the child (it’s not like she’s going to keep the child in those circumstances anyway).


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