E-Alerts & Press Releases

Media Articles on Argument in State v. Cruz

Last week I sent an E-Alert about the Court of Appeal's upcoming hearing in the case of State v. Cruz, in which the Public Justice Center submitted a brief arguing that the consensus of medical opinion is that prosecution of addicted mothers is counterproductive for the health of both mother and child.  Following are articles in the Daily Record and the Democrat Star about the case, each quoting Suzanne Sangree, PJC's Director of Appellate Advocacy.

New mothers fight endangerment convictions

April 10, 2006
Daily Record Assistant Legal Editor

A drug addict ingests cocaine during her pregnancy. Her baby tests positive for cocaine at birth.

Can the mother then be prosecuted for the crime of reckless endangerment, with a sentence of four or five years in jail?

That simple scenario spawned a host of complex questions Friday, as the Court of Appeals considered two cases in which prosecutors charged women with reckless endangerment of their then-unborn children.

Both prosecutions were in Talbot County. Nowhere else in the state is the law being used in such a manner, according to counsel for the women involved.

Public Defender Nancy S. Forster, representing appellant Regina Mary Kilmon, said the legislature need look no farther than the words of the reckless endangerment statute, Criminal Law Article §3-204.

A person “may not recklessly engage in conduct that creates a substantial risk of death or serious physical injury to another person,” Forster cited, with the emphasis on the last word. A fetus, she argued, was not legally a person.

But Assistant Attorney General Mary Anne Ince, who represented the state in both cases, said the charges alleged reckless endangerment of the newborn child.
“This was not a prosecution for any injuries or risk to a fetus,” she said in the second case, against appellant Kelly Lynn Cruz.

Beth S. Brinkmann, who represented Cruz with the American Civil Liberties Union, zeroed in on what she called “the breathtaking scope of the state’s theory” in Cruz’s case. There was no evidence of serious physical injury or the amount of cocaine used, and nothing to indicate that the act even took place in Maryland.

Indeed, the judges seemed to see jurisdiction as one simple way out of a difficult problem. As Judge Irma S. Raker pointed out, the drugs could have been ingested in another state.

Deciding the case on jurisdictional grounds would also sidestep the host of constitutional issues raised by the appellants, including due process, privacy and equal protection issues, as well as Equal Rights Amendment concerns.

But the judges peppered the attorneys with questions anyway, wondering where to draw the line with such an application of the statute.

Would a pregnant female in the military, they asked, be guilty of reckless endangerment if she were shot? What about pregnant women who smoke, drink alcohol, go skydiving or forget to wear a seatbelt?

“[This] could cover almost any foolish thing a pregnant woman does for the whole nine months,” Judge Alan M. Wilner commented.

The judges also wondered whether prosecutions of this sort would encourage abortions.
“The questions the court asked were all the questions we hoped they would ask,” ACLU attorney David Rocah said after oral arguments Friday. “I don’t think the state had answers to any of those questions. I think the court understood a serious underlying issue as to whether the statute can have any applicability in these circumstances.”

A separate statute on the murder or manslaughter of viable fetuses, as Forster pointed out, contains an exemption for pregnant women’s conduct toward their own fetus. While her client could be sent to prison for ingesting a small amount of cocaine, she argued, a woman who took enough of the drug to kill the fetus would not be prosecuted for murder or manslaughter.

“That is an absurd result,” Forster argued Friday.

Kilmon gave birth to a baby boy at Easton’s Memorial Hospital in June 2004. She was charged with reckless endangerment, pled guilty and received a four-year jail sentence.
Cruz gave birth to a son at the same hospital in January 2005. She was convicted and sentenced to five years imprisonment, with two and a half years suspended.

Scott Patterson of the Talbot County State’s Attorney’s Office was present at oral arguments but could not be reached for comment Friday afternoon.

“These prosecutions are counterproductive,” said Suzanne Sangree of the Public Justice Center, who filed an amicus brief in the case. “They scare people away from prenatal care, drug treatment, any interface with the public health system. That will have a negative impact on birth outcomes.”

Copyright 2006 © The Daily Record. All Rights Reserved.
Star Democrat

Friday, April 7, 2006
Court to hear appeal in Cruz case

Easton woman serving time after giving birth to baby who tested positive for cocaine By TRAVIS DUNN Staff Writer April 7, 2006 Star-Democrat

ANNAPOLIS ‹ The American Civil Liberties Union will ask the Maryland Court of Appeals today to prohibit the prosecution of women who give birth to children testing positive for illegal drugs.

The ACLU appeal stems from the Aug. 5, 2005, conviction of an Easton woman, Kelly Lynn Cruz, 30, on a charge of reckless endangerment. Cruz, currently serving a two-year sentence at the women¹s prison in Jessup, allegedly gave birth to a premature baby who tested positive for cocaine.

A number of groups, including the Public Justice Center and National Advocates for Pregnant Women, have filed amicus briefs in support of the ACLU appeal.

The Maryland Court of Appeals this morning also is to hear the case of another Easton woman, Regina Kilmon, 39, who pleaded guilty on a reckless endangerment charge. Kilmon gave birth in June 2004 to a child who allegedly tested positive for cocaine. Nancy S. Forster, public defender for the State of Maryland, will present Kilmon¹s case.
Talbot County is the only county in Maryland to prosecute women who abuse drugs during pregnancy. At least three other women have been prosecuted on similar charges in the last six years.

The first of these prosecutions, a reckless endangerment charge against Kathleen Viola Stanford-Brummel, 38, was dropped. Both Stanford-Brummel and her son tested positive for cocaine in 2000.

Heather Anne Gowe, 21, of Trappe, is on probation while attending a drug treatment program in Salisbury. Gowe, convicted of second-degree child abuse in April 2004, allegedly gave birth to a child testing positive for cocaine.

Prosecutors also alleged that Gowe smoked crack cocaine in the hospital room with her newborn child nearby.

Stephanie Engel Robbins, 25, of Wittman, currently is being held without bond at the Talbot County Detention Center. Her child allegedly tested positive for cocaine and heroin. Robbin was charged with second-degree child abuse, reckless endangerment, possessing cocaine and possessing marijuana.

"Prosecutors are not the pregnancy police," said David Rocah, staff attorney for the ACLU in Baltimore. Rocah called the practice of prosecuting drug-addicted, pregnant women "dangerous and unconstitutional."

Rocah argues that the Maryland General Assembly has rejected bills which would criminalize the kind of behavior being prosecuted in Talbot County, and that the problem of drug-addicted, pregnant women is already dealt with through civil law.

"It's not as if the state ignores the problem," he said. "Women are encouraged to get treatment. That's how you help drug-addicted, pregnant women."

Rocah said there's a reason that more than 30 states have rejected measures that would criminalize this behavior, "because there's no limit to them."

"There's an almost infinite variety of things that pose potential risks," he said.

"Incarceration doesn't wean a woman from a drug habit," said Tiloma Jayasinghe, staff attorney for the National Advocates for Pregnant Women.

"These punitive measures only harm women and their unborn babies."

"The consensus of medical knowledge is that it's harmful and counterproductive to prosecute women for drug addiction," said Suzanne Sangree, director of Appellate Advocacy at Public Justice Center in Baltimore.

Prosecution, Sangree argues, deters drug-addicted women from seeking prenatal care and drug treatment and encourages abortion.

Sangree also thinks the reckless endangerment law is being misapplied in Talbot County.

"The legislature never intended that the reckless endangerment statue would apply to pregnant women's addictions," she said.

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