Alabama prosecutor: Have a crack baby, go to jail

Alabama prosecutor: Have a crack baby, go to jail

Nick Langewis

Published: Saturday March 15, 2008

http://rawstory.com/news/2008/Alabama_Have_crack_baby_go_to_0315.html

(AP) – Covington County, Alabama prosecuting attorney Gregory L. Gambril interprets a 2006 child "chemical endangerment" law to include the unborn, prompting concern over patient privacy and judicial precedent.

Section 26-15-3.2 (Act 2006-204, §2) of the Code of Alabama makes it a felony to expose a child to a controlled substance or drug paraphernalia. The punishment becomes more severe if the child suffers injury or death as a result.

"The unborn children are not making the choice," explained Gambril to The Birmingham News in February. "It’s the mothers who are making the choice to do it to them."

One such mother, Shekelia Ward, was jailed under $250,000 bond after she and her newborn baby, born on January 8 of this year, both tested positive for cocaine.

Daniel Bryan, Ward’s public defender, calls the statute "badly flawed," albeit with good intent, and vague enough to be overused in the courts. Bryan also takes issue with the cases’ assertion of a fetus’ status as a person, contrary to federal precedent.

Given that the act was passed as an answer to parents manufacturing methamphetamines in their homes, Mr. Gambril admitted an obvious "close call under the law," hoping for clarification by statute. Mothers avoid jail time by agreeing to go into treatment, Gambril added, insisting that the intent was not to put mothers behind bars.

"In Covington County, I don’t think they’re interested in helping mothers," counters Tiffany Hitson of Andalusia, Alabama, profiled in today’s New York Times. Hitson spent a year in jail after being prosecuted by Gregory Gambril. In 2006, her newborn daughter tested positive for cocaine and THC.

"I made the biggest mistake of my life & did some drugs with her father right before I went into labor, unaware I was about to have her," Hitson wrote to the county court after her arrest. "Please, please let me spend this most important time with my baby."

"When drugs are introduced in the womb, the child-to be is endangered," Gambril tells the Times. "No one is to say whether that environment is inside or outside the womb."

The entire New York Times story can be read HERE. Text of the cited Alabama law follows below.

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Section 26-15-3.2 Chemical endangerment of exposing a child to an environment in which controlled substances are produced or distributed. THIS SECTION WAS ASSIGNED BY THE CODE COMMISSIONER. IT HAS NOT BEEN CODIFIED BY THE LEGISLATURE.

(a) A responsible person commits the crime of chemical endangerment of exposing a child to an environment in which he or she does any of the following:

(1) Knowingly, recklessly, or intentionally causes or permits a child to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia as defined in Section 13A-12-260. A violation under this subdivision is a Class C felony.

(2) Violates subdivision (1) and a child suffers serious physical injury by exposure to, ingestion of, inhalation of, or contact with a controlled substance, chemical substance, or drug paraphernalia. A violation under this subdivision is a Class B felony.

(3) Violates subdivision (1) and the exposure, ingestion, inhalation, or contact results in the death of the child. A violation under this subdivision is a Class A felony.

(b) The court shall impose punishment pursuant to this section rather than imposing punishment authorized under any other provision of law, unless another provision of law provides for a greater penalty or a longer term of imprisonment.

(c) It is an affirmative defense to a violation of this section that the controlled substance was provided by lawful prescription for the child, and that it was administered to the child in accordance with the prescription instructions provided with the controlled substance. (Act 2006-204, §2.)

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