There is an article posted today on the TDCAA website, discussing whether the new definition of "individual", which includes a fetus, should be applied to the Controlled Substances Act. See article . If it is, then drug abusing mothers could be prosecuted for delivery of a controlled substance to a child.

I would make a couple of observations and then open the topic for debate:

1) The authors of the new definition made it very clear during legislative debate and in their bill that prosecutions should not be directed against the mother or a doctor.

2) In the past, the Legislature and the courts have not imported a Penal Code definition into the Health and Safety Code (which contains the Controlled Substances Act), absent an express legislative statement doing so.

For example, when the Penal Code was rewritten in 1993, one of the problems that was addressed had to do with whether you could prosecute a drug offense as an attempt or a conspiracy. At the time, there was no provision in the Penal Code creating an attempt or conspiracy for drug cases.

To solve the problem, the Legislature added new provisions to the Health & Safety Code, expressly importing the attempt and conspiracy provisions of the Penal Code. For example, see Section 481.108 (Preparatory Offenses), which states:

"Title 4, Penal Code (dealing with attempts and conspiracies), applies to an offense under this chapter."

In the absence of such an express provision in the Health & Safety Code as to the meaning of "individual", how can we overcome the legislative intent? Perhaps more importantly, is it good public policy to criminalize such health issues?

John will you please clarify what you mean by "health issues." I believe if a woman knows she is pregnant and is abusing drugs then the issue should be criminal. I would have no problem with a charge of endangerment or higher under an appropriately written statute, depending on what the medicos say about the particular controlled substance or illegal drug and its affect on the baby whether born or not yet born.

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"... under an appropriately written statute ..."

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I think the question is, is this statute written in that way?

I don't mean anything in particular (politically) by using the phrase "health issues." I simply was referring to things done by the mother that could interfere with the good health of a fetus. There is a spectrum.

Smoking, for example, will undoubtedly interfere with the health of a fetus. So, why don't we prosecute every mother that smokes while pregnant? Well, it's because there is not a clear legislative intent to make it criminal.

You say that you believe that the crack smoking pregnant woman is committing a criminal act. Well, maybe she is and maybe she isn't.

Certainly, it is a dangerous thing for the fetus. But, until the definition of individual was amended, there was no recognition in the Penal Code that the fetus was a protected victim. So, the question now is whether the expansion of that definition made it possible to prosecute pregnant crack smoking women.

For those of us who watched this issue be debated in the Legislature for the last decade, we know that passage of the new definition was tied to an exclusion of pregnant women as defendants. This was done to satisfy pro-choice members of the Legislature who feared the amendment was being passed to make abortion unlawful again. And everyone that testified nodded their heads that they understood this exclusion.

I have my own views about abortion, but they aren't relevant to whether I can prosecute a pregant woman. As a prosecutor, I can prosecute a pregnant woman when the Legislature makes it clear that there is a penal provision covering her misconduct.

Having said all that, it may be that the Legislature, through inartful drafting, left open the possibility of prosecuting crack smoking pregnant women. So, now I am faced with a policy decision: charge ahead and protect crack babies (angering the medical and prochoice establishment) or decline to prosecute until the Legislature speaks more clearly (leaving crack babies at risk).

That is a tough choice. The answer is not simple. And there are serious consequences either way. But it is my preference to show deference to the Legislative process.

And there are ways to protect crack babies. The civil process of CPS is one possibility.

We criticize judges regularly who write laws from the bench. Well, prosecutors don't write the laws either.

What do you think?

I do not see the issue as being that complicated, perhaps because I am that dumb. First and foremost this is a matter of statutory language. H&S Code 481.122 provides that a person commits an offense if knowingly deliver the designated drugs to a "person" who is a child. Child is defined as a "person" under the age of 18. H&S Code 481.002(33)defines "person" as an individual, corporation, government, . . . or any other legal entity. Even if John is correct that we cannot / should not import the definition of "individual" from the penal code into the H&S Code no one can deny that the last legislature established that a fetus is a legal entity. If we can prosecute for its death it certainly has been recognized as a legal being. Note that the H&S Code does not define, trusts, corporations or the other entities that constitute "persons" so it is reasonable to believe that you should look outside the H&S Code for those definitions. Therefore, a mother when she smokes her crack, etc. is, in fact, delivering a controlled substance to a legal entity under the age of 18. As for CPS, I have been in close contact with them and I am told that their rules do not allow them to open cases unborn children. Therefore, until the child is born addicted, etc. they cannot become involved. The case I presented to the grand jury involved a woman who has had 5 prior children. All have been addicted to crack. All are now in foster care with various medical / mental problems. She has been prosecuted for State Jail possessions and numerous misdemeanors. She has refused repeated requests to have her tubes tied. She is only 27. I know that if she is on the street she will continue to prostitute herself, and she will again become pregnant. I feel this use of a 2nd degree felony is the only realistic way to protect those future children, and our tax dollars. I fully agree that the legislature did not contemplate this when they passed their new definition, that does not mean that its use is wrong. Perhaps if we as prosecutors can show that this is an inadvertant blessing that allows us to make a meaningful intervention before the damage is done to the most helpless of our citizens then they will see that what they have done is good and leave it alone. Please continue your thoughts on this issue. This case will be very difficult and I expect a long legal battle ahead, so to have as many of the issues addressed now is a great help.

Appellate courts are reluctant to import statutory definitions on their own. Generally, they look to the common meaning of a word if there is no written definition. And, trial courts may not write a definition for a jury absent a statutory definition.

I seriously doubt that an appellate court is going to suddenly discover that the common meaning of individual includes an unborn child. Given the history of the Penal Code and the recent amendment, an appellate court would likely point out that it has never included an unborn child, until the Legislature expressly added it in the Penal Code.

And don't get me wrong, your reasons for pursuing a criminal prosecution are, indeed worthy, if the facts are as you describe them. But there will be political consequences for pursuing a case, and those consequences will not be limited to a single DA office. If the case becomes a media issue, it could focus attention on the choices that prosecutors in general make. Just something to consider.

More media attention, albeit of the "fringe" variety:

Austin Chronicle

Not for nothing do we go to law school. You see how that works? I had the perfect way to jump to either side by hedging with the phrase "appropriately written statute."

Better get a look at Ferguson v. City of Charleston, 2001 WL 273220 (U.S.) before going after druggie moms that way...

Here is the latest on prosecution of mom:

Woman pleads guilty to giving drugs to unborn child


Mother could get between two and 20 years in prison at today's sentencing

By Betsy Blaney


ASSOCIATED PRESS


Wednesday, September 8, 2004


AMARILLO -- An Amarillo woman pleaded guilty Tuesday to delivering crack to her unborn son, avoiding trial in a case that could determine the boundaries of a state law intended to protect the unborn.

As part of her plea agreement, Tracy Ward, 30, retained her right to appeal, said her attorney, Joe Dawson. The deal averted trial over the question of whether a mother's actions can be prosecuted under a law that classifies a fetus as an individual.

Ward, who admitted smoking crack cocaine in the days leading up to her son's birth in early November, will be sentenced today.

She could get between two and 20 years in prison on the second-degree felony charge of delivery of a controlled substance to a child.

Dawson said he has requested probation and intensive drug treatment.

"She hopes the judge grants her the help she needs," he said.

The plea deal came the day the trial was scheduled to begin.

Ward was prosecuted under a law that exempts health care providers who perform legal medical procedures, such as abortions. It also exempts death or injury as a result of legal drug use or an action by the mother.

However, Rebecca King, district attorney for several counties including Potter County, said that the law required prosecution and that the exemption for the mother did not apply in this case. She said she would welcome an appeal.

"If it wasn't this one, it'd be another one," she said. "I'm going to be very interested in a reading that shows me a legal out here that doesn't follow my interpretation."

A spokesman for the bill's sponsor in the Texas House said that legislators intentionally exempted mothers and that King has misinterpreted the law. The change was intended to address harm brought by a third party, said Scott Gilmore, chief of staff for state Rep. Ray Allen, R-Grand Prairie.

"Ultimately, it's up to the lawmakers and appellate courts how this law is going to be applied," Dawson said. "There's just a host of issues that will be looked at (on appeal)."

Ward was charged after her son, Roger, tested positive for cocaine. She admitted to paramedics that she had smoked crack cocaine within an hour of calling for an ambulance to report problems with her pregnancy in October.

Larry Cunningham, a Texas Tech University law professor, said he thinks that a number of people -- prosecutors, defense attorneys, legislators and physicians -- will be watching the appellate court's decision.

"It's always better to get an appellate decision on your side as opposed to a not-guilty verdict that no one knows about," he said. "The risk they run is that the appeals court is going to rule in favor of the prosecution."

Ward's case is not the first case in which King has used her interpretation.

In June, Alma Baker pleaded guilty to delivery of marijuana after admitting she smoked marijuana while pregnant to ease her morning sickness and bolster her appetite, said her attorney, Tom Lesly. Baker gave birth to twins in October 2003 and received deferred adjudication of five years probation.

King said there are "a number" of other cases pending.

"My job is not to address the morality, per se," she said. "Of course I have my opinion. But I am trying to uphold the law as I see it."

Lesly said Tuesday that King's interpretation is "a fundamental attack" on the U.S. Supreme Court decision that gave a woman the right to have an abortion.

If Ms. Ward stipulated that her son was a human being who was alive (who happened also to be an unborn child) at the time of the offense, then how can she successfully challenge the sufficiency of the evidence to show that she delivered the substance to a "person". It seems to me the appellate court may be precluded from reaching the merits of the debate (i.e. whether the "person who is a child" spoken of in 481.122 can also be an "unborn child" as suggested by 1.07(a)(26), (38)). It has long been the rule that a "judicial confession, standing alone, is sufficient to support the plea of guilty".

On the other hand, if all she said was that what ultimately became her son was an unborn child at a stage of gestation, then maybe the validity of the idea that such a fetus qualifies as a "human being" (which I think Justice Blackmun's viability theory pretty well denied in Roe) will have to be decided. At least there should be no Ninth Amendment issue in this case.

Maybe I'm misreading it. I thought she was going to appeal the constitutionality of the statute (and her conviction) not the sufficiency of the evidence.

Seems to me she is only appealing on the issue of whether an unborn fetus is a child within the meaning of the word as used in the Health & Safety Code. Sort of a legal impossibility for her to be prosecuted if she is right.

The case can be resolved without dealing with any constitutional issues. It would be a pure statutory interpretation.

Besides, I wouldn't think it would be smart to ask an appellate court to hold that a woman has a constitutional right to use illegal drugs during gestation. Isn't even abortion a crime if performed by someone other than a licensed doctor?

My point is that she has to show the statute is unconstitutional as applied to her. If she stipulated that she made the delivery to a human being, then I do not see how she can later challenge that it was not a human being (which would have to be the basis for a constitutional claim). I am assuming the State recognized its need to prove the "person" was an "individual", i.e. "a human being who was alive". Of course, Ward can make the argument the definition of "person" in the CSA is not the same as "person" in the penal code (or perhaps even better that "child" as used in 481.122(d) does not include an unborn child), but isn't it still more difficult for her to win if she stipulated her unborn child was a living human being, regardless of how the court ultimately defines the scope of "person" or "child" as used in 481.122? My basic thought was that by pleading guilty you may waive the ability to say certain things upon appeal. If the court says that after Roe state legislatures cannot define unborn children (or at least nonviable unborn children) as persons (or living human beings), then isn't the amendment to 1.07(26) what is really in jeopardy in this appeal?

[This message was edited by Martin Peterson on 09-08-04 at .]

If she stipulates that a rock is an individual, could she still be convicted if she damages the rock?

I'm pretty sure that depends on whether a frog is used to damage the rock. If I entered a three-sided "building" and later stipulated that it was an enclosed structure do I win upon appeal by proving my stipulation was false, or does the court note Dinnery and go to the next point of error? Besides, pet rocks are individuals aren't they?

Mine was. His name was George. Painted on the side. We lost him at the quarry. Very sad day.

I truly hate to disagree with John and I certainly see his point. However, it should be noted that S.B. 319 amended not only the definition of individual in the Penal Code but also in Chapter 71 of the Civil Practice & Remedies Code. Therefore, in Texas a fetus can now sue and be sued. That is the very definition of a legal entity. See Heffron v. Pollard 73 Tex. 96 (1889). If the fetus is a legal entity then it is illegal to deliver a controlled substance to it. H&S Code481.002 (33) and H&S Code 481.122. We are not prosecuting these mothers for "harming" their unborn children we are prosecuting for delivering a controlled substance to them. Is there much difference between giving a two day old cocaine via mother's milk and giving a child the day before birth cocaine via the umbillical cord. We have now filed 18 of these cases and obtained pleas of guilty in 5. All I can say that if we are reading the law incorrectly the law should be changed. There is a compelling governmental interest in insuring that women do not subject unborn children to controlled substances, both for physical and fiscal reasons. Until a court of appeals holds that a fetus is not, in fact, a legal entity or the legislature changes the law we intend to keep prosecuting in the appropriate cases.

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All I can say that if we are reading the law incorrectly the law should be changed.

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True. And judging by all the kerfuffle about these cases, I wouldn't be surprised if that happens. Which is how the system is supposed to work, right?

(I guess I should consider that as job security, eh? )

Can delivery of drug to a corporation qualify as a felony because a corporation can sue and be sued in a court?

Nevertheless, given the dangers and costs of caring for children who are injured by drugs --as well as alcohol- (delivery to a minor?) --while still in the womb, perhaps such statutes should be specifically created and directed towards such behavior.