In 1994 this author argued for the adoption of a legislative scheme that addressed the problems of children exposed prenatally to drugs and alcohol. Under that scheme fetal abuse became a crime. However, the sentence for the crime was probation with drug treatment and no-pregnancy conditions, rather than incarceration. Although no state has enacted the proposed legislative scheme in total, a number of states have enacted bits and pieces of the scheme. No state has, however, made fetal abuse a crime.
In addition to the legislation that has been enacted since 1994, a number of other changes have occurred that impact the question of what should be the legislative solution to prenatal drug exposure? These changes include the following: an increase in the available treatment options for pregnant and parenting substance-abusers; the deciding of civil and criminal cases on the question of the legal consequences of prenatal drug and alcohol exposure; and the upswing of methamphetamine use. In light of these changes, this article re-examines the 1994 proposed legislative scheme to assess whether the proposed legislation continues to be a viable solution.
This article concludes that the central ideas that form the basis for the proposed legislative scheme are still necessary and viable. Contrary to the assertions of some commentators, prenatal substance abuse continues to be a serious problem. To address that problem, the best ideas need to be used from two opposing camps - the treatment-only camp and the criminal prosecution camp - to create an effective state initiative. Such will allow the states to protect as many children as possible, while respecting their mothers’ autonomy as much as possible.
The legislation that I proposed in 1994 attempted to create this hybrid solution. In light of political and practical realities, however, the author’s 1994 proposed legislative scheme needs to be modified. The new proposed legislation attempts to address the following five components: (1) avoidance of incarceration for pregnant substance abusers; (2) comprehensive drug and recovery programs; (3) retention of custody by the mother of her child(ren); (4) provision of effective birth control and family planning services; and (5) a mechanism for intervening, coercively if necessary, if a woman is causing serious harm to her unborn child or has caused harm to one child and is likely to cause harm to another child. It does this by eliminating the crime of fetal abuse, but instead allowing for the prosecution of a woman for criminal child abuse if she seriously harms a child in utero. The proposal also mandates the use of alternative sentencing for any pregnant or mothering woman who is prosecuted for any crime related to her drug use. This alternative sentencing must contain elements of comprehensive drug treatment and family planning.
- in utero,
- substance abuse,
- drug treatment,
- drug exposure,
- prenatal drug exposure,
- prenatal alcohol exposure,
- alternative sentencing
Available at: http://works.bepress.com/janet_steverson/1/