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For Some Local Prosecutors, the Post-Roe World is Already Here

As the potential demise of Roe v. Wade looms, past and current prosecutions of pregnant women illustrate what lies ahead.

Abortion protesters at a demonstration outside a Planned Parenthood office in Washington, D.C., last year. Protests were held around the country calling on the government to defund Planned Parenthood.
Photo illustration by Anagraph. Photo by Mario Tama / Getty Images

For Some Local Prosecutors, the Post-Roe World is Already Here

As the potential demise of Roe v. Wade looms, past and current prosecutions of pregnant women illustrate what lies ahead.


In December 2015, Anna Yocca was arrested for attempting to induce her own abortion with a coat hanger. She spent over a year in jail as Rutherford County, Tennessee, prosecutors tried repeatedly to bring felony charges against her. When an attempted murder charge didn’t stick, they indicted her in February 2016 on charges of aggravated fetal assault. To do so, they relied on a 2014 law intended to criminalize drug use during pregnancy. But with the contested law set to expire in July of that year, and no evidence that Yocca had used drugs, that failed too.

That didn’t deter prosecutors: Next, they brought three new felony charges against the 32-year-old. Facing charges of attempted criminal abortion, aggravated assault with a weapon, and attempted procurement of a miscarriage, Yocca pleaded guilty in January 2017 to the latter in exchange for her release.

Cases like Yocca’s often seem like a glimpse into a dystopian future, especially now, as anxiety mounts over the tenuous fate of Roe v. Wade. When Justice Anthony Kennedy announced his retirement in June and President Trump tapped Brett Kavanaugh, a staunch conservative, to replace him, journalists and advocates were quick to predict doom for reproductive rights. But in many localities across the country, women like Yocca already know what it’s like to live in a post-Roe world, a world dominated by state lawmakers and local prosecutors.

“When they are determined to control and prosecute pregnant women, [prosecutors] are extremely resourceful, if you will, creative, and can be relentless in their determination to find a way to lock up women for having had abortions,” Lynn Paltrow, executive director of National Advocates for Pregnant Women (NAPW), told The Appeal. (Paltrow and her NAPW colleagues advised Yocca’s defense attorney throughout the ordeal.) The Rutherford County district attorney’s office did not respond to requests for comment.

While the overturning of Roe would indeed be devastating to the reproductive freedom of pregnant and non-pregnant women alike, advocates say that more arrests are inevitable either way. “For many of the people we work with and for, Roe has become increasingly meaningless,” says Jill Adams, founder and chief strategist of the University of California, Berkeley School of Law’s Self-Induced Abortion (SIA) Legal Team. “We are in a moment of crisis, we’ve been in a moment of crisis, and how bad the crisis will become is probably a matter of degree.”

Both Adams’s and Paltrow’s organizations have documented dozens of arrests of pregnant women after Roe. Between 1973, the year of the Roe decision, and 2005, NAPW documented 413 cases across 44 states in which “a woman’s pregnancy was a necessary factor leading to attempted and actual deprivations of a woman’s physical liberty.” The majority of these arrests and detentions were made using criminal laws that were never intended to target pregnant women. Adams and her colleagues at SIA documented 21 post-Roe arrests of women in connection with self-managed abortions induced outside clinical settings, many of which involved ending a pregnancy by self-administering abortion pills.

Feticide laws in particular have increasingly been used to target women who end their pregnancies. Currently, 38 states have fetal homicide laws on the books, the majority of which can be applied at any stage of a pregnancy, according to the National Conference of State Legislatures. Most of these laws were introduced to punish violent acts by third parties against women that result in the end of their pregnancies. But in some states, prosecutors use these laws to punish pregnant women themselves.

Perhaps best known among these cases are those of Bei Bei Shuai and Purvi Patel in Indiana. Lawmakers enacted a feticide statute in the state six years after Roe, two years after the state repealed its ban on abortion.

In 2011, Bei Bei Shuai was charged with attempted feticide in Marion County, Indiana, after trying to end her life by eating rat poison. While being treated for poisoning, she delivered a child that soon died from a bleed in her brain. Shuai spent more than a year in jail before being released after agreeing to plead guilty to criminal recklessness. In exchange, the Marion County prosecutor dropped the attempted murder and feticide charges against her.

In 2013, Patel sought to end her pregnancy using misoprostol and mifepristone, abortifacient drugs she purchased online. After delivering a 25-week-old stillborn fetus at home and disposing of its remains, she sought assistance at a hospital in Mishawaka while rapidly losing blood. Patel was later convicted of feticide and sentenced to 20 years in prison. Though Patel’s sentence was later overturned by an appellate court, both her case and Shuai’s remain prime examples of how feticide laws can be twisted, regardless of their original intent, by prosecutors seeking to burnish their own reputations by punishing pregnant women.

Kathrine Jack, an Indiana-based attorney who represented Shuai and amicus curiae in the Patel case, believes the appellate opinion that overturned Patel’s sentence is binding and should prevent similar prosecutions under the state’s feticide law. “That opinion was pretty clear in saying it was not intended to prosecute the women in relation to their own pregnancies,” Jack said. In March, the state’s feticide law was amended to clarify that it is not to be used against women who end their pregnancies, further solidifying its original intent.

Yet in February, a Madison County prosecutor charged another woman with feticide and involuntary manslaughter after the death of her newborn son, which was attributed by doctors to the 34-year-old’s use of meth and other drugs during her pregnancy. “Every county in Indiana has a prosecutor, and despite the outcome in the Shuai and Patel cases, future cases are in the hands of all the different prosecutors at this point,” said Jack. “Obviously, this prosecutor in Madison has a different interpretation [of the Patel opinion].”

In addition to feticide laws, some local prosecutors are dredging up archaic, rarely used laws to incriminate women who end their pregnancies in nonclinical settings. Such was the case in Chesterfield, Virginia, last year, after police found fetal remains in a woman’s backyard. The woman, Michelle Roberts, was arrested on charges of “producing abortion or miscarriage,” a 1950 law that criminalizes any action taken “with intent to destroy her unborn child.”

Lawyers from SIA, NAPW, and the ACLU of Virginia are all assisting with Roberts’s case. As with feticide laws, advocates argue that the charge brought against Roberts relies on a misinterpretation of the law’s original intent, which was to punish third parties, namely abortion providers. “Michelle is standing trial for a nonexistent crime,” Adams said.

Last September, Judge David Johnson of Chesterfield County rejected a motion to dismiss the case filed by Roberts’s lawyer, writing in his opinion that the law does not exclude the prosecution of expectant mothers. Because the case is ongoing, the commonwealth attorney’s office of Chesterfield County declined to comment.

While Adams and her colleagues are working on a legislative strategy to “clean up antiquated abortion laws,” she said, and build on legal precedent from the Ninth Circuit that struck down Idaho’s abortion ban in 2015, they are also focusing their attention on prosecutorial power.

“Because overzealous prosecutors are reaching and grabbing for whatever charges they can throw that will stick on a person, there’s culture change work that needs to happen in the legal field,” said Adams, adding that groups like hers are trying “to educate members of the bar and bench to avoid unnecessary prosecutions.”

“The legality [of self-managed abortion] at any time in any state is governed by a complex cobweb of criminal and civil laws and regulations, and then it’s influenced by the powers of law enforcement,” she said. “All of this is made even less predictable because of prosecutorial discretion and how far that reaches.”

Harris County DA Ran as a Reformer. So Why is She Pushing High Bail for Minor Offenses?

An email obtained by The Appeal shows Kim Ogg's office is intentionally asking for unaffordable bail amounts to hold certain people in jail in Texas.

District Attorney Kim Ogg was sworn into office in January 2017.
KimOgg.com

Harris County DA Ran as a Reformer. So Why is She Pushing High Bail for Minor Offenses?

An email obtained by The Appeal shows Kim Ogg's office is intentionally asking for unaffordable bail amounts to hold certain people in jail in Texas.


When Harris County District Attorney Kim Ogg was running for her seat in 2016, she took a firm stance against the Texas county’s cash bail system, calling it “a tool to oppress the poor” on her campaign website. But internal instructions obtained by The Appeal indicate that her office is still pushing for high bond amounts for minor crimes like marijuana possession and criminal trespass.

The email from Ogg expressly asks prosecutors in her office to request high bond amounts for select defendants, emphasizing that “misdemeanor high bond requests should be $15,000.”

Sent privately to attorneys in her office in December, Ogg wrote: “This directive is coming directly from me.”  

While running for election, Ogg generated excitement among criminal justice reform advocates with her outspoken pronouncements against the bail system. On her campaign website, she blamed the incumbent DA and judges who “utilize a bond schedule that is now the subject of a multi-million dollar lawsuit because it is unconstitutional.”

“Holding low-level offenders who can’t bond out because they’re too poor is against the basic principles of fairness,” she told The Guardian in April 2017, three months after she assumed office.

But the email Ogg sent in December reminded her staff it was their “duty as prosecutors to preserve public safety and to help assure the appearance of defendants in court. In the instances sent out by [assistant district attorney] Amanda Petroff, we must be on record requesting a high bond,” she wrote.

The Petroff email she forwarded said it was “imperative that we file motions for high bond & bond conditions at intake (misdemeanor and felony).”

The examples she gave were defendants currently on bond, currently on deferred adjudication or probation, those with extensive criminal history, “or any other situation where in your judgment the defendant should not be given a PR [personal recognizance] or standard bond.” Petroff wrote that misdemeanor high bond requests should be $15,000.

Trisha Trigilio, a lawyer for the ACLU of Texas, called the email “frustrating.”

The Appeal found a number of misdemeanor cases in which Ogg’s office filed motions for high bond, but where the judge disagreed, ultimately setting bond lower.

In February, Ogg’s office asked for $15,000 bond for John Crain, a man charged with misdemeanor theft, because it said he was under the supervision of a criminal justice agency at the time. In that case the judge set Crain’s bond at $1,000. Also in February, Clifford Holmes was charged with Class B possession of less than two ounces of marijuana. The DA’s office filed a motion asking for $15,000 bond because it said Holmes was already out on deferred adjudication for unlawfully carrying a weapon in his car. The judge disagreed with the amount, setting bond at $1,000. Eric Allen, accused of trespassing, had his bond set at $3,000; the DA’s office had requested $20,000. Also charged with trespass, Jermaine Chambers’s bond was set at $2,500; Ogg’s office had asked for $15,000.

In one case in May, Ogg’s office asked for bond “of no less than $100,000.” The accused, James Sam, had been charged with a misdemeanor violation of a protective order (he messaged someone he was forbidden from contacting). In that case the judge granted a bond of $10,000, 10 percent of what the DA’s office had requested.

Asked to look at these specific cases where the DA’s requests for high bonds had been refused, Trigilio, a staff attorney for the ACLU of Texas told The Appeal, “No matter what someone’s criminal history [is], these are such minor offenses…the request for bail exceeds what some of these people make in a year.”

The crimes these people were accused of—offenses like criminal trespass, a charge often levied against homeless people sleeping on the street—were nonviolent, Trigilio pointed out. “[Criminal trespass] is one of the lowest level crimes you can be charged with, and the bond amount far exceeds what someone could ever be fined for this offense. It’s frustrating when you see what’s in that email [from Ogg] if you compare this to what she says publicly.”

“Prosecutors have a responsibility to work for what’s fair, not what’s harsh,” Trigilio continued. “Bail recommendations should always be individualized, and they should be the least restrictive conditions possible.”

She said it’s never appropriate for a DA to ask for $15,000 bond for charges like marijuana possession, and pointed to research showing that releasing people based on their promise to pay if they don’t turn up in court is just as effective as requiring money bail up front. “Forcing someone to buy their release doesn’t increase rates of appearance in court,” she said. “It actually makes things worse—people wind up sitting in jail for longer, which disrupts their lives and increases the chance that they’ll commit more crimes in the long run.”

In 2016, the nonprofit groups Civil Rights Corps and the Texas Fair Defense Project sued Harris County on behalf of poor defendants arrested on misdemeanors who couldn’t afford to pay bail. In April 2017, a federal district judge issued an injunction calling the county’s bail practices unconstitutional. That order was largely upheld in February by the Fifth Circuit Court of Appeals, which found that Harris County’s bail practices discriminated against poor misdemeanor defendants. Ogg filed a brief in support of bail reform in 2017 and celebrated the district judge’s ruling, saying, “From now on, people can’t be held in jail awaiting trial on low-level offenses, just because they are too poor to make bail. … We welcome the ruling and will comply fully with it.”

The federal district judge issued new rules in June requiring Harris County to release people charged with certain offenses like drunken driving or writing bad checks if a person with money in the same situation could make bond. On Tuesday, Harris County misdemeanor judges claimed in federal appeals court that the new rules would endanger public safety.

When asked to account for his office’s high bond requests for misdemeanors, Harris County’s First Assistant District Attorney Tom Berg blamed a risk-assessment tool which, he told The Appeal, is being misapplied by judges to set bond too low. “If we remained silent the magistrate would likely set bail and conditions based on the tool,” he wrote in an email. “The police and the public would also accuse us of ‘setting’ a low bail even though it was the magistrate who did it.”

Berg argued there is a small subset of people charged with misdemeanors who present a flight risk or are so dangerous that they can’t be trusted to reappear in court or keep out of trouble, but Texas allows preventive detention only under strict conditions. As a result, prosecutors are strategically requesting bond amounts they know the individual can’t afford, Berg said. “We are still operating under a cash bail system where if we want to hold someone because that person is dangerous, the only mechanism we have is to ask for cash conditions greater than a person can make.”

Berg said the issue is more nuanced than many people understand.We really are trying to get most of the people out of the jails. … We’d like to divert those minor cases completely out of the criminal justice system. In many respects we’re trying to make the best of what we’ve got here until it can be reformed.”

Berg said the DA’s request for a high bond is made in writing for “public safety reasons,” even in nonviolent misdemeanor cases—“in order to memorialize our justification and articulate why a particular defendant is a greater risk of flight or danger than that predicted by the risk assessment tool.”

Jocelyn Simonson, Associate Professor of Law at Brooklyn Law School, said Berg’s statement is an admission that the DA’s office is using money bail as a form of de-facto pretrial detention. “[They’re admitting] to asking for high bail with the clear intention of causing someone to be held in jail pretrial because that person can’t afford to pay the amount they’ve requested.

“[Berg] makes it sound like they have no choice but to ask for high bail. That’s not true. There’s an alternative. Ogg could stand up on the record in every case and say this office is not going to ask for money bail for an amount someone can’t afford because it offends notions of fairness. But she’s not saying that.”

Jennifer Laurin, Wright C. Morrow Professor of Law at The University of Texas School of Law, noted that prosecutors and defense attorneys are often still operating with limited information about a case when bond is being set. “It’s at an early stage in a prosecutor’s relationship with the case and the defendant,” she said, “so I think it’s fair to be skeptical of unilateral determination by prosecutors that someone is more dangerous than indicators suggest.

“What kinds of potential biases are entering into that calculus? It should give one pause about a practice continuing where prosecutors can unilaterally reach those conclusions without an adequate airing of the basis for them.”

What’s more, a study published in 2016 by the Quattrone Center for the Fair Administration of Justice, a national criminal justice project at the University of Pennsylvania Law School, said the cash bail system could actually harm public safety. In Harris County alone, the study found that defendants accused of misdemeanors who were jailed before trial were 25 percent more likely to plead guilty, 43 percent more likely to be sentenced to jail, and ended up receiving sentences more than double the length of defendants in similar situations but who were not incarcerated before their trials.

In addition, it found that in Harris County, pretrial detention had what it called a “criminogenic impact,” appearing to actually cause those who were detained to commit more crimes after their release.

Paul Heaton, an economist at the University of Pennsylvania and one of the study’s authors, told The Appeal that a prosecutor may think high bail is the only tool available to detain individuals that they believe present a substantial risk to public safety. “High bail can amount to code for ‘we think this type of defendant is enough of a risk we shouldn’t be releasing them,’” he said.

But Heaton also offered the following scenario: If someone is arrested for disorderly conducted and can’t afford bail, they might spend a couple of days in jail. “What’s their employer doing during that time? What if a rent payment is due? What’s happening to their kids? There’s potentially a lot of disruption.”

If an arrest is for a minor misdemeanor, Heaton said a defense attorney may recommend that her client pleads guilty so he will be released for time served. “If that person says ‘but they got the wrong guy’ the attorney could argue the case, but the trial date may not be for another week. Research shows detaining people destabilizes their lives in terms of housing, employment, family relationships, and transportation. It’s ironic that these policies which are enacted to preserve public safety actually end up creating more crime down the road.”

Sandra Thompson, director of the Criminal Justice Institute at the University of Houston, agrees that a large part of the problem is with the traditional money bond system that Texas employs. “What judges are allowed to do varies depending on the charged offense, not based on results of a validated risk assessment,” she told The Appeal. Thompson said it’s hard for an outsider to evaluate the cases that The Appeal found without studying them closely. “If prosecutors are asking for money bail and it’s high, and yet the risk assessment says this person is not a high risk, then that’s a problem.”

Laurin said that if Ogg’s position is that she’s operating within a system not of her making; that her hands are tied and that she has to ask for high bond because she’s determined that some people will not turn up at court or will reoffend if they’re freed, then “a better approach would be to engage with the county and magistrates to get a functional risk assessment tool … let’s get an objective process in place we can all agree on.”

But the policy could be a political “hedge,” Laurin said, that Ogg wants simultaneously to be seen as progressive but that she’s also throwing a bone to anyone not on board with the reforms that the bail litigation has pushed for or who are risk-averse to the political fallout from the public safety consequences of releasing someone who could then reoffend.

“It’s possible both of these things are in the mix,” she said.

The ACLU’s Trigilio said it’s important to remember that the Supreme Court has held for decades that when bail is designed to ensure appearance, it cannot be excessive. “Courts are required to consider less-restrictive alternatives to make sure a person comes back to court. If a promise to pay for failure to appear is going to do just as good a job as making people pre-pay for release—which is what study after study shows—then courts should be releasing people based on their promise to pay. What’s most frustrating is if anyone should know this research, it’s officials in Harris County.”

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In New York, A Harm-Reduction Organization Is Leveraging Participatory Defense To Empower Its Clients

Grassroots group VOCAL-NY is teaching people with substance use disorder how to avoid getting ensnared in the criminal justice system.

Jason Del Aguila of VOCAL-NY
Christopher Moraff/Jason Del Aguila

In New York, A Harm-Reduction Organization Is Leveraging Participatory Defense To Empower Its Clients

Grassroots group VOCAL-NY is teaching people with substance use disorder how to avoid getting ensnared in the criminal justice system.


VOCAL-NY, a Brooklyn-based grassroots organization seeking to empower low-income people affected by substance use disorder, recently launched a participatory defense program teaching people how to avoid getting ensnared in a criminal justice system that often works against them.

The goal is to combine traditional harm-reduction services, such as syringe exchange and HIV and hepatitis C testing, with less tangible resources, such as knowing how to de-escalate an encounter with law enforcement.

Participatory defense is a companion to Court Watch NYC, a collaborative program between VOCAL-NY and public defenders that trains community members to observe and document trends in criminal court arraignments and hearings.

“I realized we needed a program that did more than Know Your Rights and ‘CopWatch’  trainings, which focus on filming police encounters, de-escalation and documenting, and don’t necessarily go through all the court processes,” explained Jason Del Aguila, who is in charge of the participatory defense effort. “The idea was, how do we help you navigate through the everyday legal gauntlet, from the streets to the courts and even after doing time. We’re creating community efforts to keep people from becoming another victim of an injustice system.”

He says that often means helping participants understand court documents and organize support in advance of hearings, but more often the aim is to prevent them from getting arrested in the first place.

“I’ve had people who say, ‘It doesn’t matter, the cops can do whatever they want,’” Del Aguila said, “so I teach them, this is what you can do to prove that they did something wrong.”

Participatory defense is not a new concept, or even a single unified program with a defined set of protocols. Modeled on Silicon Valley De-Bug, a community advocacy and storytelling organization founded in 2001 in San Jose, the movement encourages family and friends of the accused to help with their defense. According to the Albert Cobarrubias Justice Project, which promotes the national expansion of participatory defense, the goal is to provide additional leverage to overburdened public defenders. Since about 80 percent of felony defendants in state court systems rely on public defenders, criminal justice reformers say participatory defense has the potential to “change the balance of power in the courts.”

Over the past decade public defender organizations in more than a dozen municipalities, including Philadelphia, Baltimore, Memphis, and Birmingham have established some form of a participatory defense program.  But some advocates say that the stigma associated with drug use and substance use disorder has promulgated a two-tiered system of advocacy that excludes users of drugs like heroin and crack cocaine.

“In progressive circles there’s always been this sort of distinction between the deserving poor and the undeserving poor,” said Paul Cherashore, an activist who spent more than two decades working in harm reduction circles in New York and Philadelphia, “and drug users have always held this bottom rung when it comes to providing aid or advocacy.”

VOCAL-NY’s program is among the first in the nation to combine traditional harm-reduction services with formal participatory defense training.

“As a harm-reduction agency, we do everything we can to reduce the harms associated with drug use,” said Alyssa Aguilera, co-executive director of VOCAL-NY. “Most of the time that means providing sterile syringes to prevent disease transmission or teaching people how to reverse an overdose with Naloxone. But it can also mean supporting people when they get arrested and helping them navigate the criminal legal system through participatory defense. For our participants, most of whom also struggle with poverty and homelessness, it’s often the police and prosecutors that cause the most harm, not their drug use.”

VOCAL-NY’s Del Aguila leads its participatory defense trainings two days per week, where he encourages people to share their experiences with the criminal justice system. His seminars also include teaching clients how to organize court support for hearings, and how to identify and protest unjust policing patterns like ethnic profiling or stop-and-frisk.. He also instructs VOCAL-NY participants on their legal rights and walks them through defusing encounters with police.

“Anything you say or do can and will be used against you, so don’t say shit,” Del Aguila said. “Whether you’re holding drugs or not, ask if you are being detained, and if the answer is no, then leave immediately. And if you’re asked to consent to a search, answer no, and say it loudly and clearly so any witnesses can hear.”

“I try not to make it about having a competition with the cops because you’re gonna lose even if you’re right,” he adds. “You’re trying to win against someone who has the odds stacked for them.”

 

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