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Two States Just Made It Easier to Take Babies Away From Mothers Who Use Drugs During Pregnancy

Alex Nuñez / Flickr

Two States Just Made It Easier to Take Babies Away From Mothers Who Use Drugs During Pregnancy

M. thought she was doing the right thing. She had become dependent on opioids, but when she learned she was pregnant, she immediately tried to enroll in a medication assisted treatment (MAT) program. MAT is the standard of care for treating people with opioid use disorder — especially pregnant women, as quitting opioids too suddenly during pregnancy can result in complications.

Despite several phone calls to treatment providers in her county and surrounding counties, M. could not find a provider who was willing to accept her. Many substance use treatment services don’t accept pregnant women, or are otherwise inaccessible to them, despite federal and state regulations that require prioritizing them for treatment. In order to to avoid the risk of withdrawal and possibly harming her fetus, M. did what many pregnant women in her situation do — she continued to use illicit opioids.

As her due date approached, M. found a hospital that claimed to specialize in the care of babies who were exposed to opioids in utero and traveled a far distance to give birth there. She told her treating physician about her opioid use during pregnancy, not realizing this could precipitate call to Child Protective Services (CPS). CPS immediately removed her newborn from her care, largely based on evidence of her opioid use. In the subsequent months, M. saw her son once a week at best. When she visited him, she was distressed to find he often had seemingly untreated rashes. She struggled every day with the unimaginable pain and grief of separation from her newborn. As of last year, they were still apart, and M. has since lost touch with her lawyer.

More mothers may soon know M.’s pain. At least two states, Arizona and Kentucky, have just made it easier to terminate the rights of mothers who use controlled substances while pregnant. Arizona’s legislation, which became law in April, permits termination of a mother’s parental rights, either immediately when her newborn is born or within one year of her newborn’s birth, depending on how chronic the illicit drug use appears to the court. Kentucky’s legislation, which also became law last month, permits termination of a mother’s parental rights if her newborn exhibits signs of withdrawal, known as neonatal abstinence syndrome, as the result of illicit opioid use, unless the mother is in substantial compliance with both a drug treatment program and a regimen of postnatal care within 90 days of giving birth.

Terminating a mother’s rights to her newborn is an especially brutal drug war tactic that research and experience show will inflict far more harm than good on the children and families it allegedly aims to protect. Such policies are rooted in stigma and gross indifference to what the best available science tells us about how to compassionately and effectively serve pregnant women struggling with drug use disorders and their families.

“The legislators behind these laws are essentially creating a capital offense for women who give birth despite having used an illegal drug,” said Erin Miles Cloud, a senior attorney at the Bronx Defenders Family Defense Practice, who has represented numerous parents facing termination of parental rights proceedings. “Termination of parental rights is a mechanism by which families are turned into strangers, all contact and personal identity is erased, and families are destroyed forever. In that way, this legislation’s attempt to punish mothers and fathers acts as a civil death penalty for families, for which children will pay the ultimate price.”

Supporters of these laws justify the surveillance, policing, and punishment of drug-using mothers by referencing two assumptions that were touted and then discredited during and after the “crack baby” scare. First, they say the developing fetus and newborn will be harmed by prenatal exposure to illicit substances. Second, they claim that drug use during pregnancy is a reliable indicator of parental unfitness.

While a robust body of literature supports a causal connection between prenatal exposure to alcohol or tobacco (or lead or poverty for that matter) and negative postnatal health outcomes, the scientific literature has not conclusively demonstrated any long-term negative effect of prenatal exposure to opioids. Neonatal abstinence syndrome (NAS) is itself a treatable and transient condition, and a growing body of literature confirms that one of the most effective treatments for NAS is keeping the newborn and mother together in a soothing environment while encouraging skin-to-skin contact and breastfeeding. So the very condition that Kentucky believes should trigger fast-tracked termination of parental rights is in fact often most effectively treated by close, consistent contact between the mother and newborn.

The research is also clear that the results of a drug test alone are not an appropriate proxy for determining parental fitness. Millions of parents who use drugs or have substance use disorders parent their children well. Studies have found that babies exposed to cocaine in utero are not at greater risk of maltreatment as young children than similarly situated babies. Other studies have found that babies exposed to cocaine in utero perform better on several developmental measures when left with their mothers than do those removed to foster care.

The research that does claim to link substance use to maltreatment of children is not authoritative. It often relies on caseworker-confirmed reports of child maltreatment, despite the well-documented propensity of caseworkers and family courts to base findings of child neglect on evidence of drug use alone. And the scientific literature that suggests that substance use produces social cognitive deficits in parenting is in its infancy and rather underwhelming. For example, one study found that parents who use opiates find babies less cute — while conceivably notable, this finding does not meet the legal standard for terminating a parent’s rights.

Medical and public health authorities warn that women who fear losing their babies upon seeking medical care will be deterred from seeking the care they need. Community after community has seen this in the aftermath of local crackdowns on drug-using pregnant women — fewer women seek prenatal care and substance use treatment, even after the local authorities decide to change course. Experts recognize that pregnancy and childbirth present an especially opportune moment to connect a woman with services, including substance use disorder treatment — yet threats of punishment only isolate pregnant women.

Supporters of these laws blame the mothers for the dissolution of their families, arguing that the mothers need only enroll in a drug treatment program to retain custody of their children. This claim disregards the fact that drug addiction is a health issue with biological, behavioral, and genetic dimensions, and similar to other health conditions, it does not respond wellto artificially imposed treatment timelines or mandated treatment. These same legislators would be hard-pressed to take babies away from mothers who were struggling with medical treatment for hypertension or diabetes. This claim also disregards the serious gaps in access to treatment for substance use disorders, especially for poor people, and the absence of a social safety net to even support struggling families in the first place.

“Instead of punishing women for the chronic condition of addiction, something that is unethical, ineffective and inhumane, we should invest instead in the expansion of women- and family-friendly treatment resources,” said Dr. Mishka Terplan, a professor in obstetrics and gynecology and psychiatry and associate director in addiction medicine at Virginia Commonwealth University.

While medication assisted treatment (MAT) is covered under Arizona’s newly expanded Medicaid programs, Arizonans still struggle with access to MAT treatment. As is true across the nation, rural areas have limited, if any, access to MAT. Many substance use treatment centers do not offer MAT due to the stigma associated with it, and those centers that do provide MAT have not necessarily fulfilled their responsibility to prioritize pregnant women. Meanwhile, private insurance companies have found ways to circumvent Obamacare requirements on MAT coverage.

This is all exacerbated by a series of measures Arizona has undertaken to constrict its social safety net, leaving families struggling with inadequate access to cash, food, housing, child care, and transportation. The vast majority of Temporary Assistance for Needy Families (TANF) funding, or federal welfare dollars meant to help the poor, is not spent on assistance to poor families, but rather on placing and keeping children in the foster care system. Arizona also has the strictest TANF timeline in the nation, kicking families off welfare after one year. Not coincidentally, in the aftermath of the 2008 financial crisis, as Arizona’s social safety net shrank, its foster care numbers soared. Arizona now has one of the highest foster care placement rates in the nation.

Kentucky similarly struggles with poverty, poor access to substance use treatment services, and a child protective system that spends more resources on placing children in foster care than keeping them with their families. Kentucky ranks amongst the last in the nation in rates of childhood poverty. The federal Department of Health and Human Services recently released a report reviewing Kentucky’s child welfare system. It found that parents face long wait lists when accessing substance use treatment services and often don’t have the means to pay. The report also found that Kentucky’s child protection agency was not making enough efforts to prevent removal or re-entry to foster care. Indeed, Kentucky has one of the highest rates of child removal in the country.

Such inhumane responses to drug use can only exist because they are almost exclusively reserved for poor people and people of color. The overwhelming majority of parents prosecuted by the child welfare system are poor, and parents of color are overrepresented. Several studiesdocument that hospital staff disproportionately drug test and report to child protective services low-income women and women of color. Indeed, few, if any, middle- or upper-class women who use drugs during pregnancy will ever experience a child abuse and neglect proceeding, let alone a termination of parental rights — though drug use is common among people of all socioeconomic levels. Many advocates I interviewed in the course of my own research on this subject described the surveillance of pregnancies and non-consensual drug testing performed on pregnant women and their newborns as comparable to stop-and-frisks for young men of color.

Despite progress in the criminal legal system, the drug war remains almost unchallenged in the child protection system, and it is wreaking havoc on families. Before losing contact with her lawyer, M. told me her story via email. “In the family court systems, there is no … respect for medicine or science,” she wrote. “This is all done under the cloak of what is in the ‘best interest’ of the child — but that is ironic, because they are hurting my son.”

The Hidden Police Violence Epidemic Behind a ‘Swatting’ Death

A SWAT team prepares for an exercise.
Oregon DOT

The Hidden Police Violence Epidemic Behind a ‘Swatting’ Death

On December 28, 2017, 28-year-old Andrew Finch of Wichita, Kansas, opened his front door to a horde of shouting police officers. Ten seconds later, he was fatally shot in the head — yet the officer who pulled the trigger isn’t the one being charged with his death.

The events of that tragic late December day were set in motion by three Call of Duty gamers fighting over a $1.50 wager. One gamer, Tyler Barriss, prank-called Wichita 911, saying he was suicidal, had killed his father, and was holding others hostage at the address that one of the other gamers had provided as his own. But the target of the prank didn’t actually live there; Andrew Finch and his family did.

At approximately 5 p.m. that day, 10 Wichita police officers and three deputies surrounded the house. When Finch exited the home to see what the commotion was about, he threw his hands into the air in surrender. But then, after becoming startled, he put one hand down for a second. That’s when a police sniper fired from 50 yards away, killing him.

Immediately after shooting Finch, the officers ordered his family to come out of their home with their hands up, and even forced his young niece to walk over her dying uncle’s body, according to a civil rights lawsuit filed in January in federal court on behalf of Finch’s mother. The family members were then handcuffed and forced to wait outside in below-freezing temperatures for over an hour, interrogated, and released without explanation.

The prank caller, Barriss, was tracked down in Los Angeles less than 24 hours later and charged with involuntary manslaughter, giving false alarm, and interference with a law enforcement officer. He faces 11 years in prison. In the wake of the incident, reporters from national media outlets like the New York TimesCBS News, and NPR wrote stories about “swatting,” a gamer trend where players like Barriss call in fake emergencies to 911 which sends SWAT teams to a rival’s house as a prank.

The headlines, however, obscured the fact that there was no justice for Finch. On April 12, four months after the shooting, Wichita District Attorney Marc Bennett announced that he would not bring charges against the officer who killed Finch. The city has refused to name the officer who fired the fatal shot.

According to the Finch family complaint, his killing at the hands of the Wichita police was unusual only because it stemmed from a prank. Police shootings are disproportionately common for a city its size, the complaint says. Wichita has a ratio of one shooting for every 120 officers, about 11 times higher than the national average. Wichita officers were involved in at least 29 shootings between 2010 and 2015, 15 of which were fatal. Nonetheless, the DA has determined that every one of these shootings was justifiable. And in 95 percent of police shootings there, Wichita officials have also shielded the officers’ names from the public.

“This pattern and practice of concealing misconduct and concealing the identities of officers involved in misconduct encourages officers to believe that their unconstitutional behavior will be protected,” the Finch family said in its complaint, “and that they will suffer no discipline, thereby emboldening them to act with impunity.”

The Finch family argues in its lawsuit that even if the police faced a true hostage situation at Finch’s house, shooting whoever came to the door violated departmental policy. But despite clear Wichita Police Department guidelines regarding how volatile situations involving mentally ill suspects should be handled — including instructions that “in a stressful situation, a police member’s first reaction should be to determine whether the objective can be accomplished without the use of a weapon” — the Wichita DA has only once determined that an officer-involved shooting violated department policy over the past two decades.

Perhaps this is because the city’s police shooting investigations are hampered by strict requirements in its police union contract. According to data compiled by the Black Lives Matter-affiliated Campaign Zero, Wichita allows officers to meet privately with union representatives who can coach them on what to tell investigators before being questioned about a shooting. The city also allows officers to record their own interrogations, tightly restricts what interrogators can say or do in questioning, and erases officer misconduct files. Interviews are conducted by the officer’s co-workers, rather than by independent or state investigators.

“How is it remotely justice when the wrongdoers are investigating themselves?” Finch’s mother, Lisa, asked City Council in March.

The Finch family has continued to fight for justice, even after the DA announced his decision to not charge the officer who fired the fatal shots, with some measure of progress. A newly formed citizens advisory board will review the case, and the department says it is conducting an internal investigation.

“The issue of my innocent son being shot through the screen door is not going away any time soon,” Lisa Finch warned the council.

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Crime Victims Backing Philly DA Larry Krasner Don’t Want Tougher Sentences — They Want Fair Ones

Kim King (back left) behind her brother Damani, with her brother Terrell (back right) holding their youngest brother.
Photo courtesy of Kim King

Crime Victims Backing Philly DA Larry Krasner Don’t Want Tougher Sentences — They Want Fair Ones

A widely shared, recent piece in the Philadelphia Inquirer tells the story of a woman’s grief six months after her husband was murdered. Gerry Grandzol was shot at close range by two young Black men while he was unpacking groceries from his SUV with his two young daughters. The family, which is white, lived in a typically sleepy neighborhood where shootings are rare. After losing her husband, Kristin Grandzol said she was moving her family to the suburbs. “Slain Spring Garden activist Gerard Grandzol’s widow: City not safe, we’re leaving,” the headline proclaimed.

In part, the Inquirer implied, that’s because she wasn’t sure Philadelphia’s new, reform-minded district attorney, Larry Krasner, could be trusted to hold her husband’s killers responsible. One of them was under 18 and she worried that given Krasner’s push for more “lenient sentences,” as the story put it, he would be tried as a juvenile. “I know I wouldn’t want to still be on the streets of Philadelphia with them free,” she said. But Krasner’s office had not said it would charge the perpetrator as a juvenile — a point buried in the piece — and later wrote a strongly worded opposition to the defense’s motion to do so. A hearing to decide if he should be tried as a juvenile is scheduled for next month.

Articles like this and others, featuring the stories of victims who are unhappy with Krasner’s office, make it seem as if crime victims on the whole oppose him, that they want a DA who throws the book at criminals in order to keep them safe. But advocates of fair sentencing say that narrative ignores another set of crime survivors: those who have suffered but who still support a more nuanced approach to punishment and rehabilitation. Many of those people not only support Krasner — they campaigned for him.

“People who are most affected by crime most often have an understanding that people who are committing crime and ending up in prison for it are the same people that have been harmed,” said Yale Law School professor Miriam Gohara.

Take Kim King, age 46, who volunteered for Krasner’s campaign. Twenty years ago, her younger brother Damani was murdered. She said Damani was sitting in a car late at night in North Philadelphia when another young man opened fire. Damani was just 23 years old. It was a “devastating” blow, King said. She comes from a tight-knit family, with a father who was a high school teacher and tried to instill in them the importance of education and good morals. This wasn’t supposed to happen to her family, she thought. Her early days of grief were defined by both sadness and a burning desire for retribution. The night Damani died, her family gathered at the hospital. “There were some males in the family who were talking about going to the area and seeking revenge. I remember wanting that; I wanted him to hurt,” she said of the perpetrator. “I wanted him to be punished.” Luckily, her father talked the younger men down. Otherwise, one tragedy would likely have led to others.

The case was never solved. King said that the police investigator was sure he knew who did it, but could not find witnesses to ID the gunman. About a year after Damani was killed, she heard that the suspect was convicted for an unrelated murder and sent away for life. And in Pennsylvania, life means life. She thought this would help ease her sorrow, knowing that her brother’s killer was behind bars for his remaining days — but found that her grief stung just as sharply. “So what that he got a life sentence? That didn’t give me any resolve for Damani,” she said. “I realized it just didn’t relieve me from the pain.”

She came to believe that in order to move on, she needed to forgive her brother’s killer. This revelation came at a time when she was looking for people to find the same mercy for another of her brothers, Terrell, who had been given a life sentence for his participation in a murder. “I couldn’t ask for forgiveness for one when I wasn’t willing to give it to the other,” she told The Appeal. She describes Terrell as a young man who sought acceptance in the wrong places. He did something immoral, and needed to be punished, she said. But in the years since, he’s grown into a calm, insightful adult, she said, a wholly different person than the young man who got into trouble. She wants him home.

King mourns the loss of both her brothers: one to gun violence and the other to prison. This viewpoint has shaped her views on criminal justice. “If you did something wrong, you deserve to be punished, but don’t take away an entire life,” she said. “We need to deal with each [person] as an individual instead of a one-size-fits-all with these ridiculous sentences.” When she heard about Larry Krasner, a DA candidate who had a “similar mindset” to her when it came to punishment and sentencing, she volunteered for his campaign.

King’s position as a crime victim who supports a less punitive criminal justice system is not uncommon. A 2016 poll of over 800 crime victims by the Alliance for Safety and Justice found respondents overwhelmingly favored rehabilitation over harsh punishment: Seven out of 10 preferred prosecutors who focused on neighborhood-based rehabilitation services over long prison sentences — victims of serious violent crimes, including rape, assault, sexual assault, or murder of a family member, leaned towards rehabilitation at an even slightly higher rate. Fifty-two percent of all respondents believed that prison makes a person more likely to commit another crime.

That’s partly because of where crime happens. It tends to be concentrated in neighborhoods that are less economically stable. The reality is that most people who are perpetrators of violence have also been victims. Studiesshow that incarcerated men have experienced trauma at a rate double that of other men in the community. One study showed that up to 60 percent of male inmates showed signs of PTSD — not from war abroad, but from getting beaten up, and threatened with guns or knives.

Nationally, 95 percent of incarcerated people eventually return home, so high-crime communities have a vested interest in perpetrators’ rehabilitation. “It makes sense that communities would rather have people come back who have received mental health treatment for their trauma or other conditions, for their addictions, rather than having people come out who were more traumatized than when they went in,” Gohara said.

Lorraine Haw with her son Phillip Ocampo.
Photo courtesy of Lorraine Haw

In Philadelphia, King was far from the only crime victim who campaigned for Krasner. At least a dozen others were actively involved, according to Sean Damon, an organizer at the West Philadelphia Amistad Law Project. One of those volunteers was Lorraine Haw, 61, who is fighting for her son to be released from a life sentence, and also for the man who killed her brother to be taken off death row. Like King, Haw understands that when a loved one is hurt or killed, the natural initial reaction is a desire for retribution. “But once your sense comes back, you realize that there is no closure,” she said. “You know how I live better? I’ve forgiven that man that took my brother’s life. Everybody deserves a second chance.”

Krasner hasn’t always won praise from crime victims. During his first few months in office, his lawyers dropped the ball on keeping victims up to date on changes in individual cases. This lapse drew pushback, which was fair, says Victoria Greene, co-founder of EMIR Healing Center, a nonprofit that supports family and friends of murder victims in a relatively high-crime neighborhood. She herself lost a son to gun violence. But in the wake of that criticism, Krasner announced a committee of crime victims to act as policy advisers, something he’d planned since his election. “He definitely is considering victims, talking about them, that’s an issue that he’s strong on,” she said.

To Greene, what’s most important is that victims are given a seat at the table, both at trial and in policy discussions — something she has not seen past DAs prioritize. Many people she works with report feeling like “pawns” at the trial, she said, and then having their cases “swept under the rug.”

The families Greene helps, who are mostly Black or Latinx, “they’re not heard,” she said, unlike white families like the Grandzols, whose cases more often make the headlines. “When someone white is murdered it’s, ‘Oh they could have been successful. Oh, they could have been this or that.’ That’s not what you hear when a Black man is murdered,” she said. She is hopeful that Krasner “will help change the culture and give a semblance of equality,” she added. “Victims need a platform. That’s the problem; we don’t have a platform.”

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