Following reporting this month by AL.com, Etowah County in northeast Alabama ended a policy that often held women accused of drug use during pregnancy in jail for weeks or months before trial while pregnant or just after giving birth.
Attorneys for the National Advocates for Pregnant Women became aware of the situation this summer and said it has now stopped.
They first represented Hali Burns, a woman accused of illegal use of Subutex and methamphetamine during pregnancy. She was arrested at the hospital after the birth of her son and held in the jail in Etowah County for several months. Burns, who disputes the validity of the positive drug tests that led to her arrest, tried several times to pay bond and enter rehab but was instead held from July until Sept. 12, when she was released to community corrections.
The national organization also fought for the release of Ashley Banks, who was arrested for misdemeanor pot possession and having a pistol without a license to carry. When she admitted smoking pot on the same day she found out she was pregnant, officers added the felony charge of chemical endangerment that required release to rehab. Banks did not qualify for rehab, according to two evaluations conducted inside the jail, so she remained incarcerated for three months during a high-risk pregnancy.
Three other women were released on September 14, 15 and 16, according to a release from NAPW, which has been working with local attorneys in Alabama, including pro bono lawyers from Baker Donelson. Two other women not represented by the group have also been let out of jail, the release said. Attorneys argued the practice treated pregnant women and new mothers differently than anyone else, effectively denying release from jail until they could go straight to rehab.
The new local policy requires women to pay a $2,500 property or surety bond so they can leave jail, which is in line with what happens to people facing similar felonies in Etowah County, according to statements made by local attorney Morgan Cunningham during a hearing for Burns. That’s down from the $10,000 cash bond previously required. The women will also have to pay for pretrial monitoring. Pregnant women will also be required to drug test every two to three days, according to NAPW.
“Pregnant women and new mothers should never have been unconstitutionally detained in the Etowah County Jail for a single day, let alone for months on end,” said Emma Roth, staff attorney with NAPW and lead attorney on the Etowah County cases, in a statement. “While we’re thrilled they’re finally being released, the trauma inflicted on them and their young children from their prolonged separation can never be undone.”
Etowah County District Attorney Jody Willoughby said in a email his office can only request bond conditions that must be approved by judges. One of the goals is to protect those who may be harmed by the defendant.
“I have not met anyone involved in this process that didn’t want to see safety of the child achieved, and reunification of the child with the mother,” Willoughby wrote. “I don’t think you can honestly say that a mother that is so addicted to dangerous drugs and choosing to use them during pregnancy is overly concerned about her prenatal care.”
Roth said drug use during pregnancy should not be addressed through arrest and incarceration.
“Etowah County’s policy change is a meaningful first step,” she said, “but NAPW will not stop fighting until substance use and pregnancy is treated as a matter of public health, not a reason to put mothers behind bars.”
Medical experts who submitted affidavits on behalf of the jailed women said the policy could increase stress and complications during pregnancy and harmed newborns by separating them from their parents. Banks, who was arrested for smoking marijuana, said she slept on the floor for three months and suffered bleeding linked to a subchorionic hematoma that increased the odds of miscarriage.
NAPW started a fund for the incarcerated women earlier this month to pay for supplies and legal representation. The organization, which tracks criminal cases against pregnant women, said at least 150 women have been arrested in Etowah County for drug use during pregnancy. The county leads the state in those arrests, according to the press release.
Willoughby said his office plans to continue to prosecute these cases. He said children born exposed to substances have no choice about their circumstances and often suffer due to the actions of their mother.
“For us to do nothing, would make us an enabler of a deadly addiction, complicit in the abuse of a child, and ultimately lead to the death of a mother,” Willoughby wrote. “We chose to act. Certainly, every defendant is innocent until proven guilty. The newly imposed bond conditions now put EVERYTHING back in the mother’s hands. The same individuals charged with choosing dangerous drugs over life.”
This story was updated on Sept. 26 at 3:30 pm with response from the Etowah County district attorney. Below is the full, emailed response from District Attorney Jody Willoughby:
As District Attorney, foremost, I have a duty to protect a child victim as defined by Code of Alabama and Case law.
Any bond request by my office is just that. It’s a request to the Court to impose certain bond conditions that help insure the safety of those who may be harmed by the defendant. Ultimately, that decision is left to the Courts to impose any, none, or all requested conditions. My Office has certainly supported the decision of our Courts to impose conditions that will assist in protection of the particular child’s life.
I have not met anyone involved in this process that didn’t want to see safety of the child achieved, and reunification of the child with the mother.
I don’t think you can honestly say that a mother that is so addicted to dangerous drugs and choosing to use them during pregnancy is overly concerned about her prenatal care.
Have you seen a child born into addiction? There’s no way one could sit, watch, and listen to the screams of an addicted child who never once was asked if he/she wanted to absorb illegal substances, and then advocate for the position of zero accountability.
For us to do nothing, would make us an enabler of a deadly addiction, complicit in the abuse of a child, and ultimately lead to the death of a mother. We chose to act.
Certainly, every defendant is innocent until proven guilty. The newly imposed bond conditions now put EVERYTHING back in the mother’s hands. The same individuals charged with choosing dangerous drugs over life.
Regardless, I can assure you I will continue to prosecute those who harm innocent life to the fullest extent of the law.
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