Fla. court upsets woman's conviction for delivering drugs to her newborns

July 24, 1992|By New York Times News Service

The Supreme Court of Florida yesterday overturned the conviction of Jennifer Clarice Johnson, the first woman in the nation convicted of delivering drugs to her newborn infants through the umbilical cord in the seconds after their births.

Ms. Johnson, 26, of Altamonte Springs was charged and found guilty under laws intended to apply to drug traffickers. About 160 such criminal cases have been brought nationwide.

"It's a great victory for public health, for women and newborns and common sense," said Lynn Paltrow, litigation director of the Center for Reproductive Law and Policy, which provided legal representation for Ms. Johnson.

"It's the first supreme court in any state to address a conviction of a pregnant woman for giving birth to a substance-exposed newborn. It's significant both because it's a unanimous decision and because now all the courts that have ruled on these cases say they're illegal, unconstitutional or both."

Ms. Johnson was charged with drug delivery in 1989 on the basis of tests performed after the births of two of her children. Investigators said a son born in 1987 and a daughter born in 1989 had tested positive for cocaine. In both cases, Ms. Johnson told her doctors that she had used cocaine the day before the deliveries. Both children were born healthy and at full term.

Experts estimate that as many as 11 percent of pregnant women use illegal drugs during pregnancy, mostly cocaine. Studies have found that cocaine-exposed babies are generally smaller than other newborns and are more likely to suffer neurological or behavioral problems.

By some estimates, as many as 375,000 babies a year are born to users of illicit drugs.

In recent years, to scare pregnant women away from drug use, prosecutors in several states have begun to order the arrests of women whose newborns tested positive for drugs.The arrests have taken place in 24 states, but most have been in Florida and South Carolina.

Most defendants have pleaded guilty. But of the 19 cases in which women challenged the prosecution, Ms. Johnson was the only defendant to be convicted. In July 1989, she was found guilty of two counts of drug delivery and sentenced to 15 years' probation.

That conviction was upheld in April 1991 by the Florida 5th District Court of Appeals, over the dissent of a judge who noted that Ms. Johnson could have avoided "delivering" the drugs only by severing the umbilical cords, an act that could have killed her and her children.

The dissenting judge, Winifred J. Sharp, noted that the Florida Legislature had considered, and rejected, a specific provision authorizing criminal penalties against mothers for delivering drug-affected children.

The unanimous decision yesterday by seven judges of the state Supreme Court quoted that dissent extensively and ruled that the Florida Legislature had never intended "to use the word 'delivery' in the context of criminally prosecuting mothers for delivery of a controlled substance to a minor by way of the umbilical cord."

Ms. Johnson, who said she started using drugs at the age of 20, the year after her first child was born, is now in a residential drug-treatment program, Operation Par. Although she dropped out of earlier treatments, Ms. Johnson sounded confident that she would complete this 18-to-24-month program. Her four children live with relatives.

"I've been here almost three months," she said yesterday. "I'm going to graduate this time."

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