Md. endangerment law challenged

Court hears appeals of women convicted after babies born with drugs in systems


Lawyers for two Talbot County women convicted of reckless endangerment after their babies were born with cocaine in their systems argued before Maryland's highest court yesterday that using criminal law to regulate the conduct of pregnant women is unconstitutional and potentially harmful to both mother and child.

The state held in both cases that the women, Kelly Lynn Cruz and Regina Kilmon, had violated Maryland's reckless endangerment statute, and that the prosecutions were a tool for protecting children. But Assistant Attorney General Mary Ann Ince had little chance to defend that position because of questioning by Court of Appeals judges.

"Let me start you off with a question: How about the man?" Judge Dale R. Cathell asked as Ince rose to speak in Kilmon's case. If a man has unprotected sex with a crack addict and knows she might get pregnant, the judge said, "Are you going to arrest him? My next question is, why not?"

Judge Irma S. Raker said she was "tremendously" concerned about the issue of jurisdiction. "Where is it stated that the ingestion of cocaine took place in Talbot County, Maryland?" she said. "That cocaine could have been ingested anywhere."

Over the past three years, Talbot County prosecutors charged mothers with endangering the lives of their newborn children by using drugs while pregnant in at least six cases -- including those of Kilmon and Cruz.

Kilmon pleaded guilty to reckless endangerment in January 2005 and was sentenced to four years in prison before filing an appeal. Cruz was convicted in August and sentenced to 2 1/2 years in state prison. She is out on parole, according to David Rocah, an attorney with the American Civil Liberties Union of Maryland, which represented Cruz in Circuit Court and at yesterday's hearing, where it asked for a reversal of the criminal conviction.

Legal observers say Talbot County appears to be the only jurisdiction in Maryland, and one of just a few places nationwide, where police and prosecutors send mothers to prison because their babies have drugs in their systems. Similar attempts to criminalize drug abuse by pregnant women became common in the United States during the 1980s and early 1990s, when crack use soared, but the courts struck down criminal convictions in dozens of cases as unconstitutional or beyond lawmakers' intent.

"There's a comprehensive state system for dealing with what is a genuine social problem, and the Talbot County state's attorney has chosen to completely disregard that and to disregard the repeated and considered judgment of the state legislature," Rocah said before the hearing. "To turn pregnancy and childbirth into a crime means that pregnant women facing drug addiction won't get the prenatal care they need, they won't go to hospital to give birth ... and they may be pushed to choose abortion."

Ince declined to comment on the cases outside the courtroom.

The judges appeared interested yesterday in arguments proffered by Cruz's lawyer, Beth Brinkmann, on behalf of the ACLU, and Kilmon's public defender, Nancy Forster, about the seemingly limitless nature of the state's interpretation of the statute.

Under the state's reading, Forster said, pregnant women could be arrested for anything from speeding to drinking alcohol.

"If the statute is construed the way you're suggesting, couldn't it cover failing to wear a seat belt and all those other things?" asked Judge Alan M. Wilner. "Does the reckless endangerment statute include any foolish or reckless thing a woman does for the whole nine months?"

"Reckless endangerment is the crime," Ince responded. "It does not require an illegal act."

Lawyers for Cruz and Kilmon also argued that if the mothers ingested cocaine while pregnant, they couldn't be accused of endangering children. The legislature clearly did not intend the reckless endangerment statute to apply to fetuses, they said.

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