South Carolina

First in the Nation for Arresting African-American Pregnant Women -
Last in the Nation for Funding Drug and Alcohol Treatment

Narrative

As a young woman, Paula was raped by her uncle. She reported it to the police and he was convicted. Paula, however, never received counseling for the trauma she experienced. Like other women with histories of childhood rape and sexual abuse, she turned to drugs to quell the repeated nightmares and the ongoing terror she experienced. She knew of no place to get help.

When she became pregnant as a result of the rape, she went to the only hospital she knew would take her - the Medical University of South Carolina. At MUSC no one bothered to link her with an appropriate drug treatment program or a trauma institute; none existed for women like her. Instead, the hospital secretly searched her for evidence of drug use and turned her over to the police. She along with 28 other African-American women were arrested; dragged out of the hospital in chains and shackles, evoking modern images of slavery. Only one white woman was arrested. The white nurse who helped create and carried out the program wrote in the patient's records: patient "lives with her boyfriend who is a Negro."^[1]

Problem

South Carolina treats health problems that women experience during pregnancy as crimes and has adopted policies that ensure that people of color are disproportionately imprisoned, punished, and deterred from access to meaningful health and educational services. Specifically, the state targets low-income African-American women and their families for illegal searches, criminal prosecution, and child welfare interventions. (It is important to note that the prosecutions of pregnant women are the result of judicial activism not legislative decision-making).

Background

In 1989 the Medical University Hospital in SC instituted a policy of secretly searching, through urine drug screens, pregnant patients for cocaine use and if positive turning the records and then the patients over to the police and the prosecutors office. This uniquely punitive state policy was first introduced and applied to African-American women.^[2]

As local solicitor, Charles Condon implemented the policy claiming that women were first offered treatment when in fact many were offered no treatment at all and to this day the state fails to provide the treatment most drug users need and want. Mr. Condon analogized the women to mules who needed to be motivated by sticks and carrots. While Attorney General, he staunchly defended both the state's policy of flying the confederate flag and of treating pregnant women with drug problems as criminal child abusers. Ten women challenged the MUSC policy and the US Supreme Court held that the secret searches of the African-American women violated the Fourth Amendment.^[3] The arrests of pregnant women, - most African-American - however, continue.

In 1997, in Whitner v. SC, the State Supreme Court adopted his arguments and extended the state's child abuse laws to include viable unborn children, making it a crime for a pregnant women to even "risk" harm to a fetus.^[4] Cornelia Whitner, an African-American woman with a drug problem but who gave birth to a healthy baby, was convicted of "child" abuse. At sentencing Ms. Whitner begged for in-patient treatment; the court responded, "I think I'll just let her go to jail" and sentenced to her to 8 years in prison.

In 2001, Regina McKnight, also African-American, became the first woman in U.S. history to be convicted of homicide by child abuse (20-life) based on the fact that she suffered a stillbirth. This pregnancy loss was blamed on her drug use.^[5] Leading national health organizations and experts have reviewed the case and all agree that there is no evidence that drug use caused the stillbirth.^[6] Regina McKnight would be out of jail by now if she had intentionally tried to end the pregnancy - she would have gotten two years in jail for an illegal abortion. But Ms. McKnight - a woman who all agreed had absolutely no intention of losing the pregnancy - is called a murderer by the State of South Carolina.

South Carolina's policies deter women from seeking prenatal care and drug treatment for fear of arrest or child welfare interventions. This care can protect both the women and their future children. That is why every leading medical group in the state and nation to address the issue - including the American Medical Association and the South Carolina Medical Association - oppose the state's policies. Nevertheless, health care providers have been enlisted as agents of the police - and numerous hospitals target African-American patients for testing and reporting based on seemingly neutral criteria. The years following the Whitner decision coincide with an increase in infant mortality.^[7] South Carolina has one of the highest infant mortality rates in the nation,^[8] African-American babies in the state are more than twice as likely to die during the first year of life as white babies are,^[9] and significantly fewer African-American Women receive adequate prenatal care when compared to pregnant white women.^[10] Participation by both African-American men and women in drug treatment has decreased considerably,^[11] while people populating the state's prisons on drug charges are overwhelmingly and disproportionately African-American.^[12] This is true despite the fact that people of all races use illegal drugs at comparable rates.^[13]

The Solution

Reverse state policies of punishing and scapegoating African-American women and families; protect doctor patient confidentiality, fund desperately needed drug treatment and mental health services.

Despite the enormous costs associated with arrest, prosecution, and imprisonment, as well as millions spent to defend the illegal searches of African-American women seeking health care in the state, South Carolina has chosen to be first among the states for arresting pregnant women, first for presuming parental neglect based on one unconfirmed positive drug test,^[14] and last for funding the drug and alcohol treatment services women and families desperately need.

South Carolina spends fewer state dollars on drug treatment than any other state in the country.^[15] In 2000, the state was only able to treat approximately 52,000 of the 310,000 South Carolinians identified as having substance abuse problems.^[16] South Carolina however ranks first in its spending in percent of justice dollars spent on corrections. South Carolina spends 48 percent of its total justice system expenditures on imprisonment - more than any other state in the nation.^[17]

Decades of research have established that a variety of treatment methods are successful for people who are addicted to alcohol and other drugs. Drug treatment costs less money than imprisonment, is effective, and is not destructive to families and children. According to the Bureau of Justice Statistics, the cost of effective treatment ranges from $1,800 to $6,800 per year while the national average cost of incarceration is over three times as much - $20, 805 per year,^[18] excluding such additional costs as foster care, probation, parole, and prison building.

Drug treatment, especially comprehensive family rehabilitation programs that do not force mothers to be separated from any of their children, work and are cost effective.^[19] A review of all types of drug treatment in the state concluded that South Carolina's "women, and pregnant women in particular, remain underserved."^[20] Former Attorney General Condon, who has been the chief architect of the State's policy of punishment, put these policies in place despite admitting that: "A wide array of treatment services are desperately needed in every community in the state."^[21]

Proposals to create more treatment and to favor treatment over punishment will appeal to a majority of South Carolina Voters.

In October of 2002, Global Strategy Group, Inc. conducted a statewide survey of 600 registered South Carolina voters on issues of importance to South Carolina families for the National Advocates for Pregnant Women. Survey questions probed voters' perceptions of a range of topics including drug use, drug treatment, and pregnancy in South Carolina. The survey found that South Carolinians across party lines prefer treatment to costly punishment. The outcry in response to the recent events at Goose Creek where school students, a disproportionate number of whom were African-American, where held at gunpoint by police searching the school for non-existent drugs suggests increasing local opposition to punitive, drug war approaches.^[22]

• South Carolinians believe drug use is a serious problem facing their state and are looking to their leaders to develop effective measures to combat the problem of addiction.
• Voters, however, are skeptical of conventional, punitive measures used to address the problem of drug use. A majority of South Carolina voters believe that the war on drugs has been ineffective (52 percent) in reducing illegal drug use in South Carolina.
• Voters look to treatment as a more effective means of addressing the issue of drug use than prison. Seven in ten South Carolina voters (71 percent) believe that the best way to attack the problem of drug use is to help addicts and users get treatment compared to 23 percent who believe users should be put behind bars.
• Voters understand the efficacy of treatment in fighting drug addiction and ensuring the health and well-being of South Carolina's families. When asked how local government should respond to the issue of women who are pregnant and using illegal drugs, voters are three times more likely to opt for treatment than jail time. Seventy percent also believe that tax dollars spent on building prisons could be better spent increasing the number of drug treatment programs available to pregnant women.
• Unfortunately, treatment is hard to come by, and South Carolina voters recognize the need for more drug treatment centers throughout the state. Half of South Carolina voters (50 percent) believe the state does not have enough alcohol and drug treatment centers.
• Voters stand behind their commitment to drug treatment programs and would be willing to pay to expand the availability of drug treatment centers in South Carolina. Fifty-three percent of voters say they would be willing to pay an additional $100 in state taxes to expand the availability of treatment, including two in ten (20 percent) who would be very willing.

153 waverly place, 6th floor * New York, NY *10014, Phone: 212-255-9252
napw1@AOL.com, www.advocatesforpregnantwomen.org

Footnotes

1. Plaintiff's Exhibit 119, Ferguson et al. v. City of Charleston et al., U.S. District Court for the District of South Carolina, Charleston Division, C/A No. 2:93-2624-1.
2. Ferguson v. City of Charleston, South Carolina, 532 U.S. 67 (2001); Philip H. Jos, Marshall Jos, and Martin Perlmutter, The Charleston Policy on Cocaine Use During Pregnancy: A Cautionary Tale, Journal of Law Medicine and Ethics, 23 (1995) 120-128.
3. Ferguson v. City of Charleston, 532 U.S. 67 (2001).
4. South Carolina v. Whitner, 429 S.E.2d 777 (S.C. 1997) cert. denied, 118 S.Ct. 1857 (1998).
5. State v. McKnight, 575 S.E.2d 168 (2003), cert denied, McKnight v. South Carolina, 2003 WL 21313734, 71 USLW 3759, 72 USLW 3210, 72 USLW 3235 (Oct. 6, 2003); Bob Herbert, In America, Stillborn Justice, New York Times, Op ed, (May 24 2001).
6. "As a matter of science, the evidence presented at trial does not even plausibly suggest - much less prove beyond a reasonable doubt - that Ms. McKnight's ingestion of cocaine caused the stillbirth of her fetus.' Brief Amici Curiae of the South Carolina Medical Association, the South Carolina Association of Alcoholism and Drug Abuse Counselors, the Association of Maternal Child Health Programs et al, filed in support of Appellant, Regina McKnight, South Carolina Supreme Court. See also Brief Amici Curiae of the American Public Health Association, American Nurses Association, American Psychiatric Association, National Stillbirth Society, South Carolina Medical Association, et. al. in support of Petitioner, on Petition for Writ of Certiorari to the Supreme Court of South Carolina, US Supreme Court, No 02-1741 at 3 ("[T]he factual record and current state of medical science wholly fail to support any claim that Ms. McKnight's stillbirth was caused by the ingestion of cocaine.").
7. See Infant Mortality on Rise in '97, Post & Courier (Charleston, S.C.), Feb. 19, 1999 3 , at B1; See The Annie E. Casey Foundation, Kids Count Data Book 160 (2001), http://www.aecf.org/kidscount/kc2001(reporting that infant mortality decreased from 11.7 in 1990 to 8.4 in 1996, but increased to 9.6 for 1997 and 1998, the two years following the Whitner decision).
8. Depending on the source, South Carolina ranks between the worst and the third worse state in the country for infant mortality and other perinatal health indicators. According to the Children's Defense fund, South Carolina ranks 50th among states in infant mortality. Children's Defense Fund, Children in South Carolina, Updated Children in the States 2003. According to the March of Dimes, South Carolina ranks 48th among the states for infant mortality, March of Dimes Perinatal Profiles, 2003, South Carolina at 5. According to the Kids Count 2003 Data Book On line, South Carolina ranks 47th for percent of low-birthweight babies.
9. Cindy Landrum, Infant deaths prompt education for parents, The Greenville News, May 24, 2002 ("According to a report done by Kids Count, a private nonprofit foundation that studies issues facing children, South Carolina has the highest infant mortality rate in the nation, and African-American babies in the state are more than twice as likely to die during the first year of life as white babies are." http://greenvilleonline.com/news/2002/05/24/2002052423793.htm
10. Only 62.4 percent of pregnant black women receive adequate prenatal care compared to 79.0 percent of pregnant white women. unitedhealthfoundation.org/shr2003/states/South Carolina.html
11. Heidi Bramson, Review of data, 1996-2002, provided by the South Carolina Department of Alcohol and Other Drug Abuse Services, on file with NAPW.
12. In South Carolina, with a black population of 30%, 86% of the drug offenders in prison are African-Americans. Human Rights Watch, Punishment and Prejudice: Race Disparities in the War on Drugs, Table 13. Ranking of States by Percentage of Black Drug Offenders Admitted to State Prison. http://www.hrw.org/reports/2000.
13. Ernest Drucker, Ph.D., Drug Prohibition and Public Health, 25 Years of Evidence, 114 Pub. Health Rep. 14, 23 (Jan.-Feb. 1999) ("A common stereotype, fostered by the media, is that some ëracial' or ethnic groups use drugs more than others. This is not borne out by the data.").
14. In South Carolina, a newborn child is presumed to be neglected and "cannot be protected from further harm without being removed from the custody of the mother" if there is a single unconfirmed positive toxicology test of either the mother or the child at birth that indicates the presence of any amount of controlled substance not medically prescribed. S.C. Code Ann. ß 20-7-736 (Law. Co-op. 1998). South Carolina is one of only three states to create unconfirmed evidence of one time drug use as a basis for presuming maternal neglect. See Lynn M. Paltrow, David S. Cohen & Corinne A. Carey, Year 2000 Overview: Governmental Responses to Pregnant Women Who Use Alcohol and Other Drugs (2000). This report is available at .
15. Kim Baca, South Carolina spends the least on substance abuse prevention, Associated Press State & Local Wire (Jan. 29, 2001).
16. Id.
17. Drug Strategies, South Carolina Profile 18 (1998)
18. National Center on Addiction and Substance Abuse, Shoveling Up: The Impact of Substance Abuse on State Budgets 80 (2001).
19. Embry M. Howell et al., A Review of Recent Findings on Substance Abuse Treatment for Pregnant Women, 16 J. Substance Abuse Treatment 195 (1999).
20. Drug Strategies, South Carolina Profile 12 (1998) (emphasis added).
21. Charles Condon, Attorney General, Whitner Implementation Plan, reprinted in, Lawrence J. Nelson & Mary Faith Marshall, Ethical and Legal Analysis of Three Coercive Policies Aimed at Substance Abuse by Pregnant Women, 185a, 9 (1998).
22. Tamar Lewin, Principal Who Invited Police to School for Drug Raid Resigns, New York Times, Jan. 7, 2004, B7.