Newborn Drug Exposure Conviction a ‘Drastic’ First

As newborn Jessica Nicole Johnson gulped her first breath, she also took a hit of cocaine.

So ruled a Florida judge who earlier this month found that Jessica’s mother, a 23-year-old cocaine addict, passed the drug to her infant through the most intimate of channels--the umbilical cord.

The first U.S. criminal conviction of a mother who has given birth to a drug-exposed baby threads a legal needle, focusing on the 60 seconds immediately after birth when infants are physically separate from their mother but still attached by the umbilical lifeline.

Judge O. H. Eaton’s ruling that Jennifer Johnson was guilty of delivering cocaine to Jessica has been hailed in some quarters as a new and legitimate tool to protect the unborn and attacked in others as an unconstitutional affront that makes pregnancy a crime for drug addicts.

Both sides agree, however, that with an estimated 375,000 infants tainted by potentially fatal narcotics in the womb each year, the trend toward such prosecutions will increase.

“Arresting a mother for delivering cocaine to her unborn child may be considered drastic and extreme,” Florida Gov. Bob Martinez said in a July 20 speech, “but it is only a matter of time before every state in the nation feels the need to take drastic steps such as those we’ve taken.”

The landmark conviction came less than two weeks after the U.S. Supreme Court upheld a Missouri law that restricts abortions and amid Martinez’s Florida campaign to make the procedure illegal.

“The hysteria associated with the abortion question permeated this case,” said Johnson’s attorney James Sweeting, who argued that it is medically impossible to determine whether the drugs were passed to the infants after birth or before, when as fetuses they had no legal rights. “The politicians and prosecutors here are trying to out-conservative each other.”

Lynn Paltrow, staff counsel of the ACLU’s Reproductive Freedom Project, called the decision an “absurd” attempt to turn the fetus into a person under the law. The ACLU plans to assist Sweeting in an appeal.

“Not only will the conviction drive the women who need prenatal care the most away from treatment, but it is wrong because it takes a set of laws intended to be used in one set of circumstances, the prosecution of drug dealers, and applies them to another set,” Paltrow said.

But the trial judge, who invited an appellate court review of his ruling, contends the ACLU has missed the point.

Judge Offers View

“The prosecution here has been an effort to establish that pregnant women have a responsibility to their unborn children,” Eaton said in an interview. “I think that’s true. I cannot imagine why the ACLU feels sympathetic for mothers who transfer cocaine to their babies.”

Ironically, Johnson was arrested, in part, because she sought treatment before Jessica’s healthy birth on Jan. 23.

Johnson, who is now in a residential drug rehabilitation center that she entered in May as a condition of her release from jail before trial, was denied admission to an out-patient drug program last fall. Officials feared potential liability if her fetus did not survive the stress of withdrawal, according to testimony.

In addition, Johnson summoned paramedics twice last December and told emergency room doctors that she was a crack cocaine addict who feared for her fetus. Each time, according to testimony, she was sent home.

“What Jennifer did wrong was try to get help,” Sweeting said. “She created a paper trail that the prosecution used against her. She made a lot of statements about her addiction that came back to haunt us.”

Suspected Child Abuse

Johnson’s case, reported to police by social service officials when Jessica tested positive for drugs after birth, arrived on the desk of Seminole County Assistant State’s Atty. Jeff Deen as a suspected child abuse report last March.

Coincidentally, Deen said he had been researching state laws since November for an avenue to prosecute a growing number of drug-addicted mothers. He decided that he could fashion charges from a law barring “delivery” of controlled substances to a minor by arguing that narcotics could be “delivered” from mother to child through the umbilical cord.

Deen said he acted in alarm over a growing number of cocaine-exposed babies in the largely rural county just north of metropolitan Orlando.

State officials estimate that 10,000 drug-exposed babies will be born throughout Florida this year, quadruple last year’s 2,512 reports. In the social service region that includes Orlando and Seminole County, 57 drug babies were reported in the first three months of 1989, compared to 97 in all of 1988.

“We were seeing more and more of these cases. The question was, were we going to do something or not? We were looking for a good test.”

Case Leaps Forward

Johnson’s case leaped forward from among a handful under investigation.

“She had two cocaine babies already,” the prosecutor said. “We had to say to ourselves, ‘Are we going to let Jennifer go on?’ It was pretty clear she was either going to die or have another cocaine baby.”

By charging Johnson and winning a conviction, Deen said: “We cracked a barrier. Right now this is novel, but we want this to be a routine tool. Do I envision (a case) where a woman would go to jail? Yes.”

Johnson, who has not yet been sentenced on the felony conviction, faces up to 30 years in prison.

Johnson herself agrees that pregnant addicts should be held responsible for the well-being of their unborn children. But she believes that expanded and possibly mandatory drug treatment, not prosecution, is the best answer.

‘Started With Me’

“I don’t think women should be found guilty, but they should be accountable,” she said in an interview. “If people are not held accountable for what they do, how do they ever get a grip on the problem? I guess they started with me.”

Johnson, who grew up in a well-kept cinder block house on the fringe of an all-black and desperately poor hollow, was schooled in the Scriptures by a devoutly religious mother. In the rutted dirt streets surrounding her neighborhood, however, crack was the major industry and recreation, and Johnson succumbed soon after graduation from high school. She married a drug dealer at 20 and, by the time she was arrested, had four children and a $500-a-day habit.

“During the first two years, I chose to do drugs,” Johnson said. “I liked getting high. But the last two years, I couldn’t help myself. I tried to stay clean every day, but there was always drugs around.”

She said she did no drugs during her first pregnancy but will not discuss the second. She admits her addiction during the last two. None of the children, now in the care of Johnson’s mother and aunt, show signs of drug impairment, according to testimony.

“I knew that it was wrong, but I wasn’t fully aware of the damage that I could have done,” said Johnson, who hopes that she will be given a lengthy probation rather than a jail term. “I knew I couldn’t take care of my children. I’m an addict, but now I’m doing something about it. I don’t want to be the person I was four months ago.”