Mallory Loyola became the first pregnant woman to be arrested and charged with assault on her fetus under Tennessee’s new controversial law criminalizing the illegal use of drugs during pregnancy. Loyola was arrested July 8, 2014, one week after the law went into effect. The 26-year-old tested positive for methamphetamine (not technically a narcotic) before being released on bail. If convicted Loyola could be incarcerated for up to a year.

According to the new law, “a woman may be prosecuted for assault for the illegal use of a narcotic drug while pregnant, if her child is born addicted to or harmed by the narcotic drug.” If a woman does not enroll in a treatment program for the narcotic, she would be charged. According to RH Reality Check, a reproductive health news group, “the law was promoted by prosecutors against the recommendations of medical professionals.” Governor Bill Haslam says that the legislation is intended to encourage women to go to treatment centers; however, the effect of the bill may be different from its intended purpose.

Outcomes of Criminalizing Pregnancy

Imani Gandy of RH Reality Check suggests that Black women will be targeted by the law’s enforcement at a disproportionate rate. Based on ugly stereotypes with roots in Reagan-era “crack baby” rhetoric, more scrutiny would be placed on pregnant Black women, Gandy says. Whether or not these prejudices are acted on, there is a structural problem for disadvantaged, minority women.

State Senator Mike Bell explained that in his rural district “there’s no treatment facility for these women there, and it would be a substantial drive for a woman caught in one of these situations to go to an approved treatment facility. Looking at the map of the state, there are several areas where this is going to be a problem.” Healthy and Free Tennessee notes that the state has 177 addiction treatment facilities; yet only two “provide prenatal care on site and allow older children to stay with their mothers, and only 19 provide any addiction care for pregnant women.” For impoverished women, accessing and enrolling in treatment centers will be extremely difficult, if not impossible.

There is a discrepancy between the intention of the bill, as suggested by Haslam, and the likely effect of the bill. While it may have been passed to incentivize enrollment in treatment programs, it will likely result in the incarceration of women who cannot access those treatment centers. Because Tennessee did not expand Medicaid under the Affordable Care Act, the costs of such treatment may be overwhelming. Women who know that they cannot access addiction services will be discouraged from seeking help, lest they be charged with assault and have their children taken away.

Other Approaches 

In response to prenatal substance abuse, Tennessee passed the Safe Harbor Act about a year ago. The 2013 legislation, also signed by Haslam, was designed to ensure that women can access treatment centers without fear of incarceration or having their children removed. The more recent bill not only negates the benefits of the Safe Harbor Act, but regresses Tennessee even further.

This heavy-handed approach to prenatal substance abuse hints at another discrepancy: addiction is viewed by some as a disease, and by others as a crime. While the state and the governor embrace the latter with the passage and enforcement of this law, the federal government has taken a different approach.

Michael Botticelli, acting director of the White House Office of National Drug Control Policy, spoke about the federal government’s broad strategy in response to the recent Tennessee law: “Under the Obama administration, we’ve really tried to reframe drug policy not as a crime but as a public health-related issue, and that our response on the national level is that we not criminalize addiction.” The politics of considering substance abuse a criminal offense rather than a disease is amplified by the politics of federal-state relationships.

Support for the Law

The Tennessee Medical Association was supportive of the Safe Harbor Act, yet its president, Dr. Doug Springer, recently spoke out in favor of the new law. “The misdemeanor means it can be expunged by a judge, it means that the [Department of Human Services] doesn’t take your baby away. It has nothing to do with an application for a job because it doesn’t interfere with your job prospects, and that’s really important,” says Dr. Springer. Obviously, if a mother is incarcerated, she and her baby could not be together. But if the law makes it easy for the offense to be expunged, incarcerated mothers may not have to go through as many obstacles as other ex-convicts.

Because the law is so new, Mallory Loyola’s outcome will set precedent. The law is set to expire after two years, at which time Tennessee will evaluate its effects.

—

Jake Ephros (@JakeEphros)

Featured image courtesy of [Greyerbaby via Pixabay]

Jake Ephros

Jake Ephros is a native of Montclair, New Jersey where he volunteered for political campaigns from a young age. He studies Political Science, Economics, and Philosophy at American University and looks forward to a career built around political activism, through journalism, organizing, or the government. Contact Jake at staff@LawStreetMedia.com.

The post First Pregnant Woman Arrested Under Controversial Tennessee Law appeared first on Law Street.

With barbed wire fences, armed-guard towers, extensive searching by guards, and locked rooms, prisons seem to be a place almost completely cut off from the world. Few would think marijuana, cocaine, heroin, and OxyContin are commonplace behind prison walls. The War on Drugs has led to nearly half of federal inmates being sentenced for drug crimes. If illegal drugs can easily be found behind bars in the most controlled of environments, what can be done to prevent substance abuse by inmates?

What are the statistics on drug use inside prisons?

Prisons seem to be the last place one would think to find drugs, yet prevalent gang activity and dependency on drugs has created a thriving black market. Drug use in prisons has become more relevant due to increasing calls for improved substance abuse treatment for inmates. According to CASA Columbia, 65 percent of inmates in 2010 met the criteria for substance abuse or addiction. Those who suffer from addiction and committed crimes relating to drugs or alcohol make up 85 percent of the nation’s prison population. A large segment of the prison population has been affected by drugs and alcohol prior to incarceration, but prison walls have not been a barrier to these substances.

Reliable statistics on drug use in prisons are difficult to attain. The frequency of drug testing is not standardized across facilities and can be random or can be issued with reasonable suspicion to specific inmates. Furthermore, prisoners have no reason to confess to using, and officials in prisons do not want to report unfavorable statistics. Technology has helped those behind bars to coordinate their drug trade while locked up. Cell phones allow inmates to track drugs via satellite and can even allow access to mobile banking. The prevalence of cell phones in prisons indicates the ease of obtaining contraband and the method for obtaining drugs.

The case of California

• Roughly 1,000 seizures of drugs are reported in California prisons each year.
• From 2006-2008, 44 of California’s inmates died from drug overdoses.
• From 2008-2009, California officers seized the highest amount of drugs in decades: 2,832 grams of marijuana and 92 grams of cocaine.
• In June 2013, 23 percent of California’s inmates tested positive for illegal substances and another 30 percent refused to be tested.
• In 2013, California alone confiscated over 12,000 cell phones from their prisons.
• More than 4,000 drug-related incidents were reported in California prisons in 2013.

These are far from the rates of drug usage outside of prison, but they still have strong implications. It is important to note that drug testing is often conducted by urine analysis, which will only detect drug use from the past several days. In contrast, testing hair can detect drug use from the past 90 days. In response to testing, drug use in prison often involves drugs that are harder to detect, such as heroin or prescription drugs.

How are drugs smuggled inside the prison?

From the Outside

Reports from the Washington Times and The Economist showed the limitless creativity exhibited by inmates to get contraband through extensive security. In some cases, drugs are thrown over prison walls in a ball or package. Some prisons do not scan all mail, so drugs can be delivered through mail and even on the backs of stamps. Oftentimes visitors may bring in drugs by “plugging” their body cavities or hiding drugs in a baby’s diaper. The drugs are then given to an inmate by way of a kiss, dropped in a shared can of soda, or food. Some inmates’ work detail, such as receiving deliveries, allow them greater privileges and more opportunities to bring in drugs.

From Staff

By the admission of those who work inside prisons, the most likely smuggling culprits are staff members themselves. Staff are searched before entering the facility but sometimes they are not as thoroughly searched as visitors. Staff have brought in drugs on their person or even hidden in their food. Some staff members do it for money to supplement their modest salary. Others are young and easily manipulated by seemingly friendly inmates. In April 2013, 13 correctional officers in Maryland were indicted for aiding the Black Guerrilla Family, a national prison gang thriving in Baltimore. The guards allegedly smuggled in cell phones, drugs, and other contraband on their person and in food. One indicted guard was reported to have made $3000-$5000 dollars a week for smuggling contraband to one inmate. Once guards are involved, drug use by inmates often goes overlooked.  ­­

The Market

Numerous inmates have verified drugs are as available in prisons as they are on the street, but not in the form of a cash market. Prisoners typically trade by using tobacco or items bought from commissary. Prisoners claim drugs inside a prison sell for more than 4 times the legal price outside prison walls. In an interview with The Fix, one anonymous prisoner claimed, “You can get whatever you want in here. Marijuana, heroin, whatever. They had oxy-80s on the pound for $160 each. It’s way more expensive than on the street, but if you got the money you can buy them… The sad thing about it all is, they lock you up for drugs and they can’t even keep the drugs out of the prison.” The shocking video below, made by inmates in Orleans Parish Prison, shows drugs, alcohol, guns, and gambling – all within prison walls:

What are the consequences of drug smuggling?

Consequences of drug smuggling vary. Drug use in prisons can pose security problems, escalate violence, lead to disputes regarding debts owed, and increase health and overdose concerns. Anyone bringing drugs into prison can be prosecuted, and inmates face write-ups and revoked privileges.

New York

In New York, if an inmate is caught with drugs or has tested positive, he is sent to solitary confinement for up to 3 months for his first offense. Prisoners in solitary are prohibited from any treatment programs they may have been in and those on the waiting list for treatment are removed from the list. Between 2005 and 2007, New York sentenced inmates to a collective 2,561 years in solitary from drug-related charges. Time in solitary confinement has negative emotional and physical consequences on inmates, who are potentially more vulnerable to using once they are released in the general population. These inmates are often sentenced to longer prison time with probation revoked or delayed and visiting privileges suspended.

California

Recently the California Department of Corrections and Rehabilitation proposed a plan where those who test positive for drug use will lose 90 days of pay from their work assignments, though inmates make only 8 to 32 cents per hour of work.

What do prisons do to treat drug addiction?

Access to Programs

Some inmates may not want substance abuse treatment. But for those who do, a 2011 report by the Government Accountability Office showed that while 31,803 inmates were enrolled in basic drug education programs, more than 51,000 inmates were on waiting lists for periods up to 3 months. Prison overcrowding, with federal prisons operating at 40 percent above capacity, has meant limited access to these programs. A 2010 CASA Columbia report showed only 11 percent of inmates with substance abuse and addiction disorders receive any treatment during their incarcerations.

Programs

Different facilities offer different programs to treat drug abuse. Federal inmates have access to residential programs, transitional programs, nonresidential programs, and drug education programs. Other treatment programs vary by state. Tight budgets have forced states such as Kansas and Pennsylvania to cut treatment programs inside prisons and instead divert offenders to less expensive treatment programs outside of prison. Some claim that prisons should be focused on punishment rather than rehabilitation. Others argue that prison is the best chance to treat those with substance abuse problems to help prevent future crimes, but oftentimes this opportunity goes unused.

Medical Treatment in Prison

Treating an addiction like heroin or opioids can require Methadone or Buprenorphine to help with withdrawal symptoms. However, a drug like Methadone requires strict regulation and is expensive for correctional facilities in the short run. Allowing Methadone in prisons means it may be  sold on the black market and could even lead to inmates robbing the dispensary. Only half of states provide these treatment drugs even though both are listed by the World Health Organization as drugs that should be available to prisoners at all times.

Cost Effectiveness

Human Rights Watch has reported that for every $1 spent on substance abuse programs, states save $2-$6 dollars in the long run from reduced recidivism rates. One study found that for each inmate who remained sober, employed, and crime-free, the United States would save $91,000 per year. There is a great demand for substance abuse rehabilitation programs which can lead to early release and save government money. Watch this video for more information on the benefit of substance abuse programs in prison:

What else can be done to prevent drug use in prisons?

Many consider the Pennsylvania plan to limit inmate access to illicit drugs among the most successful. The Pennsylvania Department of Corrections instituted a zero-tolerance policy after facing increasing drug usage in its prisons. The plan called for:

• Criminal prosecution of inmates caught with drugs
• Increased surveillance of inmates and visitors
• Increased visits by drug-detecting dogs
• Greater number of cell searches
• Improved technology in detection and scanning systems
• Random monitoring of phone calls
• Drug testing by hair rather than solely by urine analysis
• Revoked visiting privileges for offenders

In 1996, 7.8 percent of Pennsylvania inmates whose hair was tested showed illicit drug usage in the past 90 days. With the addition of the measures above, only 1.4 percent of inmates tested positive two years later. Along with the falling rates of drug use, assaults on inmates decreased 70 percent and assaults on staff decreased 57 percent.

Many states have looked to follow Pennsylvania’s example. However, many of the strategies in prisons are not replicated in more lax county jails. Furthermore, once inmates leave prisons, they enter less strict programs or probation where drugs are easy to obtain. Limiting drug use in prisons makes little sense if inmates do not have treatment and are overwhelmed by the availability of illegal drugs once they are no longer behind bars.

Critics have taken issue with the level of strictness required to eradicate drug use in prisons. Prisons could always be made worse. States could require inmates to spend more time locked in their rooms, have less free time in the yard, and have very closely-monitored visits. The question becomes at what cost should prisons seek to be drug-free. Many facilities simply do not have the staff to better supervise the amount of visits they receive. Accommodative visiting policies are aimed at making family visits easier since contact with family is integral to an inmate’s success after prison.

Balancing what prisons can actually achieve with their limited staff, funding, and how they can best keep contraband outside without completely dehumanizing inmates remains a complicated act. Stronger substance abuse programs may be necessary to prevent drug use, but completely eliminating the supply of drugs could be a game of hide and seek that will never end.

Resources

Primary

US Code 1791: Providing or Possessing Contraband in Prison

US Code 14052: Enhanced Penalties for Illegal Drug Use in Federal Prisons

NCJRS: Reducing Drug Use in Prisons: Pennsylvania’s Approach

Additional

Nation’s Health: Report Finds Most U.S. Inmates Suffer From Substance Abuse

CASA: Behind Bars II: Substance Abuse and America’s Prison Population

Economist: Drugs in Prisons: Supply and Remand

Washington Times: Drugs Inside Prison Walls

Newsweek: The Case for Treating Drug Addicts in Prison

Daily Beast: With Cigarettes Banned in Most Prisons, Gangs Shift

Hills Treatment Center: Drug Rehab Programs in Jail and Prison

Syracuse: Prison and Drugs: State Often Denies Help

USA Today: Prisoners Face Long Wait for Drug-Rehab Services

The Fix: Drug Treatment in Prison

Columbus Dispatch: Drug Use in Ohio’s Prisons Spiked

CBS: California Prisons Find 1 in 4 Inmates Used Drugs

Alexandra Stembaugh

Alexandra Stembaugh graduated from the University of Notre Dame studying Economics and English. She plans to go on to law school in the future. Her interests include economic policy, criminal justice, and political dramas. Contact Alexandra at staff@LawStreetMedia.com.

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