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Legal Uncertainty, Political Disagreement Surrounds New Drug-Dependent Babies Law

The Tennessee House of Representatives sponsor of legislation targeting women for criminal prosecution who give birth to drug-dependent babies called the behavior of the first mother arrested under the new law “unconscionable.”

And Terri Lynn Weaver, R-Lancaster, told TNReport she’s certain the bill she guided to passage three months ago includes methamphetamine among the particular drugs she wants women brought up on assault charges for using if their newborns are found to have the substance in their blood. The initial case involves a 26-year-old Monroe County woman arrested for purportedly using meth just three or four days prior to her child’s birth.

“Meth is illegal,” Weaver told TNReport this week. She claims her legislation was intended to include all “illegal drugs.”

Under the terms of the new law, if a woman is “actively enrolled in an addiction recovery program before the child is born,” and successfully completes the program, she can use that as an “affirmative defense” to fight criminal charges against her, “regardless of whether the child was born addicted to or harmed by the narcotic drug.”

Meth an “Opiate”?

However, it is somewhat unclear as to whether the actual wording of the new law backs up an assumption that methamphetamine is covered under the law, which was sponsored in the Senate by Reginald Tate, a Memphis Democrat and chairman of the Shelby County Legislative Delegation.

Weaver’s comments herself on the floor of the Tennessee House back in April, when the bill was debated and ultimately passed, would seem to indicate that it does not.

The legislation that the General Assembly approved stipulates that women whose babies are found to have evidence of a “narcotic drug” in their systems are subject to prosecution. The law declares that the existing definition of “narcotic drug” in state law be used as the basis for prosecution.

Tennessee state law defines “narcotic drug” as opium, opiates, coca leaves or any compound, derivative or preparation of such substances. But while “opiate” is generally defined in medical or scientific terms as relating to or resembling opium or morphine — and that would include heroin —  the definition under Tennessee’s statute also alludes to any substance “being capable of conversion into a drug having addiction-forming or addiction-sustaining liability.”

Yet on the House floor back in April, Weaver declared repeatedly that her legislation “only deals with cocaine and heroin.” She never mentioned methamphetamine or any other banned substance.

Divisions in Both Parties

The Senate passed the legislation on a vote of 25-7 with no debate on April 7. The House passed it two days later, 64-30. Among those who voted against it in the Senate, all were Republicans — notably, Speaker Pro Tem Bo Watson of Hixon, Government Operations Chairman Mike Bell of Riceville, Stacey Campfield of Knoxville and Jim Summerville of Dickson — both of whom are in tough GOP primary fights — and Jim Tracy, who is challenging incumbent Republican Scott DesJarlais for his seat in the U.S. House of Representatives.

In the House, 19 votes were cast against the bill by Democrats and 11 by Republicans, including House Majority Leader Gerald McCormick of Chattanooga, Calendar and Rules Chairman Bill Dunn and Education Committee Chairman Harry Brooks, both of Knoxville.

The Republican speakers of both the House and the Senate, Nashville Rep. Beth Harwell and Lt. Gov. Ron Ramsey of Blountville, each voted in favor of the law.

Like the rest of the Senate Democratic Caucus, Thelma Harper of Nashville voted in favor of the law. And she’s being criticized for it by her primary-election opponent, former Tennessee Democratic Party communications director Brandon Puttbrese. “Nashville deserves a senator who will stand up for the women of Davidson County and who understands that jail is not a prescription for treating disease,” Puttbrese said in a press release in April urging Gov. Haslam to veto the legislation.

State Democratic Party executive director Roy Herron acknowledged back in May that addressing the problem of babies born harmed by drugs is “a terribly difficult issue.”

“There’s no question there are compelling needs to try to save children from these horrible additions, and there also doesn’t seem much question to me that there are terrible unintended consequences that possibly could happen,” Herron said.

Many Questions, More Debate Guaranteed 

During the House debate April 9, Rep. Sherry Jones, a Nashville Democrat, sparred with Weaver over whether the bill would require doctors to report women, and whether it could cause pregnant addicts to avoid necessary prenatal care.

Weaver argued that drug-abusing mothers aren’t worried about the health of their babies. “These ladies are not those who would consider prenatal care,” she said. “These are ladies who are strung out on heroin and cocaine, and their only next decision is how to get their next fix.”

Weaver also got pushback from fellow Republican Dunn, who said a potential consequence of the legislation might be to encourage addicted mothers to obtain abortions rather than face prosecution.

Additionally, Dunn raised concerns about added costs to law enforcement agencies to enforce the law and questioned why a criminal statute would include a “sunset provision” if there’s not some question about its soundness. Unless the Legislature decides otherwise, the law “shall cease to be effective July 1, 2016.”

“I’m not really sure what kind of Pandora’s box we’re opening up there,” Dunn said during the floor debate.

Weaver brushed off Dunn’s legal and fiscal concerns as well, saying they weren’t widely held in the state among judges and law enforcement. And the sunset provision is a proactive measure to ensure the Legislature takes the time to re-examine the law after seeing it in effect, she said.

Dunn told TNReport this week that he still has the same concerns about the law that he had when it passed. And in all likelihood, he said, it’ll be difficult or impossible for lawmakers to factually determine how many women purposely avoided doctors or aborted their pregnancies because of the law when it comes time to discuss it again as the sunset date approaches.

“The thing is, the numbers that we’re not going to be able to collect are the women who avoided health care treatment, the women who destroyed and got rid of the evidence — their baby — in order not to get prosecuted for it,” Dunn said.

Dunn’s concerns were to some degree also echoed this week by Weaver’s Democratic challenger for her House seat, Sarah Marie Smith of Carthage.

“It’s not a bill I would have voted for,” Smith told TNReport. “(Weaver) is not a physician. It’s a knee-jerk reaction kind of thing, this bill. It is not long-range and there isn’t critical thinking in it, and I don’t think she checked with the experts in the field about what this will do to a child.”

Sen. Hensley, M.D.: If Law Doesn’t Include Meth, It Ought To — And Maybe Booze & Cigarettes, Too

One lawmaker who is in support of the new law does happen to be a physician. And if anything, Hohenwald Republican Sen. Joey Hensley thinks the law ought to be expanded. Alcohol, and to a somewhat lesser degree, tobacco, are also substances the Legislature should consider prohibiting women from abusing — at least in such ways as clear harm comes to their babies because of it, said Hensley.

Hensley, who voted in favor of the Weaver-Tate law and still fully supports it, told TNReport he certainly thinks it ought to cover meth abuse by pregnant women. And he thought it did when he voted for it, he said. But he also indicated that unless the law is clear that methamphetamine or any other specific drug is unequivocally covered under the criminal statute’s wording, then it would be improper for law enforcement or other government authorities to be attempting to use it to punish women under their own broader interpretation.

He reiterated, though, that if it doesn’t cover meth now, then the law should be expanded so that it expressly does. “Certainly, using methamphetamine is just as harmful to a child as taking a narcotic, and maybe even more harmful,” Hensley said.

In related news, in East Tennessee’s federal courts a 27-year-old Dandridge woman was sentenced Tuesday to 12-and-a-half years in federal prison for making and using meth while pregnant.

Mark Engler contributed to this story.

TBI Indicts 7 in Conspiracy to Smuggle Drugs into Union Co. Jail

Press release from the Tennessee Bureau of Investigation; March 24, 2013:

Union County, Tenn. – The Tennessee Bureau of Investigation presented its case to the Union County grand jury this week which resulted in the indictments of seven individuals for providing drugs or assisting in the introduction of the drugs into the Union County Jail.

Union County Jail inmates provided information to jail officials that drugs were illegally provided to an inmate in the jail who later died at Tennova Hospital in Knoxville. An autopsy performed on the deceased inmate failed to determine that the drugs were the cause of death. The Tennessee Bureau of Investigation, after conducting an investigation into the matter, obtained indictments against seven individuals for either providing the drugs or assisting in the introduction of the drugs into the penal facility.

Allen Wilkerson, 48, and Dakota Kidd, 20, were indicted on five separate counts of Conspiracy to Deliver Schedule II and Schedule IV, Conspiracy to Introduce Contraband into a Penal Facility, Introduction of Contraband into a Penal Facility and Possession of Contraband in a Penal Facility. Sheridan Brogdon, 29, Albert Allen, 31, Robin Wilkerson, 43, Cregory Thatcher, 26, and Johnny Johnson, 32, were all indicted on six separate counts of Conspiracy to Deliver Schedule II and Schedule IV, Conspiracy to Introduce Contraband into a Penal Facility, Introduction of Contraband into a Penal Facility and Delivery of Schedule II and Schedule IV.

The Tennessee Bureau of Investigation, U.S. Marshals and Union County Sheriff’s Office affected the arrest of these seven individuals.

The 8th Judicial District Attorney and the Union County Sheriff’s Office requested that TBI investigate the incident.

Comptroller Audit Finds Drugs, Money Missing from 2 Wilson Co. Task Forces

Press release from Comptroller of the Treasury Justin Wilson; July 11, 2012: 

A lack of proper safeguards led to missing money and drugs seized by two anti-crime task forces run by law enforcement officers in Wilson County, an investigation involving the Comptroller’s Division of Local Government Audit has revealed.

The Tennessee Bureau of Investigation (TBI) and the Federal Bureau of Investigation (FBI) asked the Comptroller’s office to assist in an investigation related to cash, vehicles and other assets seized by the Joint Violent Crimes Task Force (JVCTF) and the Safe Streets Task Force. The Wilson County Sheriff’s Department and the Lebanon Police Department had an agreement in place for their participation in the JVCTF that referenced the FBI’s participation, but the FBI did not sign the agreement. The Wilson County Sheriff’s Department and the FBI operated the Safe Streets task force.

The investigation found that some case files were incomplete or missing, including one involving bags of cocaine that were seized but could not be found.

The investigation also found that more than $25,000 in seized cash could not be accounted for – and almost $9,000 in seized cash was improperly deposited into the police department’s bank account instead of a joint account shared with the sheriff department.

Investigators also determined that vehicles seized by the JVCTF and awarded to Wilson County were not accounted for and disposed of properly.

The Wilson County deputy assigned to head Wilson County’s participation in the JVCTF and Safe Streets Task Force pled guilty to obstruction of official proceeding and was sentenced on April 27 to 18 years in prison.

“This is another case in which better use of accounting checks and balances – what auditors refer to as ‘internal controls’ – could have prevented problems,” Comptroller Justin P. Wilson said. “Good accounting and recordkeeping procedures are very important, particularly in cases like this in which money and seized assets are involved. I commend our auditors, as well as the investigators from the TBI and FBI, for their diligent work on this case.”

The audit, which was released today, can be viewed online at: http://www.comptroller.tn.gov/la/SpecialReports.asp

Violent Crimes, Prescription Drug Abuses Targeted

The Haslam administration wants to take a stab at cracking down on violent crimes and shrinking the recidivism rate by beefing up prison sentences, a task officials expect will cost taxpayers $6 million annually.

Gov. Bill Haslam is also asking lawmakers to adopt a comprehensive approach to tackling the state’s prescription drug problem by making it easier for law enforcement to track addicts and keep a better eye on ex-convicts by requiring the Department of Correction to take over supervision of parolees.

“While we see an improvement, Tennessee continues to have a violent crime rate that’s above the national average that none of us find acceptable,” the governor said on Capitol Hill Thursday.

The total price tag for the entire package of reforms could be higher, according to Safety Commissioner Bill Gibbons, who couldn’t provide specific cost tallies, but said expenses for the prescription drug and parolee reforms would be minimal. Attempts to reach agency officials for details were unsuccessful as of this posting.

The program would provide a “road map” which would take several years to fully implement. Going into 2012, officials want the Legislature to begin by beefing up punishment for repeat domestic violence offenders, gun-wielding ex-convicts and people involved in gang-related crimes.

“All three deal with areas that (district attorneys), police chiefs and sheriffs have been pushing for years,” said Gibbons. “We didn’t reinvent the wheel here. We listened to law enforcement and tried to act upon their recommendations.”

The administrative initiative would also relax punishment for non-violent drug offenders and send them to drug courts, which Gibbons said would eventually save the state $4 million annually.

The plan would also give law enforcement more tools for identifying and disciplining people who abuse prescription drugs, officials said.

The safety reforms are the product of the Governor’s Public Safety Subcabinet Working Group, a band of commissioners and administrators from 11 state agencies. The plan includes 11 objectives and 40 action steps.

Some of the ideas can be implemented by the administration while others will take legislative approval.

Lawmakers Craving a ‘Crack Tax’ Comeback

Some legislators are looking for a fix of the state’s tax on illegal drugs, often referred to as the “crack tax,” even after the original law was declared unconstitutional by every Tennessee court that examined it, including the state Supreme Court last summer.

A state House subcommittee sent a bill purporting to address the court’s findings, HB3164, to the House Judiciary Committee last week.

Under the previously passed law, someone in possession of an “unauthorized substance” could supposedly remain anonymous if they chose to inform state government revenue authorities that they were holding illegal drugs and would like to pay the special tax on their stash, in keeping with state law.

The owner of the drugs could then affix stamps to the container of the drugs to notify law enforcement agents who might happen to confiscate the drugs during an arrest that the state had gotten its required taste of the otherwise illicit action.

But the Supreme Court ruled in July 2009 (pdf) that the revenue-generating scheme actually constitutes “privilege tax,” and that “possession of an illegal substance is no privilege” that the government has granted.

The state, therefore, by the court’s reasoning, had exceeded the authority granted government by the state constitution by trying to implement the tax.

The Supreme Court also ruled that while the state has the authority to tax merchants and peddlers, the original law “taxes only possessors and makes no reference to one who sells or, by virtue of the quantity of the cocaine or other factors, displays the intent to sell.”

Supporters of the new legislation, sponsored in the House by Rep. Charles Curtiss, D-Sparta, are attempting to redefine the word “dealer” in such a way that the attorney general’s office could successfully defend the law.

Money collected from the tax is reportedly used by state and local officials to both fund more drug busts and for use in their general fund.

Revenue department officials claim they seized millions of dollars worth of private property in the name of collecting on the tax on illegal substances before it was ruled unconstitutional by the Supreme Court.

From the inception of the tax in 2005 until the Supreme Court struck down the law, $7.8 million was collected through tax, penalty, and interest, Tennessee Revenue Department spokeswoman Sara Jo Houghland said in an email. She said about $3.2 million has been returned to its owners, and more is pending return.

According to the bill’s fiscal note, the tax is expected to bring in about $1.086 million annually.

The House Judiciary Committee is scheduled to take up the bill Tuesday, March 30. The companion bill in the Senate is scheduled to be before the Tax Subcommittee then as well.

The Senate sponsor is Sen. Randy McNally, R-Oak Ridge.