Posts

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.

Retiring, Defeated Lawmakers on Taxpayer-Funded Getaway

Updated Aug. 7, 2012: Sen. Roy Herron called and said he had planned to attend the conference but decided against it due to a family emergency.

Six Tennessee legislators leaving the General Assembly this year are expected in Chicago this week on what could amount to a taxpayer-funded junket.

Four retiring legislators and two state reps who lost their bids for re-election in last week’s primary have given the state notice they plan to get reimbursed for attending the National Conference of State Legislatures annual summit in the Windy City that began Monday, a trip that could cost as much as than $2,500 in registration, airfare, hotel stay, per diem and cab rides.

They are Rep. Richard Montgomery, R-Sevierville, and Rep. Jeanne Richardson, D-Memphis, who lost their primaries, and retiring lawmakers Sen. Mike Faulk, R-Church Hill; Rep. Bill Harmon, D-Dunlap; Sen. Roy Herron, D-Dresden; and Rep. Jimmy Naifeh, D-Covington.

One of the General Assembly’s highest-ranking Republicans says he trusts that the departing lawmakers have good reasons behind their decisions to make the trip.

“I know it will be beneficial to the others who attend to get the benefit of their wisdom and their years of service,” said Senate Majority Leader Mark Norris, R-Collierville. “I think discretion is the better part of valor with these things, and obviously they’ve exercised their discretion and think it’s fine to go. I’m not passing judgment on it.”

Legislators are permitted to let taxpayers foot the bill for out-of-state legislative trips, complete with a per diem, travel and lodging expenses. Even outgoing lawmakers are entitled, said Connie Ridley, director of Tennessee’s office of Legislative Affairs.

“Members of the General Assembly serve as a legislator until the general election in November,” Ridley said in an email. “They are no longer eligible for compensation of any form the evening before the November general election.”

Richardson says she may have lost her primary election, but she still has legislative responsibilities to handle at the conference.

“I signed up because I am one of the representatives, there’s just a couple of us, who represent Tennessee on the Health Committee,” she said. “These are working committees where we share what we’ve done, and find out what other states have done and make policy recommendations for states. So, because I represent Tennessee on the health committee, I still need to come to the meeting.”

Attempts to reach Montgomery for comment were unsuccessful.

A handful of retiring lawmakers are also on the trip, including Naifeh and Faulk, according to their offices. Herron and Harmon’s offices did not respond to requests for comment.

Legislators can collect a $173 per diem each of the four days of the conference, for $692 total. Registration to the NCSL event ranges from $549 to $690, depending on when lawmakers registered for the conference online. Guests were encouraged to reserve rooms in downtown Chicago with rates ranging from $199 to $227 a night if locked in prior to Aug. 1. Lawmakers can also be reimbursed for airfare, which runs about $300 roundtrip, and cab rides, which average between $25 to $42 from the airport to the convention site.

If lawmakers decide against splitting hotels and cab fare, the cost to taxpayers could approach almost $2,500 for the four-day, three-night trip.

But no money has left the taxpayers’ pocket yet, Ridley said. Lawmakers will have to submit receipts to have their travel expenses paid for once they return, although the conference’s registration will be billed directly to the state.

While the practice is legal and learning how other state legislatures are tackling difficult policy issues is valuable, sending outgoing lawmakers on an out-of-town trip is still “questionable,” said Dick Williams, chairman of Tennessee Common Cause, a government accountability advocacy group.

“I have mixed feelings about the appropriateness of those going who will not be coming back, whether by the election or their own choice,” he said. “If they’re going to continue to do something in public life, they could make good public use of that.”

Here are the other 22 lawmakers slated to attend, according to the office of Legislative Administration:

House of Representatives

Rep. Vince Dean, R-East Ridge

Rep. John DeBerry, D-Memphis

Rep. Lois DeBerry, D-Memphis

Rep. Jeremy Faison, R-Cosby

House Minority Leader Craig Fitzhugh, D-Ripley

Rep. Sherry Jones, D-Nashville

Rep. Mark Pody, R-Lebanon

Rep. John Ragan, R-Oak Ridge

Rep. Bob Ramsey, R-Maryville

House Finance Committee Chairman Charles Sargent, R-Franklin

Rep. Johnny Shaw, D-Bolivar

Rep. Mike Sparks, R-Smyrna

Rep. Curry Todd, R-Collierville

Rep. Joe Towns, D-Memphis

Rep. Mike Turner, D-Old Hickory

Senate

Sen. Stacey Campfield, R-Knoxville

Sen. Ophelia Ford, D-Memphis

Sen. Thelma Harper, D-Nashville

Senate Minority Leader Jim Kyle, D-Memphis

Sen. Steve Sutherland, R-Morristown

Sen. Reginald Tate, D-Memphis

Sen. Bo Watson, R-Hixson

Republicans Reach Budget Compromise in Conference Committee

Republican legislative leaders seemingly mended a rift late Friday that had emerged between their Tennessee House and Senate lawmakers over local “pork barrel spending.” They agreed on about $1 million worth of additional reductions to a budget plan that had temporarily put GOP members of the two chambers at loggerheads earlier in the week .

In a rarely-called budget “conference committee” involving House and Senate lawmakers assigned to hammer out differences in the $31 billion budget, Republicans set aside their disagreements and struck accord on a list of spending projects to cut and keep. The deal they achieved put the competing versions in line with one another and on track for final passage in both chambers Monday.

“It’s not worth bringing state government to a halt,” Senate Majority Leader Mark Norris said of the earlier impasse. After the conference committee, the Collierville Republican criticized the House for being “just cold” and practicing “a little hypocrisy” for deleting a handful of local projects GOP senators wanted funded this year.

“To hold up the entire state budget under the guise of funding only statewide projects when in fact the House was funding $22 million in local projects just wasn’t going to cut it,” Norris told TNReport.

Prior to the committee meeting it seemed perhaps that the legislative aides, lobbyists and die-hard Capitol watchers who’d stuck around after a grueling week of legislative action to watch the proceedings might be treated to a public airing of intramural animosities among Tennessee Republicans. But that didn’t really happen.

During the hour and a half of back-and-forth over minute budget details and for-the-most part fiscally insignificant programs, declarations of resentment were left mostly to Democrats, who weren’t expecting to win much anyway with respect to program-spending restorations and ampler reductions to the state’s food tax that they’d been advocating most of the week.

GOP leaders had hoped to wrap up their business by week’s end before they began quarreling Wednesday over a pile of so-called “pork projects” that would funnel money to specific programs in some lawmakers’ individual districts, through HB3835.

House leaders said they struck a deal earlier in the session to only fund projects with a regional or statewide impact. Norris says House leaders told them they preferred to fund statewide projects.

The Senate broke the deal, according to House lawmakers, who cut $1.8 million in “local projects” from the Senate’s budget Thursday. The Senate, led by its plainly nettled GOP speaker, Lt. Gov. Ron Ramsey, came back the next day and almost unanimously voted to cut $22 million from the House’s spending plan.

The lone “no” vote came from Dresden Democrat Roy Herron, who said he opposed the appropriations bill because it fell short of giving taxpayers a bigger break on their food taxes and should have handed students more scholarship money.

“I respect those that made the budget, but I disagree fundamentally with taking all the taxes off of those who inherit more than $5 million and at the same time failing to fund education adequately and failing to do something more in terms of tax relief for those mothers who are trying to buy milk for their babies,” Herron told TNReport.

Senate Majority Leader Norris contended the move to gut $22 million from the budget was to send a “greeting card” to the House that the lower chamber’s budget, too, had “lots of local projects” still in it.

House Democratic Caucus Chairman Mike Turner called Norris’ description of the maneuver “one of the slickest threats I’ve ever heard.”

Ultimately, most of the cuts were restored, except for about a half dozen projects, which include $300,000 for the E.M. Jellinek Center in Knoxville for operational expenses related to substance abuse treatment, $200,000 in seed money for a higher education facility in Somerville, $75,000 for the Education Equal Opportunity Group’s programs for low-income and at-risk students, and $30,000 for a historic interpretation project.

“This thing needs to be fair. It doesn’t need to be unfair,” said Minority Leader Craig Fizhugh, D-Ripley, who unsuccessfully pushed to add those projects back into the budget. “Let’s just don’t try to get out of here without doing something for jobs in this state for people this year.”

Both chambers plan to pick up where they left off Monday and approve a final version of the budget.

The Senate will begin at 1 p.m. The House plans to come back at 7 p.m. Sunday to take up the second reading of SJR222, a constitutional amendment that requires three readings before lawmakers can vote. The chamber then plans to resume session on Monday.

Andrea Zelinski and Mark Engler contributed to this report.

‘Health Freedom Act’ Headed to Senate Floor

Sen. Mae Beavers’ bill that attempts to block the most controversial component of the federal health care law had no problem moving along through the legislative process Tuesday.

The Senate Commerce, Labor and Agriculture Committee OK’d the bill by a 6-1 vote with Democratic Sen. Eric Stewart of Belvidere and Sen. Charlotte Burks of Monterey abstaining. Only Democratic Sen. Reginald Tate of Memphis voted against the bill.

SB79’s one minor speedbump during committee discussion included a short bit of questioning about an amendment Beavers added protecting businesses’ authority to require an employee enroll in a health plan.

Stewart, a Democrat who voted in favor of a similar bill last year, said he regarded it hypocritical to let employers force employees to purchase a company insurance as a condition of employment while at the same time attacking the federal government for its individual health insurance mandate provision.

Beavers countered that no one forces an individual to work for a particular company. She said her bill is aimed at positioning the state to help protect against the federal government coercing private individual behavior under penalty of law as a condition of living in American society. That’s different than a business requiring participation in a health plan as a condition of employment, Beavers said.

“A person has a choice of whether or not to work for that company that mandates that they take their health care so you still have a choice there,” said Beavers after the committee meeting. “Whereas with national health care, you’re not going to have a choice, you’re going to be required to take insurance.”

Passage of SB79 out of committee means the measure will make its way to the Senate floor. The House version still awaits a hearing. Beavers is also pushing a bill to create health care compacts in another strategy to derail federal health care reforms. She said she expects to take up that issue in committee next week.

Memphis Charter Schools Face Uncharted Waters

Amid the uncertainties surrounding the proposed merger of the Memphis and Shelby County school systems is the question of what would happen to the city’s 25 charter schools.

The answer changes depending on who you talk to.

It would be up to the county school board to decide the future of those charter schools contracted with Memphis City Schools, Shelby County Schools Superintendent John Aitken said.

“Our understanding of the laws as they exist today is if the city school board goes out of business due to the referendum … then that would become a decision of our board, the existing Shelby County School Board, and they would have to make that determination in terms of the charter schools,” he told TNReport.

But Sen. Reginald Tate, a Memphis Democrat and the Senate Education Committee’s vice-chairman, struck a more hopeful note — saying that in the event of a merger, there’s a chance nothing would dramatically change with existing charter schools.

Those schools would likely have to meet with Shelby County officials and may have to tweak some terms of their contracts with the school district, but the issue of their continued operations shouldn’t automatically or necessarily be jeopardized, he said.

According to Tennessee state law, a charter school can be discontinued for only three reasons: violating the conditions, standards or procedures of the charter agreement; failing to meet adequate yearly progress towards achievement; or failing to meet financial standards of operation.

While the language suggests the charter schools would continue to function, the Tennessee Department of Education wouldn’t comment on whether those guidelines mean that Shelby County Schools would have to accept the schools in the event Memphis ultimately hands over the school system.

“The state wants to ensure the least amount of disruption for students and staff,” Department of Education spokeswoman Amanda Maynord Anderson said in an e-mailed statement. “Obviously, we are anticipating the plan forthcoming from Shelby and Memphis. It is our hope the plan will lay out the best course of action for all involved.”

Voters in Memphis will go to the polls March 8 to decide whether the 103,000-student Memphis City Schools will merge with Shelby County Schools, home to 47,000 students.

The already touchy issue heated up this week when Gov. Bill Haslam and Acting Education Commissioner Patrick Smith directed local schools officials to submit a plan for the merger’s transition and for how teachers would be affected.

Charter school backers say the schools would remain intact regardless of any changes to the district structure, but have noticed that nervous parents and teachers are already considering applying to new schools.

“It’s difficult enough to run these schools in these environments without having these politics chasing them around,” said Matt Throckmorton, executive director of the Tennessee Charter School Association. “These schools need to not focus on politics but on academics.”

Sen. Mark Norris, who is spearheading an effort to delay the potential takeover by two and a half years with a piece of legislation that zipped through the Senate Education Committee Wednesday, said he isn’t sure exactly that the future holds for the charter schools.

“I don’t know the answer to that,” said Norris. “I mean, in the final analysis, there may be some need to renegotiate the contracts given some of the financial realities, but I don’t know enough about the contracts or how they interact to really say.”

The drama surrounding the merger began late last year when the Memphis City School Board decided to dissolve the school district in hopes to merge with Shelby County. Since then, the situation has been in constant flux and is now heading to Memphis voters in a referendum.

Norris’ bill calls for the two school districts to develop a comprehensive transition plan with the help of a state-appointed commission before the actual merger could take place. Under the plan, the districts could merge no earlier than 2013.

Some Democrats are criticizing the plan, saying it represents an unwanted state government attempt to butt in on a local issue. The transition plan and its timeline should be left to the Memphis and Shelby County school systems, they say.

“It seems to me that I’ve listened for the last several years to people complaining about Washington controlling us. And here we are, Nashville, trying to control Memphis. That’s a serious issue,” said Sen. Andy Berke, D-Chattanooga, just moments before a party-line 6-3 vote of Republicans approving the legislation.

The measure will go before the House Education Committee Thursday and is expected to be voted on in the House and Senate chambers Monday.