A Feminist's Political Epiphany

In the book, The Legalization of Drugs1, Peter de Marneffe argues for prohibition of cocaine, “with [a] gradual and proportionate system of penalties.” His argument is based on cocaine’s correlation with crime and addictive qualities. In the preceding half of the book, Douglas Husak argues for the decriminalization of cocaine. Husak’s argument is based on a cost-benefit analysis. Husak attributes the majority of cocaine’s correlation with crime directly to prohibition. In cooperation, Husak and de Marneffe define decriminalization as meaning the use of the drug should not be a criminal offense, and legalization as meaning the production and sale of the drug should not be criminal offenses. Assuming that prohibition of cocaine possession is founded on harm reduction; I have examined and weighed the harm created by current prohibition policy, and the harm created under a legalization policy to attain this end. Staying consistent with these definitions, I propose an integration of de Marneffe and Husak’s conclusions, in which the mere possession, sale to adults, manufacture, and personal consumption of cocaine should be decriminalized, given that illegal acts under the influence face the same system of proportionate penalties as alcohol. This conclusion comes from the following justifications. First, the mere possession of small amounts of cocaine and personal consumption of cocaine is a non-violent act, thus, criminalization that leads to incarceration is disproportionate. Second, that criminal law should reflect consistency, and cocaine compared to alcohol and cigarette possession, sale, and consumption is very inconsistent. Third, that due to its addictive qualities and availability in correctional facilities, cocaine addicts need more treatment options, not incarceration. In conclusion, the harm created from cocaine prohibition outweighs the harm that would be created from cocaine regulation. Regulation meaning that possession and use of cocaine would be legal, additionally, the sale and manufacture would be legal while subject to strict regulation.

However, the issue of pregnant drug users, whose personal use of cocaine is thought to cause serious prenatal problems, will be subjected to in depth analysis. Currently, State Judicial sentencing of pregnant cocaine users has not stayed consistent across the U S. Some states have extend the application of child abuse laws to include fetuses on the grounds to prosecute, even going to measures of secretly drug testing pregnant women before and after giving birth. Other states have stayed consistent with the original dictation of the law, and have upheld the constitutional rights of pregnant women. In the following I will discuss the landmark case of State v. McKnight, Ferguson et al. v. Charleston et al, and Kilmon v. State, analyze the results of these cases, and discuss future drug policy options.
On August 3rd 2006, Regina D. McKnight appealed a judgment from the Horry County Circuit Court in South Carolina, decided on January 27th 2003, in which she was convicted of homicide by child abuse in violation of S.C. Code Ann. §16-3-85 (A), after giving birth to a five pound stillborn baby girl on May 15, 1999. A doctor Proctor testified that the child’s cause of death was “intrauterine fetal demise with mild chroioamnionitis, funisitis and cocaine consumption,” occurring three days prior to birth. Additionally, he testified that the mother’s ingestion of cocaine was the only possible cause of death. McKnight argued that S.C. Code Ann. §16-3-85 (A) was not appropriate for her case as there was insufficient evidence to prove the death occurred under circumstances manifesting an extreme indifference to human life, and that her unborn fetus did not qualify as a “child”. In the case of McKnight v. State, the supreme court of the state of South Carolina held that the term “child” includes unborn fetuses. Additionally, they found that McKnight’s case qualified as a reckless homicide case, as reckless disregard for the safety of others signified an indifference to the consequences of one’s acts.2 The court attributed this decision on the grounds that S.C. Code Ann. §16-3-85 (B) indicates that “harm” is inflicting or allowing physical injury to the child and failing to supply adequate health care, which can be applied to an unborn fetus. McKnight petitioned the court on the application of homicide by criminal child abuse, as it violated her equal protection on the basis of its disproportional aspects, as a conviction of criminal abortion is subject to a maximum of two years imprisonment, and a conviction of homicide by child abuse is subjected to the possibility of life imprisonment. The court dismissed this petition as it was unpreserved subject to State v. Dickman, which indicates that a party may not argue an alternate ground upon appeal. After seven years of court appeals, McKnight’s conviction and sentence to twenty years incarceration, suspended upon service of twelve years, was affirmed.
However, the state supreme court granted McKnight writ of certiorari, upon which on April 1, 2008 McKnight filed a petition for post-conviction relief that claimed “ineffective assistance of counsel.”3 The Supreme Court agreed with the following of McKnight’s claims: (1) counsel was ineffective in calling expert witness that undermines the defendants case, who’s testimony supported the defense; (2) council was ineffective in failing to investigate medical evidence contradicting the prosecutions, i.e. failing to rule out natural causes of death; (3) counsel was ineffective in failing to object to the trial courts criminal charges; (4) counsel was ineffective in failing to introduce an autopsy report into evidence. Upon these conclusions, the Supreme Court of South Carolina reversed the trial post-conviction relief court’s denial of relief. After serving nine years in prison McKnight’s conviction was reversed on the grounds of insufficient evidence of probative value in support of the verdict. Although McKnight’s conviction was overturned, it was done so based on insufficient evidence, not on the basis that a mother cannot be held accountable for the death of her fetus.
On October 4th 2000, Chrystal M. Ferguson et. al. petitioned the US Supreme Court for writ of certiorari on the grounds of Fourth Amendment rights violations. At the Charleston Public Hospital, operated by Medical University of South Carolina, employees joined local law enforcement and officials to implement a policy of testing, arresting, and prosecuting pregnant women suspected of drug use. Following the implementation of this new policy, ten pregnant women, who had tested positive for cocaine use and then had been arrested, brought suit against the city of Charleston, law enforcement, and officials of the hospital that had constructed the policy. Ferguson et. al. argued that their fourth amendment rights had been violated as hospital employees enacted nonconsensual and warrantless drug testing. On certiorari the Court of Appeals’ judgment was reversed by the United States Supreme Court and the case was remanded. This judgment was driven from the findings that hospital employees did violate the Fourth Amendment rights of the petitioners. “While the ultimate goal of the program might have been to get the patients into substance abuse treatment and off drugs, the immediate objective of the searches was to generate evidence for law enforcement purposes.”4 Additionally, deterring drug use through threat of criminal sanctions does violate the Fourth Amendment if conducted warrantless and nonconsensual, therefore, not qualifying as a “special needs” case. Furthermore, the U.S. Supreme Court allowed the Court of Appeals, upon remand, the right to further determine the facts of legal consent.
Upon review, the Court of Appeals reversed the denial of the motion for judgment as a matter of law, finding that in all but one case a rational jury could come to the conclusion that the women had given informed consent to the drug testing for such purposes. Upon the jury’s finding in favor of Charleston et. al., subsequent to excluding the general consent and ambulatory consent forms from adequate evidence, the district court did not specify what evidence supported the verdict. Ellen Knight, the one case in which the jury affirmed, found that Knight did not suffer any Fourth Amendment rights violations, as the urine tested for cocaine came from her newborn. However, upon completion of a treatment program her charges were dismissed. Two of the women, Ferguson and Joseph, upon seeing a PSA sponsored by the Charleston Hospital, realized the severity of their drug use during pregnancy. Upon, deciding in favor of their unborn child’s safety, despite their fear of prosecution, they went to the hospital to seek help and got arrested. On June 16th of 2003 the U.S. Supreme court denied a petition for writ of certiorari by City of Charleston et. al. v. Chrystal m. Ferguson et. al5. Although, many of the women were not prosecuted, they embody our legal system’s varying ability to properly apply the law to pregnant drug addicts.
On August 3rd of 2006, the Court of Appeals of Maryland came across a similar case. After being convicted of violating Md. Code Ann., Crim. Law §3-204(a)(1), by ingesting cocaine while pregnant, Regina Kilmon was sentenced to four years in prison after entering a guilty plea. Concurrently, Kelly Lynn Cruz was sentenced to five years after pleading not guilty, both Kilmon and Cruz appealed. Upon this appeal the Court of Appeals of Maryland had to determine the proper application of Code Ann., Crim. Law §3-204(a)(1). On June 3rd 2004, Kilmon gave birth to her 5.5lb baby boy who she named Andrew Kilmon. Andrew’s blood then tested positive for high amounts of cocaine. January 13th 2005 Kelly Lynn Cruz gave birth to a 3lb 2oz baby boy, who she named Denadre Cross, at a gestational age of 29 weeks. Doctors subsequently administered a toxicology report of both Cruz and Cross’ blood which tested positive for cocaine. Both Kilmon and Cruz were convicted of second degree child abuse under CL §3-204(a)(1). Upon appeal the Court had to acknowledge the same question for both Kilmon and Cruz, “Whether the intentional ingestion of cocaine by a pregnant woman can form the basis for a conviction under that statute of the reckless endangerment of the later-born child.”6
The court looked to Mackey v. Compass7, in which the court determined that if the statutory language is unambiguous when constructed in its ordinary meaning, then the statute is given effect as it is written. However, if the statutory text reveals ambiguity, then the court is responsible for resolving such ambiguity in light of the legislative intent. The court determined the statutory language was ambiguous and lacked evidence of direct legislative intent. CL § 3-204, subsection (a)(1) makes it a misdemeanor for a person to recklessly “engage in conduct that creates a substantial risk of death or serious physical injury to another.” The court determined that “to another” regarded another person, not a fetus. Therefore, the law only applies to the risk caused to the child immediately upon and after conception, not prior to live birth. The state concluded that a pregnant woman can be liable for reckless conduct to her unborn fetus if the child is later born alive. However, if the State was to conclude that the legislatures intended the “born alive” rule then the law could be construed to include a whole array of activity while pregnant, such as seeking prenatal care, eating a proper diet, exercising to much or too little, and wearing a seat belt, that were clearly not intend. The court cited House Bill 1233, 689, 1101, 809, 802 and Senate Bill 662, and 349 which contained unambiguous statutory language determining the harmful activity to a pregnant woman’s unborn child felony conduct, all of which died in the House Judiciary Committee. The opposition of these bills claimed, among other issues, that in those states that have enacted criminal sanctions against pregnant women who consume illegal drugs there has not been a substantial decrease in the number of drug use among pregnant women. These bills died because they were viewed as bad public policy. Therefore, if the legislature intended to include drug use among pregnant women, they would have approved of these bills. Upon enacting CL § 2-103(f) in 2005 the Maryland legislature was clear that, “nothing in this section applies to an act or failure to act of a pregnant woman with regard to her own fetus.” The Court of Appeals of Maryland then found that it was not the legislative intent to apply CL §3-204(a)(1) to pregnant women in this manner. Therefore, they reversed the judgments of the Circuit Court.
In “Child Safety: Homicide by Child Abuse: South Carolina Upholds Conviction Under “Crack Mom” Law” Marcella Smith points out what one commentator observed, “the (McKnight) ruling may deter drug addicts from seeking prenatal care or encourage them to conceal their drug addiction from their doctors — information that is essential to the effective treatment of both the women and their fetuses.”8 This statement pulls a lot of weight, as it is very logical to think that pregnant addicts will be too scared of prosecution to admit their addiction to physicians and receive proper treatment. If the goal of this statute is to reduce the harm caused to the fetus, then in this case the harm caused by the severe penalties inflicted under prohibition creates more harm to the fetus. Thus, in this manner, prohibition not only fails to serve its purpose, but in effect causes more harm than a policy of regulation. Cases such as Ferguson et. al. v. Charleston et al, are prime examples of this occurring. Ferguson upon seeking help with her addiction was in fact arrested. This sends an example to all pregnant cocaine addicts, that no matter how good your intentions are in seeking help to protect your unborn child, if you are doing drugs while pregnant you are going to be arrested. This message deters future “help seekers” and in concurrence increases the harm to their unborn fetuses.
Tiffany Scott indicated in “Repercussions of the “Crack Baby” Epidemic” that the Ferguson and McKnight cases are “representative of an ineffectual legal response.”9 Citing that impoverished women, specifically the African American community, suffers a disproportionate impact due to these cases. Scott argues that because prenatal drug testing is used in public hospitals more often that private, poor women who can only afford to use public hospitals, are subjected to the testing at a disproportionate rate. Subsequently, poor African American women are more often tested and prosecuted for the toxicology results. Additionally, because these women are more likely to be less educated they do not know their rights to refuse the tests. One of the criteria for identifying drug abusers in the Ferguson case was, “previous known drug or alcohol abuse.” Scott clearly points out that these women from poor neighborhoods are more likely to have previous history with abuse, which adds to the disproportion.
Clearly women are not being treated properly in this very sad situation. As Scott claim’s one woman, “was kept handcuffed to her bed the entire delivery.” In the Ferguson case the U.S. Supreme Court would not acknowledge the impact that jail time would have on the mother and child, nor the fact of racial bias, nor the reproductive health of the woman. Additionally, in the McKnight case officials failed to acknowledge McKnight’s prior attempts to find treatment. Scott concludes that the message given from Ferguson and McKnight’s cases is clearly, “we don’t care about you.” Scott insists that the courts are going about policing and imprisoning these women based on wrong assumptions, specifically, the idea that prenatal exposure to cocaine is the cause of harm to the fetus. However, Scott points out a study done in 1984-2000 that concluded; “most infants exposed to prenatal cocaine are indistinguishable from non-exposed infants.” Another study concluded that the fetus’ environmental impacts, such as poverty and malnutrition, were a far greater threat to the fetus’ health. Therefore, punishment upon the ground of causation is highly questionable.
Additionally, most incarcerated women are single parents who lose their children to foster care and cannot afford to maintain their parental rights. Furthermore, if the woman is not incarcerated, her child is often removed from her care. This removal of the mother from the child is in fact accomplishing what we are attempting to prevent; increased poverty, decreased public health, and increased crime. Scott then proposes that a treatment model rather than the current punitive model may be more economically and socially successful.
In “Kilmon v. State: A Missed Opportunity to Advance Women’s Rights”, Rebecca Caldwell acknowledges there were two missed opportunities to advance women’s rights in the Kilmon case10. Caldwell argues that the Court should have acknowledged the attempt to expand fetal rights in the Kilmon case. Second, that the Court should have acknowledge the violation of Maryland’s Equal Rights Amendment by prosecuting women and not men for the same act. The history of fetal rights began with the case Deitrich v. Inhabitants of Northampton11, in which a woman attempted to sue the city for the death of her baby after an unexpected stumble-induced birth resulted in the child’s death. The court found the child did not qualify as a “person” and Deitrich lost her case. However, many testified that the child was born alive and died minutes after birth. This case illustrates that the “born alive” rule was yet determined and or upheld. After the Deitrich case many attempted to expand fetal rights under property law and wrongful death actions. These wrongful death actions were soon applied to third parties and eventually the pregnant mothers themselves. In the case Coleman v. State12, the Court of Special Appeals determined that a law which made husbands who do not support their wives guilty of a crime unconstitutional as it did not apply evenly to both sexes. Furthermore, Caldwell applies this logic to fetal homicide laws, as they are applied disproportionately to the sexes, as the mother is exposed to strict scrutiny under the rights of her unborn fetus. Caldwell recognizes that the Kilmon court did find in favor of Regina Kilmon, however, this decision was based upon specific legislation not applying to the particular case. The court failed to distinguish and directly respond to the state’s attempt to prosecute a mother in the name of her unborn fetus. In failing to respond directly to fetal rights expansion, the court left the door open for further attempts to apply other statutes to a pregnant drug user. Caldwell argues that, “imprisoning new mothers on the grounds that their fetus’s rights trump their own right to liberty will only compound the problem of drug-exposed children.”
Imprisoning pregnant women does not block their ability to obtain drugs; however, it does hinder their ability to maintain proper prenatal care. Many pregnant women have endured unjust punishment and harm toward both themselves and their unborn children while incarcerated. Amnesty International has reported cases that indicate these women who desperately need help have been repeatedly thrown in single cells to give birth without proper medical care despite their cries for help13. Caldwell argues that the courts must consider the harsh realities of harm caused to both mother and fetus upon incarceration. In conclusion, Caldwell argues that the court failed to deny the states attempt to expand fetal rights and failed to address the Equal Rights Amendment issues inherent in the case. In doing so the court upheld the stereotype of a woman’s role in the household, and missed a very important opportunity to protect the rights of pregnant women.
Fetal law expansion has been highly contested in many states, as some have enacted feticide legislation that applies to third parties; others have attempted to expand the law to include pregnant women themselves.14 Supporters of criminal feticide legislation argue that a pregnant woman has no constitutional right to use drugs. Opposes argue that pregnant women have the constitutional right to privacy, that the legislation in fact harms the health of the fetus by deterring pregnant mothers who would otherwise seek treatment, and fear the future expansion of feticide legislation. Fleming, in his article, “Feticide Laws: Contemporary Legal Applications and Constitutional Inquiries” addresses the constitutional challenge of conflicting legislation in Roe v. Wade15 with fetal rights expansion. He addresses the case Webster v. Reproductive Health Services16, upon which the Supreme Court held that a state is able to enact legislation that recognizes a fetus as a child as long as it does not directly violate abortion laws under Roe v. Wade. Additionally, Fleming argues that fetal rights expansion faces challenges upon due process grounds, specifically, the issue that many feticide statutes are vague, and can be easily subjected to arbitrary and discriminatory enforcement. Fleming explains that in such states as Minnesota a person can be guilty of feticide without being aware of the existence of the fetus. However, in Pennsylvania the case Commonwealth v. Bullock17 argues that feticide legislation is in violation of due process as its vagueness did not define a specific time of gestation, indicating that the fetus must be viable, and therefore, did not clearly define the acts prohibited. However, the Court rejected this claim stating that, “to accept that a fetus is not biologically alive until it can survive outside of the womb would be illogical.” Encompassing many constitutional challenges, Fleming argues that feticide legislation will continue to be a highly debated topic as feticide laws are used more in the future.
In Robert L. Stenger’s article, “Embryos, Fetuses, and Babies: Treated as Persons and Treated with Respect” he discusses the legal status of an embryo in respect to its mother. Stenger discusses the “born alive” rule, as it was abolished by the Supreme Court of Kentucky, because doctors have highly debated when they can determine that a fetus is “viable.” Those hoping to protect the rights of every person including fetuses have come into conflict with those hoping to protect the maternal bond between mother and fetus. Women of child bearing age deserve their privacy protected. In concurrence, “the criminal or torturous loss of prenatal life is a harm to society and to the parents.”18 Therefore, Stegner concludes that the law should treat prenatal life with respect while not treating the fetus as a person.
In “The Detention, Confinement, and Incarceration of Pregnant Women for the Benefit of Fetal Health” April Cherry discusses the history of pregnant women as “fetal containers.”19 Upon suspicion of danger toward a fetus, the state has often taken custody of the fetus, by exercising the court’s parens patriae powers. Additionally, the court has used civil commitment statutes in order to confine pregnant women to hospitals, and at times have used incarceration as a means to force the pregnant woman to comply with the courts demands. Often these demands include medical procedures that the pregnant woman has chosen not to undergo. If a physician who is seeing a woman for prenatal care suspects dangerous activity including excessive drinking, smoking or drug use, they have often reported their findings to the authorities. After which the woman is arrested and taken to jail.
Cherry contends that, “Given the inconclusive scientific research, courts may be basing their determination of fetal harm on something even more problematic: their perception of the proper behavior of pregnant women.” South Dakota and Minnesota have enacted statutes that allow the incarceration of pregnant women, who have been using alcohol or illegal drugs, for the duration of their pregnancy. However, the judge and jury are left to decipher what constitutes “abusing alcohol or drugs.” United States v. Vaughn20 was one of the first cases where a judge sentenced a non-compliant pregnant woman to incarceration as a precaution to solely protect fetal health. Cherry explains that both police power and parens patriae power are limited, as the pregnant woman’s physical liberties are severely constrained. As the fetus does not constitute a third party in respect to its mother, seeing that they are legally considered one until birth. In order for the state to detain a pregnant woman in order to protect fetal health they would have the burden of proving a compelling and necessary interest with convincing evidence that no other less restrictive alternatives exist. Cherry claims that, “In the context of non-compliant and drug and alcohol using pregnant women, the state cannot meet this standard. Therefore, any detention for the sake of fetal health is unconstitutional.
Seeing that the right to privacy protects a woman’s right to bodily integrity and reproductive rights free from government coercion. Cherry concludes that as long as women are stripped of their privacy and their own interests are ignored, incarceration for fetal health reduces pregnant women to mere “maternal environments.” Finally, if the concern is for the health of the fetus, the health of the mother must be the first priority. Conclusively, we must provide more quality rehabilitation facilities equipped for prenatal care, without the threat of punishment.
In “Coke and Smack at the Drug Store: Harm Reductive Drug Legalization” Noah Mamber analyzes the United States Drug Policy of Criminalization. Mamber highlights the bright arbitrary line the U.S. has attempted to make between legal and illegal drugs. Mamber argues that an alternative philosophic basis for drug policy could be found within John Stewart Mill’s philosophy, which suggests a society based upon the idea of negative liberty. Negative liberty emphasizes that the individual is free from the coercion of the state as long as they refrain from harming anyone else. “Over himself, over his own body and mind, the individual is sovereign.”21 However, Mamber acknowledges that it is highly unlikely that a libertarian policy would be adopted in the US. Mamber proposes that a policy of harm reduction, rather than criminalization, is more practical. In this article Mamber lists problematic effects of illegal drugs such as, harm to one’s health including the possibility of overdose, damage to an unborn fetus or child from a pregnant mother’s use, decrease in productivity, injuries, fatalities and property damage from traffic accidents, and the negative impact on family relationships. He argues that in order to be successful a new drug policy must alleviate all second hand harm caused under prohibition and must reduce the most harm caused by primary effects. Under the current criminalization model some of the major issues are environmental consequences, economic, mandatory minimum sentences, Higher Education Act, Public Health Crisis, and drug crime.
While the government looks to reduce drug use and minimize harm, the current policy of criminalization fails to succeed in doing so. Therefore, Mamber looks to alternative drug policy models. He argues that decriminalization models do not serve to reduce the secondary harm caused by illegal drug markets. Furthermore, a medical/prescription model, which views drug addiction as a public health concern, only focuses on those who are already addicted and fails to eliminate the black market of drugs and secondary harm. In addition, while a harm reduction policy may seem like the best alternative, it to fails to eliminate the black market and secondary harm.
Therefore, Mamber proposes a new model he has named harm reductive legalization, “in which the principles of harm reduction are applied to a legalization state.” In this model, Mamber would create a National Recreational Drug Registry. Under which, people of age could attend a drug class on the affects of drug use in order to obtain a card or license that permits them to legally obtain a set amount of drugs per day. The legal allowable amount would be set on a scientific basis of how much an individual person can biologically consume while minimizing the risk of hospitalization or overdose. As each person reacts to drugs differently, hospitalizations and harm will still occur. However, these occurrences will be highly outweighed by the prevention of so many others under the current criminalization policy.
Once drugs are legalized a demand for better drug tests will lead to modern advances which could determine the amount of drugs currently in the body at the time of the test, and be used like blood alcohol level tests are currently used. In order to safeguard the workplace, employers would be allowed to use these mandatory drug tests. In response to health insurance concerns Mamber argues that allowing the insurance companies access to the drug registry would allow them to raise premiums for drug users without allowing them to discriminate from insuring drug users. However, I do not foresee a law in which the insurance companies are allowed to raise drug users premiums discriminating them based upon a legal choice, while not refusing them coverage. Additionally if they were allowed to raise drug user’s premiums they might do so to a degree that the user can no longer afford health insurance. Therefore, I disagree with Mamber that the drug registry should be available to insurance companies.
Mamber maintains that under his policy, it will still be illegal for minors (persons under the age of 18) to legally use drugs. Those minors caught using drugs will be guilty of a crime and subjected to a monetary fine. Additionally, those caught selling to minors will be guilty of a crime and subject to large criminal penalties and possible prison time. In concurrence, to prevent patients from self medicating through the registry, the government would set prescriptions at a 15-20% price cut compared to the same drug sold recreationally through the registry. Public use of these drugs would remain illegal and crime caused while under the influence would be subject to very harsh penalties. Controls on advertizing would be established in a manner like those regarding alcohol and tobacco. The government would have to enact legislation that kept companies wishing to make a profit from selling recreational drugs under control. Ingredients and potency of the drugs available to the registry would be truthfully labeled and controlled by strict legislation in accordance with scientific data. Drug education for children must include options and safety measures if the child does decide to experiment with drugs. A new bureaucracy would need to be established in order to create and maintain the registry along with administration sites, funded by the money that would be saved from our current policy of criminalization.
Moreover, drug treatment facilities and education options must be rehabilitated. Mamber argues that we must offer more treatment options for those seeking help and mandate treatment for those guilty of committing crimes while intoxicated. Yet, drug rehabilitation is dependent upon the drug user’s willingness and desire to quit using. Therefore, I believe that mandating treatment for those who commit crimes while under the influence will serve as a new means to incarcerate drug users. Additionally, I will propose that those who commit crimes while under the influence should face a proportional system of punishments, including incarceration. However, Mamber believes that as long as his new policy opens the dialogue to further drug policy debate, it has accomplished its goal.
According to a national study in 2007 the infant mortality rate was 6 per 1,000 live births for whites and 13 per 1,000 live births for blacks.22 This large gap between the races indicates the possibility of many factors being involved. One such factor is the high presence of drugs in poverty stricken neighborhoods inhabited by a majority of African Americans. The devastating social impact that illegal drugs have on poverty stricken neighborhoods is typical of this statistic. A recent study in Wisconsin where the gap was eliminated has concluded that while they have no medical explanation, their findings support the theory that , “links infant mortality to the well-being of mothers from the time they were in the womb themselves, including physical and mental health; personal behaviors; exposure to stresses, like racism; and their social ties.”23 Under the current criminalization drug policy many pregnant addicts suffer from a loss of well being. Their behavior is socially unacceptable and they are labeled unfit mothers, which takes a toll on their mental health and stress levels. Additionally, those seeking help will be under a huge amount of stress because of the threat of punishment. Women from poverty stricken backgrounds and racial minorities will be affected the most by racism as they are targeted for punishment due to racial profiling and existing racial stereotypes. All these factors decrease the health of the pregnant woman and in effect hinder the health of the fetus. Additionally, they are all causes of prohibition. Under a policy of regulation these second hand effects would be reduced.
Often the behavior of a cocaine user is mistakenly associated with the drug itself and not the effects of the drugs illegal status. In “The War on (Some) Drugs” Stephen Gould emphasizes that, “I think one of the things that many people confuse is the behavior of cocaine and heroin addicts when they are deprived of these drugs. That’s the difference between a licit and an illicit drug.”24 If everyone who smokes cigarettes was to lose access to their drug, their behavior would change as well.
We must analyze a policy in which the only effects from drug use would be the effects of the drugs themselves. Additionally, doctors have found the effects of the drugs themselves on the fetus inconclusive. Therefore, we do not know of the real danger inflicted on the fetus by its mother’s ingestion of cocaine. We cannot possibly endorse legislation that criminalizes an act we do not fully understand to be a threat. Additionally, there is controversy as to whether cocaine can cause dependence. In his article “America’s Altered States” Joshua Shenk states that, “Many illegal drugs, like marijuana and cocaine, do not produce physical dependence.”25 While, there is extensive research on the withdrawal symptoms of cocaine use, the findings are still inconclusive. Lawrence Fitzgerals and Eric Nestler conclude their research on cocaine regulation of signal transduction pathways stating that, “clearly, new approaches are required to facilitate the rather difficult task of relating the biochemical and molecular changes associated with chronic drug exposure with the complex phenomenon of addiction.”26 There just is not enough scientific evidence that explains clearly the effects of cocaine use on a user and or a pregnant user’s fetus.
“Indeed alcohol contributes to more violent crime than cocaine” claims Kevin Sabet in his article “The (Often Unheard) Case Against Marijuana Leniency.”27 These two views explain our inconclusive knowledge of cocaine’s effects upon behavior. Some cocaine addicts choose to involve themselves in other illegal behavior while others do not. Based upon our inconclusive scientific and social evidence of cocaine effects on behavior we can only analyze each case specifically. Therefore, we should look to proportionally prosecute those who choose to break other laws while using cocaine. Not prosecute cocaine users for using, as we cannot say their use is to blame.
Studies between San Francisco, a city with a policy of criminalization, and Amsterdam, a country with a policy of legalization, have revealed interesting results. “Amsterdam respondents reported significantly lower lifetime prevalence of the use of other illicit drugs than did respondents in San Francisco.”28 However, rates of cocaine were not significantly different between the San Francisco respondents and Amsterdam respondents. Yet the evidence of the study “can neither prove nor disprove either position because so many factors besides the differing drug policies can affect other illicit drug use.” We cannot know for sure the results of a drug policy change. We can only look at the existing data and attempt to logically reduce the harm currently created. There will always be a population of cocaine users in the United States. Our job as active citizens is not to find a way to completely eradicate our country of drugs as that is impossible. Our job is to formulate a policy that reduces the most harm.
Criminal law should reflect consistency, and drug policy in the U.S. is very inconsistent. We cannot punish one non-violent pleasure seeker while allowing the other non-violent pleasure seeker his drug. Cocaine would create the least harm if treated legally in the same manner as tobacco and alcohol. Under which the sale to minors would still be an illegal act, and subject to specific regulations. Advertising would be subject to the same scrutiny as tobacco and alcohol, and illegal in most cases. Manufacturing would also be subject to specific regulations. We can allow a cocaine user to use cocaine while not socially accepting its possibly self harming effects, as we do with alcohol and tobacco.
If we wish to reduce the harm caused by our drug policy we must look to help the recovering user, not look to punish them from seeking personal pleasure. Criminal records severely prevent recovering users from acquiring jobs and becoming contributing citizens. Even those who are parents and wish to change their lifestyle are prevented from doing so economically by their criminal record. Under a policy of regulation, if those guilty of legal possession, sale, and use of cocaine decided they no longer wished to use they could change their lifestyle without a criminal record preventing them from doing so.
Our current model proves that we cannot prevent every drug user from obtaining or using drugs, not even through incarceration. However, we can look to reduce the most harm by helping those who do wish to stop using through investing in more treatment options, including facilities that are equipped to help pregnant cocaine users. Education of cocaine’s effects and future scientific data may help to deter some future drug users. However, there will always be a population that chooses to use cocaine. This is the population we must logically construct our drug policy around. If we enacted a policy of regulation we would suffer the least harm from those who choose to use cocaine. This conclusion is based on the scientific and social data we have regarding cocaine’s effects on a user and a user’s fetus. The current criminalization policy deters users looking for help, disproportionately subjects poor minority women to punishment, is a violation of constitutional rights, and dehumanizes pregnant women, all based upon inconclusive evidence. The current policy is not achieving its purpose, and is evident of a failed policy.
The most harm reducing method looks to rehabilitate cocaine user’s futures, in order to reduce the harm to themselves and possibly their fetuses. Cocaine use has not been proven to be directly associated with violent behavior. Cocaine use by a pregnant mother has not been proven to be directly associated with infant abnormalities and fatalities. Therefore, using cocaine is a non-violent act and may only harm the user themselves. When it comes to writing and enacting legislation we cannot take a paternalistic approach at saving drug users from their own habits. Under a policy of criminalization the drug user and society suffer more harm than they would under a policy of regulation. Using a harm reductive model the best policy to enact would be a model of regulation of cocaine. Being a non-violent act, the mere possession, use, proper manufacture, and proper sale to adults of cocaine should be legal. Other illegal acts committed while using cocaine should continue to be subject to proportional punishment. In effect, law enforcement would have the ability and means to crack down on violent offenders, potentially reducing violence levels. A policy of regulation of cocaine, while investing in better treatment options and emphasizing truthful education, would reduce the most harm. 

Notes

¹ Husak, Douglas, and de Marneffe, Peter. The Legalization of Drugs. New York : Cambridge, 2005.

² The State, Respondent v. Regina D. McKnight, Appellant. 352 S.C. 635; 576 S.E.2d 168; 2003 S.C. LEXIS 23 (S.C. 2003)

³ Regina Denise McKnight, Petitioner, v. State of South Carolina, Respondent, 378 S.C. 33; 661 S.E.2d 354; 2008 S.C. LEXIS 142

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