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A Jones County prosecutor and a top sheriff’s official found a new way to punish pregnant women suspected of using drugs. The duo believe their approach, which has resulted in 20 prosecutions in four years, will break the cycle of intergenerational poverty and incarceration in southern Mississippi. But is it constitutional?
Story by Erica Hensley and Michelle Liu | Sunday, May 12, 2019

LAUREL — Standing in a Jones County courtroom last April with her wrists shackled, Christina Yanacheak felt about as tall as Jiminy Cricket in her orange jumpsuit as she listened to the judge hand down her punishment.

“You’re lucky this case isn’t going to a trial,” the judge told Christina.

“I know,” Christina responded through tears, minutes after she pleaded guilty to felony child abuse, thus avoiding a jury trial.

“Because if a jury came back in this case with a verdict of guilty, I’d think seriously about sending you to prison for life,” the judge said. “I don’t see how any mama can do this to her baby. I just don’t see how. What in the world could you have been thinking?”

“I wasn’t,” Christina said. “I really wasn’t.”

With that, he sentenced Christina not to life, but to 10 years in prison for poisoning her newborn son. Five of those years would be suspended, but she would have to serve the other five at Central Mississippi Correctional Facility in Pearl.

If five years seems like a lenient sentence for giving poison to a baby, that’s because the circumstances of Christina’s arrest and imprisonment are more complicated. In fact, the cases of Christina and many other Jones County women in recent years have gotten the attention of local and national maternal rights advocates who say this southeast Mississippi county known for its free-spiritedness is violating the rights of pregnant women and deterring them from getting the health care they need.

Ever since she learned she was pregnant with her son in 2016, Christina had avoided crack cocaine, which she had struggled with since she was 23. But after months of sobriety, as she entered the ninth month of her pregnancy, Christina smoked crack with friends at a New Year’s Eve party. She went into labor the next day. On Jan. 2, she gave birth to a baby boy — one of the first babies born in Jones County in 2017, she recalls.

She also vividly remembers what came next: two Child Protection Services officials showed up at the Laurel hospital where she had just given birth and took her son from her arms; the state would later take her one-year old son while they investigated her case.

Two weeks later, Jones County sheriff’s deputies arrested Christina and charged her with felony child abuse. Christina thought she might be punished for using drugs while pregnant. But she had never laid a hand on her children. She was confused why authorities would think her healthy baby boy had been abused.

“Everybody makes mistakes,” Christina, now 37, told Mississippi Today over the phone from Central Mississippi Correctional Facility. Corresponding with reporters over phone calls and letters, Christina struggles to understand how she ended up here.

“I admit I am an addict [and] now a recovering addict but the system didn’t help me … They threw me away. The Jones [County] judge made an example out of me and that’s how I feel,” she wrote.

But If Christina lived in another county, things might have turned out differently.

“Help me Get my kids back!” wrote Christina in a letter. She is currently serving a five-year sentence at Central Mississippi Correctional Facility in Pearl. Credit Eric Shelton / Report for America

Jones County is known for making its own rules. By some accounts, the county seceded from the Confederacy during the Civil War (as depicted in the film “The Free State of Jones,” starring Matthew McConaughey). Located in the piney woods of southern Mississippi, it is now home to some of the state’s most colorful public officials, including Republican state Sen. Chris McDaniel and Democratic Rep. Omeria Scott.

Economically, Jones County fares better than many parts of the state. Its largest city, Laurel, has seen an uptick in development in recent years. The county has a five percent unemployment rate that mirrors the state average, while the median income is about $3,000 less that the state’s. Still, more than three-quarters of the county’s children qualify for free or reduced school lunch and about half live in single-parent homes.

Local law enforcement officials say drug use is widespread with marijuana and methamphetamine the most commonly used illegal drugs in the county, which tracks with statewide data gathered by the Bureau of Narcotics.

About four years ago, Kristen Martin, a recently-hired assistant district attorney, started teaming up with Tonya Madison, a captain with the Jones County Sheriff’s Department, to tackle what they believed was a disturbing trend: the increasing number of referrals to the sheriff’s office from child-protection services for mothers and newborns testing positive for drugs such as cocaine, heroin and methamphetamine.

Assistant District Attorney Kristen Martin, left, and JCSD Capt. Tonya Madison stand in front of the Jones County courthouse in Laurel. Credit Mark Thornton/Laurel Leader-Call

“Okay, what can we do?” Madison recalled asking Martin. “What statute can we use to prosecute the moms so we can do what we needed to do for the kids?”

Unlike neighboring Tennessee, which criminalized drug use while pregnant in 2014, Mississippi does not have a law specifically addressing the issue.

Martin, who handles all of Jones County’s drug cases, looked to Mississippi’s felony child abuse law, which defines poisoning as child abuse, regardless of whether bodily harm results to the child. Martin reasons that when a woman uses illegal drugs while pregnant, those chemicals will end up in her baby’s system, thus poisoning the child.

“And that’s how we came up with the felonious child abuse statute,” Martin said.

Since 2015, Martin estimates she has prosecuted about 20 women under this novel interpretation of the law; none of them have gone to trial.

Mississippi Today identified 18 such cases in Jones County through news reports and public records. Some made statewide headlines, such as the case of Bailey Kitchens, a teenager whose son died less than two weeks after he was born. After Kitchens was first charged while pregnant, a judge had ordered her to remain in jail until she gave birth.

Martin has also prosecuted one father who pleaded guilty to felony child abuse for giving methamphetamine to the mother of his son, a baby born prematurely with the drug in his system. Both parents were sentenced to five years in prison.

In some states that criminalize drug use in pregnancy, such as Tennessee, law enforcement becomes involved when doctors diagnose a baby with neonatal abstinence syndrome, or when the baby is born reliant on drugs. By contrast, Jones County has arrested and charged some women before they have even given birth, according to news reports, though the baby must ultimately test positive for a case to move forward, Martin said.

Madison, the Jones County captain, says officers can identify the women after Child Protection Services gets involved or on routine stops when officers have reason to suspect a pregnant woman might be using drugs.

Madison’s boss, Jones County Sheriff Alex Hodge, supports this approach and is proud to partner with the district attorney’s office to prosecute these cases. “We make no apology for the protection of life for the unborn … I think there’s a great responsibility that we have to do just that, not only to prosecute, but to educate,” he said. Martin’s boss, District Attorney Tony Buckley did not return calls for comment.

Of the women who pleaded guilty, about half have been sentenced to complete drug court, a program that requires participants to take frequent drug tests, life skills classes and attend Alcoholics or Narcotics Anonymous meetings over the course of three to five years. People who complete the program will have their initial charge removed from their records.

At least eleven women have pleaded guilty in the past four years. Jones County grand juries indicted two this year. Four others have not been indicted; one woman died while charges were pending. Women found guilty of the charges face a minimum of five years and a maximum of life in prison.

“The ultimate goal is to get these women help,” Martin said.

Whether Martin’s approach is helpful to women and children — or even constitutional — is the subject of debate, according to advocates and defense attorneys for the women being prosecuted.

Martin is well aware that her unorthodox approach has rankled criminal justice reformers and women’s advocates.

“We know at some point we are going to get challenged,” Martin said. “We haven’t yet because, obviously, we have to take one to trial. We’ve gotten some backlash from New York and some other states, Northern states, from doctors who disagree with the idea that drugs are poison.”

National Advocates for Pregnant Women, a New York-based non-profit tracking these prosecutions in Jones County, helps local defense attorneys understand the science of drug use during pregnancy.

“What those experts have determined first and foremost is that a fetus is not a child. So there goes the child neglect (argument). And second to that, there is no clear definition in Mississippi statute that defines poisoning,” said Aarin Williams, an attorney for the organization.

In recent years, a wave of attempts to redefine personhood has met resistance from the courts or, in the case of Mississippi, which voted down a so-called personhood amendment in 2011, the voters.

“You cannot make a fetus a person without taking away the constitutional rights of the woman,” Williams said. “These laws are anti-woman, and if you are anti-woman, you are anti-baby.”

Williams added that even if poisoning was defined by law, medical experts say drug use in pregnancy is not necessarily tantamount to poisoning a fetus; the public health problem of drug use in pregnancy needs to be addressed with a public health focus, not a punitive one that dissuades prenatal care and treatment. Studies suggest while all drugs affect women and fetuses differently, neonatal abstinence syndrome is treatable and not permanent.

Research shows that criminalizing pregnant women’s addiction dissuades them from getting prenatal care,has a disproportionate effect on poor women and harms patient-doctor relationships. The American College of Obstetrics and Gynecologists calls the criminal approach to mothers’ addiction “inappropriate” and “disturbing.”

The handling of drug use in pregnancy by the news media and medical community has shifted in recent decades. After years of worry about the long-term effect of babies born to mothers who used crack cocaine, for example, research shows no specific correlation to crack and fetal or baby impairment. Some modern research on opioid use affirms previous studies and emphasizes that while drug use is unhealthy for pregnancies and can lead to complications, all drug use is different and not automatically linked to fetal harm. Almost all research points out that untreated opioid use disorder and forgone prenatal care put both the mother and newborn at higher risk of complications.

Martin said she has consulted with a Jackson-area doctor who she declined to name but anticipates would testify to the contrary of Williams’ claims should one of these cases ever go to trial. She adds that the women she is prosecuting under this statute were “not getting prenatal care anyway.”

Yet even Madison acknowledges a degree of uncertainty as to whether the children are harmed, noting that some of the babies have “been OK” and others have had to stay in neonatal intensive care for a while. “We don’t know (if) three, four, five years down the road, that child has some medical issues,” Madison said.

That’s a degree of uncertainty unacceptable to Williams. “The state is supposed to be able to prove beyond a reasonable doubt that there was poisoning,” she said. “If they’re admitting right now that they just don’t know — why do these women, why do these families, have to be torn apart while they try to figure things out?”

In addition to what she considers the murkiness of Martin’s prosecutions under state laws, Williams believes they violate the 14th Amendment’s Equal Protection Clause because only pregnant people and mothers can be punished.

“You’re creating this specific segment of this class of people for this law to apply to and it was not legislatively intended for it to be applied that way,” Williams said.

In Tennessee and Alabama, so-called fetal assault and chemical endangerment laws, respectively, have rallied advocates concerned about equal protection issues and the long-term impact on women.

Most cases criminalizing drug use during pregnancy do not stand up in court. A 2017 review published in the Journal of American Academy of Psychiatry and the Law found that since 1977, over 86 percent of cases across 19 states saw dismissed charges or overturned convictions.

Grant Hedgepeth, a former district attorney turned defense attorney who represented one of the women prosecuted in Jones County, believes the district attorney’s office is “pushing this, probably beyond constitutional muster.”

“I think they’re going beyond the intention of the Legislature,” said Hedgepeth, who supports legislation that address the use of illegal drugs during pregnancy.

“If it’s perfectly legal to abort your child, how can you make it a potential life sentence to harm an unborn child?” Hedgepeth said.

Martin is unaware of other prosecutors in Mississippi who have applied the child abuse laws to punish women who use drugs while pregnant. However, prosecutors and judges have previously thrown the book at women whose pregnancies result in stillbirths or other complications.  

In 2006, a Lowndes County woman named Rennie Gibbs was charged with depraved-heart murder after the stillbirth of her daughter. A urine test showed Gibbs had cocaine and marijuana in her system. At the time, medical examiner Steven Hayne said the child’s cause of death was “cocaine toxicity,” citing autopsy reports showing a cocaine byproduct in the child’s blood. The charges were eventually dismissed. Hayne was subsequently discredited for presenting testimonies far beyond the scope of forensic science standards and misrepresenting his credentials as a forensic pathologist, as multiple people convicted in cases Hayne testified in were exonerated in the last decade.

Recently, legislators have also attempted to codify Martin’s approach. During the 2019 legislative session, state Sen. Dennis DeBar Jr., R-Leakesville, filed a bill to make it felony under the child abuse statute for a child to test positive for a controlled substance at birth while state Sen. Michael Watson, R-Pascagoula, pushed a measure that would have created a crime for the “chemical endangerment of a child or fetus” should the child or fetus ingest, inhale or otherwise receive exposure to a controlled substance. Both bills died in committee.

Martin believes it’s only a matter of time before such a measures makes it into law.

“I admit I’ve made mistakes,” wrote Christina, “but as far as harming my kids and labeling….as a child abuser is very hidious (sic)…”

Martin and Madison, the captain in the Jones County Sheriff’s Office, believe they’re helping women and protecting their children.

The two often find themselves texting each other at all hours of the day about cases. They commiserate, noting that their jobs take a toll on their own children and families. Madison, with her tough-cop exterior, says she tries to get realistic with moms she arrests. Martin has an office full of file boxes that she says have helped her understand addiction as a disease that needs treatment, not necessarily prison time.

“It’d be nice to have some more options, because obviously the prison option right now is not a good one for just about anything,” Martin says. Yet some moms, she says, are “too deep into the drug culture” and “don’t want to change their lives.”

Martin balks at the idea that they lock up women and throw away the key. “Our jobs are to enforce the law, obviously. But having said that, we don’t just sit here and say we want to throw everybody away and put them in prison. That’s not what we’re about because obviously that’s not working … I mean these people are just going in and coming out, going in and coming out, so something is broken and it’s not working, but that’s a story for another day.”

Sometimes, they note, they secure recovery beds for women who are still pregnant instead of sending them to jail. That way, counselors can monitor the woman and provide her care until the baby is born.

Other times, they advocate for some women to go to drug court when they think she will successfully complete the program. In other cases, such as one woman recently sentenced in Jones County who had 11 children and did not have custody of any of them, Martin says drug court would have been a waste of time.

“You send (the women) to drug court or any other kind of facility, and hopefully they turn their lives around and the babies’ lives are better from then on,” Martin said. “Because what we see is just a vicious cycle. Mama’s on drugs, baby’s born on drugs, baby ends up 15 years from then coming through our system.”

In Martin’s opinion, the chances that Christina, with whom her office is familiar from previous drug arrests and referrals from Child Protection Services, will break that cycle are slim.

Christina is determined to prove the prosecutor wrong.  

She still has questions about her case, growing manic over not knowing where her children are or how to assert her parental rights from prison. “I am truly doing this alone and I am being ignored,” she wrote in a letter to a reporter.

Christina’s father, who lives out-of-state and is disabled and unemployed, can occasionally afford to put a little money in her commissary account for paper, stamps and extra toiletries when her single bar of state-issued, travel-size soap runs out. Sometimes, she resorts to using sanitary pads as toilet paper.

Other unanticipated expenses include the seven teeth Christina had pulled after enduring weeks of pain. The state of Mississippi charges prisoners a $6 copay for the cost of extractions, which prison officials deduct from inmates’ commissary accounts.

What’s hardest to bear is not being able to get in touch with her kids or CPS. She can rarely afford stamps to write her Child Protection Services caseworker, who Christina said has not returned letters.

Since entering prison, Christina has completed a parenting class, started English literature courses and been baptized.

“I am truly trying to better myself while I am here — that’s why it hurt me so bad when I went to court,” she wrote. “They didn’t even acknowledge the good I am doing. They are so stuck on my past. It’s like I didn’t even have a chance to prove myself.”

In what she sees as cruel twist of irony, she can’t get into the prison’s alcohol and drug treatment course because it requires a court order or Mississippi Department of Corrections referral.

The rare visit from her teenage daughter is Christina’s only contact with her kids. Her oldest has made the three-hour trip only once, where mother and daughter sat across each other at a plastic table, surrounded by other families.

“I am not perfect by no means, but I am willing to do whatever the system wants me to do to get my kids back,” Christina said. “I really pray and cry everyday over my babies.”

This is the first of two stories exploring the intersection of the criminal justice system, pregnancy and drug use in Jones County. Read the second story here.