Prosecutors argue controversial law helps drug-addicted moms

No one wants a new mother to go to jail. But no one wants a woman to abuse drugs while she's pregnant, either.

Faced with both of those options as the state confronts a growing number of babies born dependent on drugs, Tennessee has tried to make a difference, weighing measures involving both treatment and punishments for women.

Lawmakers first tried the "carrot" of enticing drug-addicted women to pursue prenatal treatment. And then, at the call of several eager prosecutors, they also created the "stick" last year: a controversial law approved that allows assault charges against mothers if they give birth to drug-dependent babies.

Roughly 10 months after the law took effect, the rate of drug-dependent births in Tennessee has continued to grow, again on a record-setting pace this year.

Yet with no definitive sign the law is reducing such births, prosecutors who have put their new legal stick to use are convinced it's having a positive effect.

A statewide survey released Monday found that 17 district attorneys believe the threat of jail is preventing more drug-dependent births. Seven others said the law isn't helpful. Six didn't respond.

Statewide, in the six months the prosecution was in effect in 2014, criminal charges were "used sparingly and selectively," Department of Safety Commissioner Bill Gibbons said in a letter to Gov. Bill Haslam that accompanied the survey.

The state found 28 women charged across 10 judicial districts, leading to some form of drug treatment in 18 cases as of January.

Prosecutions were most common in District 2 in Sullivan County, followed by District 30 in Shelby County. Only one Middle Tennessee prosecutor, in Rutherford County, used the law to charge a woman.

First mom arrested

Search Google for "Mallory Loyola" and you find the picture of a 26-year-old Monroe County woman on the websites for MSNBC, the New York Daily News, Buzzfeed and many other organizations. She's synonymous with the state's pregnancy criminalization law, as the first mother arrested on a charge that she abused her baby by taking drugs during pregnancy.

But the state's first test of the new law came with complications.

Loyola admitted smoking methamphetamine a few days before giving birth to her child, according to a report from WBIR-TV in Knoxville. But while state law allows an assault charge for abuse of narcotics that result in a baby having neonatal abstinence syndrome, meth was not targeted in the law passed last year.

But confusion about the outcome remains, even for the lawmaker who has pushed for prosecutions. Law sponsor Rep. Terri Lynn Weaver, R-Lancaster, said that law enforcement ultimately had to release Loyola because she couldn't be charged for using meth while pregnant.

But that wasn't the outcome. Loyola pleaded guilty to a lesser charge and received probation, according to WBIR.

District Attorney Steven Crump said there was some confusion with Loyola's case.

He said when he initially heard about the arrest he didn't think they could charge Loyola, but he learned she also tested positive for an opioid covered under last year's new law. She was charged with the assault of the child and not for the meth, Crump said. Loyola's attorney could not be reached.

Overall, Crump said the law is a necessary tool, but one he doesn't use very often.

"We've tried to be very sparing in the use of the statute," he said. "We've tried to stay away from cases where there was a significant question in our minds as to whether or not there was the (drug dependence), or where we didn't feel like we were going to accomplish anything by charging the mother in that set of circumstances."

His office has charged three women under the new law since it went into effect. In all three cases brought by his office, Crump said the mothers were put on a "diverted status" instead of in jail, and in two of the three cases, the mother and child were reunited.

He didn't mention specifics of the third case. Several media reports and obituaries indicate 34-year-old Tonya Denise Martin of Tellico Plains was arrested after giving birth to a baby boy. The boy and the mother died days apart in November.

Using the stick

Although lawmakers continue to debate prosecutions — flirting with expanding prosecution powers this year before the new measure died in the Senate last week — there was no count of arrests until the district attorney survey results were made public this week.

At the same time, there is clear data that show the number of babies born drug-dependent in Tennessee is on the rise for the 14th year in a row. Meanwhile, the number of cases in which the state takes away children because of meth-related charges has fallen from 330 cases in 2011 to 186 in 2014.

It's too early to say the law isn't working, Weaver said.

"We're in the middle of grabbing all that data. That's why we have to have this time to see how things are moving. I will tell you that it's moving in a positive note," she said.

She's basing that off conversations with several district attorneys and people who work at drug courts, alternative legal systems that push drug treatment instead of jail time, she said. Although some prosecutors said last year they wouldn't use the law to prosecute women, Weaver used the advocacy of Barry Staubus, district attorney for Sullivan County in East Tennessee, to support her case.

"I think that we need a stick to go with the carrot. I think that some women that would have not gone in (to treatment) without the specter of a threat or the possibility of a charge have enrolled in these programs," Staubus said.

The law allows an assault charge against a woman if a newborn tests positive for drugs, but mothers can avoid jail if they get into and complete treatment.

Staubus said his office evaluated more than 100 potential cases, but officially charged only a few — eight, according to the survey.

"The ones we typically prosecute are going to be the ones where maybe this is not the first time the mom has had a drug-dependent baby," Staubus said.

Like Crump, Staubus said the charges haven't led to convictions that result in jail sentences, although the initial arrest and booking process typically does place a woman in jail for some time.

In the end, Staubus said cooperation of the mother is key: If she wants to get treatment, she won't face stronger penalties, he said.

Staubus said the drugs most often found in cases he sees are addiction-treatment medications, including some designed to be safer for pregnant women.

"If they have a legal prescription and they're taking it the way that they're supposed to, we're not going to be prosecuting that case," Staubus said.

Unintended consequences

Treatment facilities and advocates say the law isn't working.

Laura Berlind, head of Renewal House, an addiction treatment facility in Nashville, said she'd heard stories of women giving birth outside of hospitals to avoid the authorities, and instances of women leaving the state. State numbers show at least 57 women left Tennessee to give birth to babies who tested positive for drugs after the law went into effect.

Just like the number of arrests under the new law, opponents lack comprehensive details of women resorting to desperate measures to avoid prosecution. Instead of enticing women to get prenatal treatment, ACLU of Tennessee Executive Director Hedy Weinberg says the threat of prosecution drives women underground.

"Drug use is bad and pregnant women using drugs is not good. But the idea of punishing women rather than providing access to comprehensive substance abuse programs where women can also stay with their families … is wrong," Weinberg said.

Weaver said no women are turned away if they're seeking treatment. But only a handful of the 177 licensed residential treatment facilities in Tennessee provide prenatal care on site and allow the mothers to stay with the children, Weinberg said.

The prosecution law is set to expire in 2016. Weaver plans to fight to keep it in effect. Weinberg and Berlind hope the law ends. In the meantime, Crump, Staubus and other prosecutors plan to continue to pursue cases.

"I think the women we have charged would say the law was helpful to them. Was it a hard time in their life? Yes. But ultimately did it lead to better things for them and their children? Ultimately, I think they'd have to agree to that, too," Crump said.

The state's safety agency promised to survey prosecutors again at the end of the year.

An earlier version of this story misidentified the drug used in addiction treatment.

Reach Dave Boucher at 615-259-8892 and on Twitter @Dave_Boucher1. Reach Tony Gonzalez at 615-259-8089 and on Twitter @tgonzalez.

Birthing beyond state borders

The state Health Department asked hospitals to begin counting cases of babies born to Tennessee families at out-of-state hospitals last summer. In six months, hospitals counted 57 out-of-state cases of neonatal abstinence syndrome, with 40 percent of those transferred back into a Tennessee hospital. The most cases, 35, came from Virginia, and there were 10 in Kentucky.