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July 18, 1996

USA Today Endorses Access To Medical Marijuana

July 18, 1996, Arlington, VA: USA Today, the nation's most widely read daily newspaper, has endorsed access to medical marijuana. The endorsement stemmed from a USA Today editorial entitled "Anti-drug focus keeps marijuana from the ill" and came just two days after the newspaper featured a major article on a California ballot initiative that would allow seriously ill patients to use marijuana as a therapeutic agent with a doctor's recommendation.

Calling marijuana "one of the least toxic medical compounds in the world," the editorial cited both marijuana's relative safety when compared to other legal drugs and medicines and decades of scientific and anecdotal research maintaining its medical efficacy.

"It is entirely possible to fight the drug war without harming innocent civilians in the process," concluded the USA Today. "But lawmakers must be careful to choose the right battles. Therapeutic marijuana isn't one of them."

"The statements made by USA Today in support of medical access to therapeutic marijuana should have a positive impact on America's views toward this issue and may translate into a significant number of votes among California citizens in favor of the Medical Marijuana Initiative," stated NORML Deputy Director Allen St. Pierre.

For more information, please contact Dave Fratello of Californians for Medical Rights at (310) 394-2952.

NORML Chapter Places Advertising Billboards On Buses

July 11, 1996, Cleveland, OH: Several buses of the Greater Cleveland Regional Transit Authority will start promoting marijuana law reform thanks to the work of dedicated local activists. After a year long struggle, the Northcoast NORML chapter has paid for a three month advertising campaign to run on the inside and outside of RTA buses.

Northcoast NORML first approached the RTA with their advertising campaign in 1995 at which time the RTA denied the chapter's request because they claimed the public service announcements would promote the illegal use of marijuana. Northcoast NORML refused to accept the RTA's reasoning and brought the issue to the attention of the American Civil Liberties Union (ACLU) of Ohio. After several correspondences between the ACLU and RTA's legal staff, the RTA conceded that NORML's ad was not promoting marijuana use and was political in nature.

According to Northcoast NORML president John Hartman, the chapter's billboards carry two basic messages. The announcement appearing on the tailgate of buses emphasizes the 10 million-plus marijuana arrests that have occurred since 1965 while the billboard displayed on the inside reads: "If you don't care about the people sent to prison for smoking marijuana, at least consider who gets released to make room for them." Hartman adds that the RTA will soon begin displaying prohibitionist billboards to counter Northcoast NORML's message.

Northcoast NORML's billboards began running on area buses this week.

For more information, please contact John Hartman of Northcoast NORML at (216) 521-9333.

Man Sentenced To Probation After Killing Individual He Suspected Sold His Son Marijuana

July 1996, Hartsville, TN: A father was given three year's probation after pleading guilty to killing the man he suspected of selling marijuana to his teenage son. The defendant, Dennis Denham, had been indicted for second degree murder.

Emotions ran high for participants on both sides of the case. At one point, the shooting victim's mother told the court that the defendant could see his children, but added that, "[She has] to go to the cemetery to see [hers.]"

Denham apparently blamed the man for injuries his son sustained in an auto accident while allegedly driving under the influence of marijuana.

"Have we demonized marijuana consumers in this country to such a point that we allow citizens to murder them and get away with it?" questioned NORML Deputy Director Allen St. Pierre.

Law That Allows Citizens To Sue Drug Dealers For Damages Moves Forward In California

July 1996, Sacramento, CA: The California state Senate has unanimously approved a sweeping bill (S.B. 1754) that would allow private parties to sue drug dealers for damages even if the defendant had nothing to do with the specific drugs or incident that caused the damage.

Under the Drug Dealer Liability Act, introduced by Sen. Charles Calderon (D-Whittier) and co-sponsored by Attorney General Dan Lungren, drug dealers could be sued in civil court for any damages caused by the same kind of drug elsewhere in the same city or county, regardless of who actually furnished it, using a radical, new "market participation" liability doctrine. For example, under the provisions of a similar law in Michigan, dealers who can be shown to have sold 650 grams of a controlled substance are liable for injuries throughout the state, while those who sold less than 50 grams can be held liable for injuries in the county where the sales occurred.

Those allowed to sue under the California proposal would include: parents or family members of users; employers of users; medical facilities, insurers, or other institutions that fund drug treatment programs; individuals exposed in utero to an illegal substance; and persons injured as a result of the willful, reckless, or negligent actions of an individual substance user.

"It's a way of fighting [drug dealers] by hitting them right in the pocket," said actor Carroll O'Connor, who has lobbied for the measure.

Defendants could be sued if they (1) provided the drug or (2) had "as a pattern" participated in the market for that drug within the same city or county. The latter is defined to mean that they provided the same illicit drug on at least two instances, with at least one conviction. Cultivation of under 25 marijuana plants would not count as an offense.

"When is enough enough?" asked Mark Kappelhoff, legislative counsel of the American Civil Liberties Union (ACLU) in Washington, D.C., in a recent Wall Street Journal article. Kappelhoff maintained that adding civil judgments to criminal prosecution and civil forfeiture could be tantamount to constitutionally cruel or unusual punishment or double jeopardy.

The California state assembly is expected to approve the measure by the end of August.

For more information, please contact Dale Gieringer of California NORML at (415) 563-5858.

PBS Special To Focus On Human Rights Violations And The Drug War

July 1996, New York, NY: PBS is slated to air a half hour broadcast entitled "Human Rights and the War on Drugs." The show will feature footage from a public policy forum organized by the Partnership for Responsible Drug Information (PRDI) - a New York think tank intent on fostering open and informed discussion on drug policy - as well as interviews with Drug Czar Barry McCaffrey, Prison Life Magazine Editor Richard Stratton, and Jamie Fellner of Human Rights Watch.

The segment is scheduled to air during the period of July 18 through July 24.

For more information, please contact the Partnership for Responsible Drug Information at (212) 362-1964.

[Portland NORML notes - "Human Rights and the War on Drugs" will reportedly be aired by Oregon Public Broadcasting, KOPB in Portland, Channel 10, at 6 pm Wednesday, July 24 - an hour and a half before the monthly Portland NORML meeting.]



Regional and other news

Body Count

Seven of the 10 felons sentenced by Multnomah County courts in the most recent week received jail or prison terms for controlled-substance violations, according to the "Portland" zoned section of
The Oregonian, delivered to subscribers in the central metropolitan area. (July 18, 1996, p. 9, 3M-MP-SE). The total of seven includes one person whose probation was revoked "for attempted possession of a controlled substance." Since that explicitly means the fellow is going to jail as a result, even though his probation was also revoked for other, non-drug offenses, it seems most fair to include him in the body count. That brings the total so far this year to 201 out of 370, or 54.32 percent.

Portland NORML Meeting July 24

The Portland chapter of NORML holds its "fourth Wednesday" meeting 7:30 pm July 24 at the Phantom Gallery, 3125 SE Belmont St. The message phone is (503) 227-2478. On the agenda is the new OCTA campaign, and the 1996 Hemp & Music Festival at Lumberyard Park in Eugene on Aug. 11.

Butt Man Versus Reefer Man

Butt Man Has A Rival: Watch Out For Reefer Man

Dallas Morning News, "Political Briefs," July 18, 1996

WASHINGTON -- Presumptive Republican presidential nominee Bob Dole is trying to make rising drug use an issue in the presidential campaign, saying President Clinton is to blame. And the Democrats' Butt Man now has a rival. The GOP-sponsored Reefer Man made his campaign debut Wednesday outside a Dole appearance at a high school here. Minnesota GOP Chairman Chris Georgacas heralded Reefer Man -- a slightly shorter version [adb--I guess it's cuz there's no filter] of the costumed 7-foot Butt Man -- as a symbol of "the failures of the Clinton administration to address the explosion of illicit drug use ... and to their alleged tolerance of drug use by administration staffers." Butt Man has been at Mr. Dole's heels for weeks, mocking the Republican candidate's contention that cigarettes are not necessarily addictive.


Alan B. writes, "What would be fun would be to have one of the 8 medical mj patients pose with Reefer Man at some of the highly covered press events."

Hmmm. Clinton is likely to show up in Portland between now and November. This would be a good time to lay plans for a little consciousness-raising street theater, friends . . . .

Portland's Old Town Drug-Free Zone - Send In The Feds

According to a report titled "Police Bureau gets federal grant" in the July 11 Oregonian (p. B2), "A grant totaling more than $1.8 million" will include "$300,000 on Operation North Star, an effort to eliminate street drug dealing in Old Town and on the transit mall."

City officials continually trumpet how the "Drug-Free Zone" in Old Town has been such a great success. This item reveals the truth - that people are more likely than ever to be accosted by street dealers in Old Town and downtown. (The economic laws of prohibition mean that invariably, the dealers offer cocaine or heroin, but never pot.) Do you think $300,000 will eliminate drugs from Old Town or downtown? So far, by driving a lot of dealers out of Old Town, the police have only spread the trade to the nearby transit mall. That $300,000 will lead to tens of millions of dollars in court and incarceration costs for the city, county, state and federal government while providing a price support to the vast majority of more discreet dealers who escape arrest or enter the trade in the future. More people will be attracted to the drug trade, more people will be introduced to drugs, and the results will be entirely counterproductive.

Would more people use these drugs if they were available to adults through licensed medical practitioners? An evening news report by Portland's NBC affiliate, KGW Northwest NewsChannel 8 on Tuesday, July 16, reported that one local agency dealing with heroin abusers had seen its caseload increase from 100-plus to 900-plus in the past year. That would suggest that current policies are just making things worse. One would think there would certainly be a lot fewer profit-motivated people selling such drugs if these substances were placed back under the control of the medical profession.

Civil Rights In Portland Contingent On Drug Laws

Public drumming circles have become increasingly popular in Portland recently. As noted in a story titled "Coalition hopes to find harmony on late-night drumming issue" in the July 19, 1996 Oregonian (p. C2), "Drummers ... are not the kind of organized group that applies for permits. The circles are a spontaneous, and for some, a religious gathering." For some reason, however, the police have begun to break up such drum circles every chance they get, usually citing noise ordinances. (Since the government sponsors ear-splitting auto races at its Delta Park Raceway, and countless other noisy disturbances on its own, the double standard should be obvious to any Portland resident.) Based on evidence not yet cited by the media, however, the police and Portland Parks Bureau have apparently identified drum circles as a hotbed of "drug" use. The same Oregonian article reports:
"Ann Krohn, Portland Parks security coordinator, told drummers that the noise and, more importantly, the drug use that seems to follow drum circles around, have been a problem for a while."
Portland NORML would suggest to city officials that the public has a right to use public parks. If the police want to arrest illegal-drug users at such gatherings, they have a legal right to do so. Since these events take place out in the open, they should not have much problem, if indeed such illegal-drug use really happens. Police can even use their unconstitutional powers to exclude people from parks without a hearing for alleged drug use. But public officials do not have a right to engage in "prior restraint" and to prevent such groups from gathering spontaneously, especially when officials' concerns are based on unsubstantiated McCarthyist accusations. Even if police or parks officials could cite any credible evidence of prevalent drug use at such sessions, which they have not done so far, it is patently totalitarian to abridge people's right to gather peaceably. Remember those words quoted above, "more importantly" - the issue isn't waking the neighbors. It's "drugs," and how public officials use them to tighten the grip of the biggest police state (or rather prison state) the world has ever known.

Save Our City (Nightclub)

The same technique of using the drug laws to stifle social non-conformity is being played out in the case of the City Nightclub, at 13 NW 13th Ave., a very popular gay-oriented all-ages, no-alcohol dance club. As reported in Reversal of Fortune, in PDXS newspaper (June 28, 1996), the owner of the City Nightclub, Lanny Swerdlow, wants a chance to rebut police charges that drugs are sold on the premises. The city of Portland and Multnomah County Circuit Court Judge George Joseph instead have just taken the word of police, and are about to close the City Nightclub under the terms of Portland's "drug house" ordinance. Nobody is charging that the owner or his employees sold drugs - only, apparently, that their enforcement efforts did not meet some unwritten standard other nightclubs are not held to. In fact, as PDXS reported in a previous story, Save Our City (May 24, 1996):
Owner Lanny Swerdlow contends that the police violated a written agreement to notify him about any suspected drug dealers, and to work with him to reduce such transactions. He also wonders why the police did not try to shut down other all-ages clubs which have had worse problems in the past. Last year, for example, the Quest nightclub was the scene of numerous gang-related fights, which included stabbings, at least one shooting, and a full-blown riot which required a massive police response to stop. Instead of closing the Quest, however, the police helped line up extra security for the club, which is still in business. Swerdlow also suspects that the police have targeted his club because of his outspoken support for gay rights, including the production of numerous cable access television programs on the issue.
So it's come down to this - police can now shut down anyone's business without a trial because of alleged actions by third parties. Are we winning the drug war yet?

The Myth Of Gang Related Crack Distribution?

According to a study titled "Street Gangs and Drug Sales in Two Suburban Cities" recently published by the National Criminal Justice Reference Service and posted on the World Wide Web at, the stereotyped association between gangs and drugs may have been overhyped by the mass media.

Here are some interesting excerpts:

Series: NIJ Research in Brief, Published: September 1995, 24 pages, 53,366 bytes
by Cheryl L. Maxson, Ph. D.

Issues and Findings

Discussed in this Brief: The results of a study to determine the level of street gang involvement in drug sales arrests in two Los Angeles suburban cities from 1989 to 1991. Results are compared with those from an earlier study of gang involvement in cocaine sales based on arrest incidents in south-central Los Angeles between 1983 and 1985. Police departments that participated in this study also provide their views of the findings.

Key findings: The statistical connection between street gangs, drug sales, and violence was smaller than anticipated. Specific findings include the following:

Target audience: Law enforcement, prosecution, probation, city government officials, social service agency practitioners, and researchers.

'Partnership To Re-Edit TV Commercials'

The New York Times, addenda to "Advertising People & Accounts," Friday, July 12, 1996

The Partnership for a Drug-Free America has agreed to re-edit television commercials that had been labeled "patently homophobic" by the Gay and Lesbian Alliance Against Defamation.

The commercials are part of a public-service campaign against heroin use that was introduced last month. They featured a young addict describing how after losing his job, he had to "have sex with men for money to support my habit."

In a letter to the Partnership, the gay and lesbian organization, known as Glaad, urged the spots be withdrawn for suggesting that "if there is one thing worse than being an addict, it's being a homosexual."

After initially declining that request, Richard Bonnette, president and chief executive of the Partnership, said the spots would be re-edited to omit the references to prostitution. "A perception of offense, however unintended," he wrote in a letter to Glaad, may "dilute or interfere with our basic message" of keeping children from drugs.

Alan Klein, news media director at Glaad in New York, said, "We're very pleased that the Partnership has taken the concerns of the gay and lesbian community seriously."

Tylenol Kills 33 Children (Pot 0)

Where's the Partnership for a Drug-Free (sic) America when you need them? According to a report in The Oregonian on July 9, 1996 titled "Tylenol overdoses can kill children" (p. A10), "At least 33 children younger than 13 died of acetaminophen poisoning between 1970 and 1991, according to a Food and Drug Administration report, and 152 others suffered serious consequences ranging from hospitalization to permanent disability." The makers of Tylenol, Johnson & Johnson (through its subsidiary, McNeil Consumer Products Company), is one of the biggest contributors to The Partnership for a Drug-Free America. According to an article titled "The Partnership: Hard Sell in the Drug War," published in the March 9, 1992 issue of The Nation (and posted in Portland NORML's Web pages at Johnson & Johnson gave The Partnership $110,000 just in the years 1988 through 1991.

Pregnant Women Imprisoned For Drug Use?

July 17, COLUMBIA, S.C. (Reuter) - A South Carolina Supreme Court decision that pregnant women who use drugs can be prosecuted for child abuse alarmed legal and medical circles Tuesday.

The state chapter of the American Civil Liberties Union (ACLU) said it would ask the high court within two weeks to reconsider the case, while a pediatrician expressed fears of irreparable harm to doctors' relationships with patients.

"It has forced trial courts to consider constitutional questions in situations where they didn't have to before," said Steve Bates, executive director of the state ACLU.

On Monday the court split 3-2 in its ruling and marked the first time a state high court approved such prosecutions.

Top courts in Florida, Kentucky, Nevada and Ohio have all reached opposite conclusions in deciding similar cases.

Under the South Carolina ruling, women could be punished by up to 10 years in prison on misdemeanor charges for abuse to a fetus. Illegally obtaining a third-trimester abortion would bring a lesser penalty of two years in prison.

Dr. Nelson Weston, a pediatrician and president-elect of the S.C. Medical Association, said doctors, who will be obligated to report suspected abuse, worry some patients would be less likely to be honest about their medical history.

"It does put something between the physician-patient relationship and is on the whole harmful," Weston said.

The S.C. Supreme Court said a healthy, viable fetus can be considered a "child" or "person" under state law and should, as a result, be afforded legal protection.

"South Carolina law has long recognized that viable fetuses are persons holding certain legal rights and privileges," Justice Jean Toal wrote for the majority.

"The consequences of abuse or neglect which take place after birth often pale in comparison to those resulting from abuse suffered by the viable fetus before birth," she wrote.

But S.C. Chief Justice Ernest Finney wrote in a dissenting opinion the word "child" should be interpreted as "a child in being and not a fetus." He cited a 1994 case saying words should be interpreted in the context of an entire statute.

The ruling came in the 1992 case of Cornelia Whitner, who was sentenced to eight years in prison for smoking crack cocaine while pregnant and giving birth to a baby who tested positive for cocaine.

Whitner served 19 months but a lower court freed her after ruling the state's child abuse laws do not apply to a fetus. She may now have to serve the remaining six years of her term, and four other women also might be sent to prison on similar charges, said Lynn Paltrow, a New York-based Center for Reproductive Law and Policy attorney who represented Whitner.

Paltrow said the ruling "flies in the face of every other court in the nation" and "ignores the fact that every leading medical group has concluded that throwing mothers in jail will hurt women, their babies and their families."

But S.C. Attorney General Charlie Condon, who argued the case against Whitner, praised the ruling and said he would now instruct prosecutors and social workers to begin monitoring and punishing pregnant women who abuse drugs.

[Verbatim. A somewhat different report on the same story ensues.]

"Drug-Pregnancy Case Prosecutions OKd in S.C."

Los Angeles Times, July 17, 1996

In an unprecedented action, South Carolina's Supreme Court has ruled that a woman can be prosecuted for child abuse if she takes drugs during pregnancy.

The court said a healthy, viable fetus can be considered a "child" or "person" under state law, and should, as a result, be afforded legal protection.

The 3-2 ruling Monday marked the first time a state high court has approved such prosecutions. Top courts in Florida, Kentucky, Nevada and Ohio have all reached opposite conclusions.

The decision reinstates an eight-year sentence given to Cornelia Whitner, whose son, now a healthy 8-year-old, tested positive for cocaine after he was born. Her lawyer said she would appeal.

Writing for the majority, Justice Jean Toal said state child abuse law and previous court rulings clearly consider a viable fetus a person. Since 1984, South Carolina prosecutors have been able to charge other people with injuring or killing a woman's viable fetus.

State Atty. Gen. Charlie Condon said he would instruct prosecutors and social workers to begin monitoring and punishing pregnant women who abuse drugs.

Critics of the ruling, including advocates for women and civil liberties, said it undermines women's health and would discourage pregnant addicts from seeking medical help. Lynn Paltrow, a lawyer for the Center for Reproductive Law and Policy in New York, said: "If you were a pregnant woman, would you talk honestly or go for help if you think you could go to jail?"

In a dissenting opinion, Justice James E. Moore said the ruling would make women liable for criminal prosecution for anything that could be construed as dangerous to a fetus. "Is a pregnant woman's failure to obtain prenatal care unlawful? Failure to take vitamins and eat properly? Failure to quit smoking or drinking?" Moore wrote.

Under this ruling, he said, a woman would be better off to illegally abort her third-trimester fetus and face a two-year sentence rather than give birth to a baby after taking drugs and face a 10-year sentence for child abuse.


In his excellent new book about the War on Some Drugs, "Smoke and Mirrors" (Little, Brown and Co.), former Wall Street Journal reporter Dan Baum wrote about this particular case with regard to the "crack baby" phenomenon:

Pregnant women would pay the highest price "for transgressing the rights of others" in Bennett's War on Drugs. No other group of drug users was treated as harshly by the media, the legislatures, or the courts. No other group took as much blame for the failure of the nation at large to act with reason and compassion. Having turned its wrath variously on Negro junkies, teenage potheads, yuppie coke dabblers, and black crack dealers, the Drug War now would elevate pregnant drug users---often poor, uneducated, and unable to get treatment---to Public Enemy Number One.

The proximate roots of the "crack baby crisis" were in 1981, when federal cuts in Medicaid stripped more than a million poor mothers and their kids of access to medical care. Within a few years, half of all African-American women had access to poor prenatal care or none at all, and the effects showed up at once. By 1984, their infant mortality rate had noticeably worsened for the first time in twenty years---and this was a full year before crack appeared. The number of uninsured child-bearing women in California exploded by almost half between 1982 and 1986. And even those who qualified for public assistance weren't guaranteed access to care. Twelve of the state's fifty-eight counties had no doctors at all willing to accept Medicaid patients. Flu, infections, and pneumonia killed impoverished American babies in ever-greater numbers.

And then crack arrived on the scene.

Crack is bad news for pregnant women and their babies. Like men, women on crack binges neglect everything else---sleep, nutrition, safety, and their health in general. They tend to smoke cigarettes, drink alcohol, and use other drugs to moderate the intense highs and lows of crack.

Their babies show the effects . They are frequently premature, and on average smaller and lighter, with smaller heads. When suddenly deprived of cocaine they alternately howl and drop into deep sleep. At one Washington, D.C., hospital where the average neonatal stay was three days in 1989, babies born to crack-using mothers stayed an average forty-two days.

By 1989 scientists had had four years to study the phenomenon of "crack babies" and some were backing off from their initially alarming reports. Ira Chasnoff, the Chicago doctor whose 1985 article in the New England Journal of Medicine started the crack-baby panic, now cautioned that crack was only a small part of the problem for small, undernourished, and sickly babies. Pregnant women are sixteen times more likely to use alcohol than crack, he wrote, and unlike cocaine, alcohol has proven fetus-damaging effects. Chasnoff and other researchers cautioned that the lives of poor, crack-using women were bad for babies in so many ways that there was no way to isolate crack as the primary cause of their infants' health problems. Poor women have always birthed smaller and sicker babies, and the sharp increase in the number of poor, uninsured women was certain to boost the number of ailing newborns. Prenatal care---and the insurance to pay for it---was and is a better predictor of a newborn's health than whether the mother smokes crack. "In the end," Florida health officials concluded in 1985, "it is safer for a baby to be born to a drug-abusing, anemic, or a diabetic mother who visits the doctor throughout her pregnancy than to be born to a normal woman who does not." The Yerkes Primate Research Center in Atlanta tried to isolate cocaine's effects, administering a pure cocaine intravenous drip to rhesus monkeys for the entire duration of their pregnancies. Their babies were unaffected. Researchers of human "crack babies" furthermore found that the effects of cocaine wore off within a few months and that such babies who were well fed, loved, and properly stimulated could recover completely.

These were not, however, messages even the medical community wanted to hear. Research papers trumpeting the fetal dangers of cocaine were eleven times more likely to be published in professional journals than those claiming few or no harms, according to the British medical journal The Lancet, which analyzed all the "crack baby" studies submitted to the Society of Pediatric Research during the eighties. Moreover, the "negative" studies were better, controlling more effectively for other fetus-damaging factors and taking more care to verify cocaine use, The Lancet found.

Yet the myth of the "crack baby" grew ever larger. Syndicated columnist Charles Krauthammer dismissed "crack babies" in 1988 as a "biologic underclass whose biological inferiority is stamped at birth." Boston University president John Silber criticized "spending immense amounts on crack babies who won't ever achieve the intellectual development to have consciousness of God." The New York Times declared "crack babies" unable to "make friends, know right from wrong, control their impulses, gain insight, concentrate on tasks, and feel and return love. " Even Rolling Stone condemned "crack babies" as "like no others, brain damaged in ways yet unknown, oblivious to any affection."

Reporters sent out to write "crack baby" stories sometimes got their facts right without knowing it. After forty-odd inches of horror stories of low-income women giving birth to "crack babies," the Wall Street Journal, in a typical July 1989 front-page article, let drop that "their mothers aren't all low income. Linda, an impeccably dressed 34-year- old, now looks more like the accountant she once was than a recovering addict who once had a $2,000-a-week crack habit." Turns out, the Journal reported, "her son was born healthy." No explanation was offered as to why a woman smoking $2,000 worth of crack a week can give birth to a healthy baby. And no connection was made to the fact that, unlike every other mother in the article, Linda is an impeccably dressed accountant who likely had health insurance and proper care.

Getting poor women to stop using drugs during pregnancy wouldn't have guaranteed healthy babies, but it certainly would have helped. Even if the effects of drug exposure in utero are relatively short-lived, the home of a crack addict is no place for a baby to grow up. Infants of crack users frequently show up in the hospital again, dehydrated, underfed, filthy, and sometimes injured. If only for the sake of babies after they are born, getting pregnant women off drugs would have been not only humane, but a genuine bargain. The cost of caring for babies neglected and abandoned by crack-using parents was estimated in 1989 in the hundreds of millions of dollars a year.

Yet the federal government refused to pay for residential drug treatment for the poor because it classified drug abuse as a mental illness, and under Medicaid rules that was a state responsibility. The states were similarly unwilling or unable to provide care. Of the various drug- treatment programs in New York City in 1989, 54 percent refused pregnant women, 67 percent refused pregnant women on Medicaid, and 87 percent specifically denied treatment to Medicaid women dependent on crack. Only one hospital in the entire Chicago metropolitan area had a residential treatment program for pregnant addicts, and the program had only two beds. The state of Indiana had only sixteen beds for the treatment of pregnant addicts. Nearly a third of the women living in California had no prenatal care at all, let alone treatment for prenatal drug abuse. "We seem more willing to place the kid in a neonatal intensive care unit for $1,500 or $2,000 a day, rather than put $1,500 into better prenatal care," one psychiatrist complained to Time.

Jennifer Johnson, a black twenty-three-year-old mother of three living in Seminole County, Florida, tried several times during her fourth pregnancy to get treated for her cocaine addiction. "I thought that . . . if I tell them I use drugs they would send me to a drug place or something," she later testified. Alas, there was no "drug place" for her in Seminole County. What there was instead was jail, and the confiscation of her newborn.

When she delivered her baby on January 23, 1989, the attending doctor recorded that the baby "looked and acted as we would expect a baby to look and act." ButJohnson told the doctor she had used cocaine during the pregnancy, and urine tests on mother and child bore that out. The hospital reported the birth of a "crack baby" to a state childprotection agency, which in turn called the local sheriff, who ordered Johnson's arrest.

Assistant state's attorney Jeff Deen had been waiting for just such a case to test a new prosecution tactic. Deen was fed up with seeing pregnant women get away with abusing their unborn children by using drugs. When Deen heard about Jennifer Johnson, he decided to charge her with delivering cocaine to a minor. Courts throughout the country had held to the legal doctrine---which lies at the heart of abortion rights---that a fetus is not a person in the eyes of the law. But Deen had a new argument: In the sixty seconds between the baby's birth and the cutting of her umbilical cord, Johnson had "delivered" cocaine to her baby through the cord.

Judge 0. H. Eaton Jr. of the Seminole County Circuit Court declared himself "convinced" and convicted Johnson, sentencing her to a year of house arrest and fourteen years probation. Jennifer Johnson thus became the first woman to be convicted of the special crime of using drugs while pregnant. The Court of Appeals for the Fifth District affirmed her conviction.

Given Johnson's repeated attempts to find treatment for her drug abuse, Eaton's decision seems particularly cruel. "Pregnant addicts . . . have a responsibility to seek treatment," he ruled. The same judicial reasoning applied in the 1988 prosecution of a heroin addict in Butte County, California, who was convicted of birthing a drug-tainted baby after making Herculean efforts to get treatment. For months, she traveled 130 miles round-trip to a private methadone clinic that charged $200 a month. When her car broke down, she hitchhiked. When her money ran out, the clinic stopped treating her, even knowing she was seven months gone. Visibly pregnant, she asked several doctors and clinics in her area to help her, but none would do so. Twenty-four hours after giving birth, the district attorney confiscated her baby and charged her. "I don't see people making a choice unless you force them," he explained.

As has often been the case in the War on Drugs, the drug warriors wanted it both ways. Drugs are immoral, Bennett's drug office was saying at the time, because they "enslave" people and "take away their ability to function as free citizens." Yet when people fall into the "slavery" of drug use, they are prosecuted for making a bad "choice."

It is no accident that the first woman prosecuted for prenatal drug abuse was black. During a single month in 1989, Ira Chasnoff and his colleagues collected urine samples from every pregnant woman who visited a public health clinic or private obstetrician in Pinellas County, which contains St. Petersburg and is the fourth most populous county in Florida. They found that equal percentages of both black and white women---about 15 percent---used drugs during pregnancy. But the black women were ten times more likely than the whites to be reported to authorities for drug use. And the poorest women---with incomes of less than $12,000---were seven times more likely to be reported than those earning more than $25,000. Private hospitals and obstetricians weren't about to intrude on their paying customers' privacy with a drug test, but public hospitals often were required to do so. Typical was South Carolina, where one characteristic used by public hospitals to identify "probable drug users" for testing was "no prenatal care or late prenatal care (24 weeks)." In South Carolina, Medicaid doesn't cover prenatal care before nineteen weeks.

"If these mothers were walking away from treatment, I might feel differently," said the director of Family and Children's Services in San Francisco. "But they are not walking away from treatment. They are walking away from waiting lists."

With drugs at the top of every pollster's list, the country walked away from treating pregnant users. In one national poll, almost half thought prenatal drug abuse should be a criminal offense. Which perhaps isn't surprising, given such headlines as (in the Washington Post) CRACK BABIES: THE WORST THREAT IS MOM HERSELF and SHE SMOKED CRACK, THEN KILLED HER CHILDREN. Senator Pete Wilson of California in Iggo asked Congress to give treatment funding only to states that make it a crime to give birth to a drug-tainted baby, a classic Catch22: few pregnant women would seek drug treatment in a state where doing so invited jail and loss of the baby. In Florida, where such a law was already on the books, doctors complained to the St. Petersburg Times that pregnant women withheld important information about their drug use "because word had gotten around that the police will have to be notified." San Francisco deputy city attorney Lori Giorgi began noticing an increase in "toilet-bowl babies"---born at home or in secret. "They're afraid their babies will be taken away," she concluded.

If they birth them at all. In one Washington, D.C., case, a woman "miscarried" days before appearing before a judge who'd threatened to jail her because he thought she was using drugs while pregnant. Researchers reported being told often about such abortions. This is particularly ironic, since the movement to prosecute drug- using mothers gets much of its steam from the anti-abortion movement. Such prosecutions create a legal division between mother and fetus that doesn't exist elsewhere in the law. If a woman can be prosecuted for drugging her unborn baby, why not for killing it?

Widow Of Slain Oxnard Officer Plans To Sue City

[Collateral Casualties in the War on Some Drugs]

Los Angeles Times, Tuesday, July 16, 1996 By Scott Hadly, Special to The Times

Court: James Rex Jensen Jr. was shot by his SWAT team partner. His wife, Jennifer, at first said she blamed no one. Now her lawyer says Jensen's partner, police are at fault.

The widow of slain Oxnard Police Officer James Rex Jensen Jr. has notified the city that she intends to sue over the shooting death of her husband, killed March 13 by a fellow officer in a botched drug raid.

Jennifer Jensen insisted after the shooting that no one was to blame. Her lawyer now says the department and Jensen's partner are at fault, contradicting official accounts that indicate the officer's actions contributed to his own death.

Police said Jensen unexpectedly left his position in a bedroom during the chaotic drug raid, surprising his partner and mentor Sgt. Dan Christian in a smoke-filled hallway. Christian mistook him for a gun-wielding suspect and shot the officer three times in the side of his chest.

It didn't happen that way, said Los Angeles lawyer Edward Steinbrecher. "He was shot three times in the back while he was still in the bedroom."

Steinbrecher on Monday submitted a wrongful death claim, the first step in filing suit against the city.

In the days following her husband's death, Jennifer Jensen expressed only forgiveness, saying in an interview with The Times that "there is no blame."

The Jensens were married for seven years and have two daughters, ages 3 and 6. The pair went through a difficult time in 1995, with Jennifer Jensen filing for divorce, but they reconciled three months before the shooting.

During her husband's funeral, Jennifer Jensen made a point of showing that she bore no ill will toward Christian, who physically supported her and held her hand during the emotional ceremony.

"Dan and I are in this together," she said later. "There will be a very special bond between us for the rest of our lives."

However, Steinbrecher said that Jensen's widow made those statements without knowing the facts of the shooting.

"She was talking from an emotional level," he said. "She was ready to forgive those who made the mistakes, but now it's time for justice. She wasn't in the position to be able to judge facts, because she didn't know the facts. That's up to a jury to decide."

Jennifer Jensen remains close to Sgt. Christian and his wife, Steinbrecher said, although the lawsuit may create a rift in the friendship. She could not be reached Monday for comment.

"I don't know if it's awkward for her," Steinbrecher said, adding that the issue could not be avoided. "He is responsible. He did shoot her husband and kill him."

Since the shooting, the department has conducted an internal investigation--even staging a reenactment of the incident.

In an interview last week, the department's Special Weapons and Tactics leader Cmdr. John Crombach said the SWAT team has gone over its tactics and training and reviewed how it staged the incident in minute detail.

Crombach said the review showed that the team had a "good solid plan." He said he was still unable to say exactly what went wrong.

"There isn't a day that goes by that I don't think about it," Crombach said. "It's clear that something went sideways. I just don't think we can say what that was at this time."

The raid, on a condominium in a residential neighborhood near the Port Hueneme Navy base, was part of a drug sweep of 16 homes and businesses in five cities that concluded a two-year investigation.

According to police reports of the incident, Jensen seemed to have made the mistake that led to his death.

Shortly after throwing a "flash-bang" diversionary grenade in the hallway of the condominium, Jensen reportedly rushed upstairs ahead of his team and into a bedroom. Then--against standard tactics that call for officers to "take and hold" their positions--Jensen stepped out of the room and into the hallway.

Although only a few feet away, Christian could not identify his partner through the smoke and mistook him for an armed suspect.

But attorney Steinbrecher said Jensen did everything by the book and did not come out of the bedroom.

At work on Monday, Sgt. Christian said he could not comment on the matter.

Both Oxnard Police Department officials and Steinbrecher said they were anxiously awaiting a detailed investigation now being conducted by the district attorney's office.

Deputy Dist. Atty. Richard Holmes, who is in charge of the Jensen shooting investigation, said it will be several weeks before his report is complete, and would not comment further on the case.

When the report is done, the Oxnard Police Department will conduct an administrative review of the district attorney's investigation to determine if further internal inquiry is necessary, said Assistant Police Chief Tom Cady.

"We are anxious to see their report and review what [it] has to say," Cady said.

Steinbrecher said he expects the report will detail a litany of mistakes, saying the SWAT team went into the condominium with a "cowboy attitude."

"What if it was a drug dealer, or a drug dealer's mother?" he said. "That doesn't give them a right to shoot anything that moves. . . . I've talked to SWAT people around the country and there isn't anybody that doesn't feel that Officer Jensen was killed needlessly."

Last year, Steinbrecher represented an Oxnard man paralyzed when his Subaru Brat overturned. He won $1.7 million in damages, assessed against both the auto maker and the city of Oxnard, which was faulted for the layout of the road.

The Jensen case was another example of negligence, he said.

"Our goal is justice for the Jensen family and to make this an example of what not to do," Steinbrecher said. "Maybe we can save some lives by that."



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