Alabama Releases 5 Pregnant Women Jailed for Alleged Marijuana Use and Adjusts Policy

“Each of them is legally innocent. The mere fact they’re pregnant or postpartum was sufficient to rob them of their liberty," their lawyer told Jezebel.

By Kylie Cheung | September 26, 2022 | 7:40pm

Justice Politics

Alabama Releases 5 Pregnant Women Jailed for Alleged Marijuana Use and Adjusts Policy

At about six weeks pregnant in May, an Alabama woman named Ashley Banks was arrested and jailed over an unregistered gun and possession of a small amount of marijuana—charges that typically allow for individuals to post bond and leave jail until their trial. But when police learned she’d smoked weed two days earlier—the same day the 23-year-old learned she was pregnant—she was forced to remain in jail unless she entered drug rehab, which wasn’t possible because rehab centers couldn’t take her.

Her lawyers say state investigators pressured her to “admit” to a drug addiction she didn’t have so she could access rehab, pay the $10,000 cash bond for allegedly exposing her fetus to drugs, and leave jail. Banks understandably refused, and was consequently jailed for months. She notably had a high-risk pregnancy because of her family’s history of miscarriage and her diagnosis with a condition that increases the chance of complications. But because the lower-bunk of her jail cell was double-booked, she was forced to sleep on the floor for weeks and struggled with bleeding and fainting spells. After her May arrest, Banks was released on Aug. 25. This was, again, all over smoking some weed.

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Banks is actually one of five pregnant women jailed for alleged substance use that the Etowah County Detention Center has released in the past several weeks, and National Advocates for Pregnant Women (NAPW), the group offering legal representation to these women, says the county has recently updated its policy. While “chemical endangerment of a child” remains a crime, through reviewing court records, NAPW’s Emma Roth told Jezebel she found that pregnant people who face this charge will be required to pay a $2,500 bond and fees for pretrial monitoring, instead of the previously required $10,000 bond and in-patient drug treatment—which often resulted in pregnant people in the county being jailed indefinitely, due to lack of availability of beds in treatment centers.

Despite how the new policy is an improvement in some ways, it will still require pregnant people to be drug tested every 48 to 72 hours—a “ludicrous, blatantly unconstitutional” demand, Roth says, which is especially onerous for those who already have kids to take care of. The new policy will also still result in pretrial jailing of those who can’t afford the $2,500.

“So many women were targeted under this really punitive policy, always, done pretrial,” Roth said. “Each of these people is legally innocent. They have not been convicted of or sentenced for any crime at all, they’re entitled to the presumption of innocence. But the mere fact there have been allegations leveled against them, and they’re pregnant or postpartum, was sufficient for the state to feel entitled to rob them of their liberty.”

Roth added that “there were women we spoke to who said they had just been completely forgotten about by this system, that it was just accepted as a matter of fact that they would sit in jail for months on end, awaiting a rehab bed to open up.”

As Jezebel has previously reported, the pregnant women and new mothers NAPW represents faced jarringly dehumanizing treatment at the Etowah County Jail. In another case, a woman named Hali Burns was arrested days after giving birth to her newborn because she’d tested positive for methamphetamine and Subutex (a medication to treat pregnant people with opioid use disorders) during her pregnancy. Her lawyers said the drug tests were false positives stemming from sinus medication, and she has a prescription for Subutex. In the jail, again, just days after her delivery, Burns’ boyfriend alleged she wasn’t even given “panties or pads,” and “was stuffing paper towels or toilet paper in her pants to stop the bleeding.” He said her young child “keeps asking what [Burns] did wrong and why she can’t come home.” Burns, who was arrested in July, was finally released on Sept. 12.

Three other women NAPW offered legal support to, Jordyn McClain, Olivia Leal, and Jessica Brown, were also released on Sept. 14, 15, and 16, respectively. McClain had been jailed for three months, despite having no diagnosis of a substance use disorder; she had just given birth seven months ago, and missed her other child’s fourth birthday and first day of school while jailed. Brown was jailed for three months, as well, also separated from a newborn and other young children. Leal was jailed for two weeks while nine months pregnant and due to give birth within days—her contractions started during her detention.

Earlier this month, AL.com reported as many as 12 pregnant or postpartum people suspected of drug use had been held in Etowah County Detention Center in August alone. Of the more than 1,700 pregnancy-related criminalization cases NAPW has tracked between 1973 and 2020, Alabama led the nation with over 600 cases. Further, just 2% of Alabama’s population lives in Etowah County, yet the county represents more than 20% of pregnancy-related prosecutions in Alabama, per NAPW.

The Etowah County district attorney’s office did not immediately respond to request for comment.

As for the release of the five aforementioned Etowah County women, Roth told Jezebel their physical freedom from jail is an important step, but their state-inflicted suffering is far from over. Because their criminal cases remain ongoing, they’ll struggle to regain custody of their children who have been separated from them amid the Department of Human Resources’ (Alabama’s “child welfare” agency) investigations of the women.

“Not a single one of our clients is able to sleep well at night, while they remain separated from their children,” Roth said. “All of them have to comply with really onerous surveillance and all kinds of classes, and pay fees. It’s a huge, ongoing battle in order to be permitted to do something as fundamental and essential as parent their own children, who they miss and love more than anything.” According to Roth, the “irony” of the situation is that “criminal prosecutors say this is this is all for the best interests of the children, but this is wreaking havoc upon families, and family reunification would go so far toward protecting the well-being of children.”

One expert told AL.com earlier this month that “separation of mothers from their infants has adverse impacts on infant and child development with ramifications that stretch into adulthood.” Studies have shown incarcerated pregnant people are twice as likely to suffer miscarriages as the general population. Alabama ranks near the bottom in the nation for the well-being of children and maternal mortality.

News about Etowah County’s chronic mistreatment of pregnant and postpartum people comes weeks after the overturning of Roe v. Wade, but pregnancy-related criminal charges long preceded the decision. In all states, self-managed abortion or losing a pregnancy after alleged substance use (or almost any other ridiculous reason, including eating poppyseeds) is all-too-often criminalized by local police departments that misapply fetal homicide laws and other laws. Legal experts have pointed out time and again that pregnancy loss is not a crime, yet, per NAPW’s tracking, criminal charges for pregnancy outcomes have tripled in recent years.

In Alabama, pregnancy loss for alleged substance use can be punished by up to 99 years in prison. Just last year, an Alabama woman was arrested and prosecuted for trying to fill a prescription for pain medication for debilitating back pain she was experiencing, while pregnant with her sixth child.

Abortion bans will inevitably worsen the crisis of pregnancy criminalization—especially because medication abortion can’t be medically distinguished from miscarriage, effectively rendering miscarriage a crime in states that criminalize abortion. Without Roe, all pregnancies are possible crime scenes. “The underlying theory behind these charges is the exact same theory that motivates abortion bans or other restrictions on bodily autonomy during pregnancy—it’s the notion that when somebody becomes pregnant, their rights no longer matter, their liberty no longer matters,” Roth said. “If the only concern of state actors is protecting the health and well-being of ‘unborn children,’ they feel entitled to trample the rights and liberty of pregnant people in the process.”