Can I be charged with a crime if I use drugs while pregnant?
Answer:

Yes, you can be charged with a crime if you use drugs while pregnant but only if you live in Tennessee. As a Jacksonville criminal defense attorney, I have seen the police threaten drug addicted pregnant women with arrest, but that’s the most they can do. Mallory Loyola, a 26 year old Tennessee native, was arrested after both she and her newborn tested positive for the drug methamphetamine. The law, which just went into effect in July of 2014, makes it a crime to take drugs while pregnant, calling it “assault”. It allows a woman to be prosecuted for assault for the illegal use of a narcotic drug while pregnant if the infant is harmed or addicted to the drug. Ms. Loyola admitted to smoking meth days before giving birth.

The sheriff who arrested her said he hoped the arrest would deter other pregnant women from drug use. "Hopefully, it will send a signal to other women who are pregnant and have a drug problem to seek help. That’s what we want them to do, " he said. The law has come under tremendous opposition from both state and national critics, who say that the law will hinder drug-addicted pregnant women from getting help and treatment. I agree. What pregnant woman with a drug problem would knowingly go to State authorities for help, knowing that they could be arrested in the process? And it’s ridiculous for this sheriff (or anyone else for that matter) to think that arresting drug addicted moms would actually deter pregnant woman from using drugs. Drug addiction is not a choice.

The American Civil Liberties Union of Tennessee is actively seeking to challenge the law. “This dangerous law unconstitutionally singles out new mothers struggling with addiction for criminal assault charges”, the legal director said. Just before the Tennessee Governor signed the bill in April, the acting director of the White House Office of National Drug Control Policy said the federal government didn’t want to “criminalize” addiction. “What’s important is that we create environments where we’re really diminishing the stigma and the barriers, particularly for pregnant women, who often have a lot of shame and guilt about their substance abuse disorders”, he said. “we know that it’s usually a much more cost effective treatment and less costly to our taxpayers if we make sure that we’re treating folks”.

The Tennessee Governor released a statement after signing the bill saying the intent of the law is to “give law enforcement and district attorneys a tool to address illicit drug use among pregnant women through treatment programs”. Ms. Loyola was released on $2,000 bail and was charged with a misdemeanor. The law allows anyone charged to use entering a treatment program before birth and successfully completing it afterwards as a defense. But what if a woman does not successfully complete the program? Will they then go to jail? Many drug treatment programs are not successfully completed. Besides, who makes the determination of successful completion? A probation officer? A prosecutor?

Lesson Learned:

Luckily, no such law exists federally or in the State of Florida. Of course, no one likes to hear about crack addicted babies in neonatal wards of hospitals. The medical costs to treat these infants is high and everyone would agree that’s it’s a horrible way to start out life. But this is a terrible law that seeks to punish those with addiction problems, rather than encourage woman to get treatment. After all, what woman would ever admit to needing drug treatment while pregnant knowing that if treatment is not successfully completed that jail or a criminal conviction awaits?

Can I be charged with murder if I sold someone heroin and they overdosed?
Answer:

No, you cannot be charged with murder for the heroin overdose. The actor Philip Seymour Hoffman died of a heroin, cocaine and prescription drug overdose in his New York City apartment on February 2, 2014. This tragic event led to a public outcry that those who sold him these drugs should be prosecuted for murder. And, of course, several people who were known to have sold Hoffman heroin were arrested. Holding a drug supplier criminally responsible for the death of a drug user is though to be supported by many State’s felony murder laws. What is felony murder? As a Jacksonville criminal defense attorney, I represent people charged with felony murder.

The felony murder rule says that if a defendant has committed a felony (say, selling heroin) that causes death (such as by an overdose), the original felony (sale of heroin) is escalated to murder. In some jurisdictions, felony murder, even when the death was utterly unpredictable, carries the death penalty. But the sale of drugs (unlike committing a robbery that ends in a death) does not serve as a basis for a murder charge. This is because the death must have been caused by the defendant’s actions. When a person decides to inject themselves with heroin and then takes other drugs in a manner and dosage that kills them, this is usually considered an intervening cause that breaks the chain of causation and was not reasonably foreseeable by the defendant. In Hoffman’s case, with a history of addiction, rehab and re-addiction – along with the use of other drugs – which the particular dealer or dealers who were arrested did not cause – was the real cause of his death.

The Supreme Court recently decided this exact issue in Burrage v. United States. Federal prosecutors in Iowa argued that Marcus Burrage should be convicted for distributing the heroin that lead to the death of a drug addict, and they won. Burrage was sentenced to 20 years for the heroin death and another 20 years for selling the heroin. Burrage appealed, arguing that the federal government had to show that the heroin sold to the user was more than just a possible cause of his death. Like Hoffman, the drug addict who died in the Burrage case had a mixture of several drugs in his system.

The Supreme Court unanimously reversed Burrage’s conviction, and wrote “At least when the use of a drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable for penalty enhancement under the penalty enhancement provision of the Controlled Substance Act unless such use is a but-for cause of the death or injury” What does this mean? It means the Court set a new standard of causation. Following the decision in Burrage, a prosecutor would have to show that “but for” the dealer’s supply of heroin to Hoffman, he would have lived. That’s a much more difficult case to prove, since he had cocaine and prescription drugs in his system as well.

Lesson Learned:

Although it’s a popular notion, its difficult, if not impossible, to prosecute a drug supplier for felony murder. It must be shown that the drug supplied was not merely a contributing cause, but the only cause of the person’s death. Most drug addicts that overdose have many illegal substances in their system, so it’s hard to prove that ‘but for’ the one substance sold by the drug supplier, the person would have lived. While a drug supplier may be morally responsible, he is not legally responsible for causing the death of someone who uses his product.

Can I get my federal drug sentence reduced?
Answer:

Yes, you can get your federal drug sentence reduced. The U.S. Sentencing Commission recently lowered the offense levels for drug crimes by two levels and made the new law retroactive. That means those convicted and sentenced in the federal system for drug crimes can now apply to have their sentences reduced by about 25 months. This will apply to more than 46,000 inmates. The Federal Bureau of Prisons will notify inmates of their eligibility to apply for a sentence reduction. As a Jacksonville criminal defense lawyer, I have begun the process of helping clients get their federal drug crime sentences reduced. Why is this being done? In large part, to ease the burden of overcrowding of the prison system and to reduce costs. Will all of those serving a sentence for possessing or distributing drugs automatically have their sentences reduced? No. First, a federal inmate must apply for a reduction. Then, the inmates probation officer will re-calculate the inmates current sentencing guidelines as if the new law applied. The application will then come before a judge for review, to decide whether the applicant would be a danger to the community and to determine whether the applicant deserves a sentence reduction. The applicant’s lawyer and the prosecutor will also be involved in the process. No one can be released before November 1, 2015.

What will the judge consider? In my opinion, the judge will look to see if the applicant has any violence in his or her past, the amount of drugs involved and his or her role in the original crimes, to name but a few factors. Low level, non-violent drug offenders serving harsh mandatory minimum 10 year sentences probably stand the best chance to have their sentences reduced. The process will will be like a new sentencing hearing. Expect federal prosecutors to oppose the sentence reduction (since they opposed the new law being passed in the first place)

Lesson Learned:

After many years of poor sentencing policy regarding drug crimes, the pendulum is swinging in the direction of less prison time for these types of crimes, since long sentences do nothing to deter drug crimes or drug addiction. While this sentencing reduction process will not be simple, it will provide relief for thousands who were caught up in the federal system of mandatory minimum drug sentences. While I think these reductions don’t go far enough, at least it’s a start. Lawyers should fight hard for these reductions since the federal government has approved them.