This morning, Pregnancy Justice and Center for HIV Law and Policy, and Elizabeth Frankel and Valerie Wright of the Maine law firm Verrill Dana, LLP, filed an emergency amicus (friend-of-the-court) brief on behalf of 28 public health experts, advocates, and organizations challenging the imprisonment of an HIV positive pregnant woman in order to protect her “innocent” “unborn child.”
Ms. T, a 28 year-old woman from Cameroon, was arrested in January 2009 for allegedly having false immigration documents. Shortly after her arrest, she learned she was both pregnant and HIV positive. On May 14, 2009, instead of sentencing her to “time served,” which was consistent with the federal sentencing guidelines and the recommendations of her attorney and the United States Attorney’s Office, United States District Court Judge John Woodcock extended Ms. T’s sentence to 238 days, making clear that the sentence was calculated specifically to ensure that she remained incarcerated for the duration of her pregnancy. See Judge Jails Pregnant Woman Until Baby is Born and Behind Bars for Being Pregnant and HIV-Positive.
Judge Woodcock stated: “My obligation is to protect the public from further crimes of the defendant, and that public, it seems to me at this point, should include the child she’s carrying…I don’t think the transfer of HIV to an unborn child is a crime technically under the law, but it is as direct and as likely as an ongoing assault.” Judge Woodcock reasoned that the Federal Sentencing Guideline permits enhanced sentencing for pregnant women and that extended imprisonment would protect her “unborn child. ”
As is often the situation in cases involving pregnant women, Courts feel pressed to make decisions without benefit of full briefing, input from experts or amicus participation. Indeed, uncertain of Ms. T’s due date and how long he would need to extend the sentence to ensure she was imprisoned through her due date, the Judge looked out over the courtroom and said “So maybe we ought to consult with the women here. Any sense of what a safe range would be?”
The Amicus brief filed this morning provided the Court with the expert information unavailable at the sentencing hearings. The brief outlines legal problems with depriving pregnant women of their liberty in order to advance alleged state interests in fetal health and the public health problems with assuming that jails and prisons provide superior or even adequate health care. As an expert declaration filed by Dr. Robert L. Cohen stated: “Based upon my thirty years of experience in the delivery, administration, research, evaluation, and monitoring of medical care in jails and prisons throughout the United States, it is my opinion that it is very often the case that the medical care available to prisoners falls well below that available to non-prisoners.”
Ms. T is being represented by Zachary L. Heiden of the Maine ACLU.
Pregnancy Justice and Center for HIV Law and Policy are grateful to Laura McTighe, Director of Project UNSHACKLE, Community HIV/AIDS Mobilization Project (CHAMP), for her extraordinary help in this effort and the numerous public health experts, advocates, and organizations appearing as amici on this brief, including:
National Women’s Health Network, National Association of People with AIDS, Frannie Peabody Center, Mardge H. Cohen, M.D., Howard Minkoff, M.D., ACT UP Philadelphia, African Services Committee, AIDS Foundation of Chicago, Alliance of AIDS Services – Carolina, American Medical Students Association, Black Women’s Health Imperative, Chicago Women’s AIDS Project, Circle of Care, Community HIV/AIDS Mobilization Project, HIV Law Project, Immigrant Legal Advocacy Project, Liberty Research Group, National AIDS Fund, National Latina Institute for Reproductive Health, Rebecca Project for Human Rights, Twin States Network, Women Organized to Respond to Life-Threatening Disease (WORLD), Women Rising Project, Women Together for Change Project, Jeff Berry, Wendy Chavkin, M.D., MPH, Leslie Gise, M.D., and Sean Strub.
We are pleased to report that the Court granted bail this morning, allowing Ms. T’s release pending appeal in the case. See Jail time cut for pregnant illegal alien and In Search of Justice: Bail Granted for HIV+ Pregnant Woman.