Pregnancy Justice News Release: California Attorney General Xavier Becerra Concludes that Experiencing a Stillbirth is Not the Same as Murder and Supports Court Petition to Free Chelsea Becker

Chelsea Becker remains in Kings County jail charged with murder under California Penal Code §187 for having a stillbirth

On Friday, August 7, 2020, California Attorney General Xavier Becerra filed an amicus (friend of the court) brief stating that California Penal Code §187 does not authorize prosecutors to treat pregnancy losses as crimes of murder, and called for the criminal charges against Chelsea Becker to be dropped. According to the Attorney General, Kings County District Attorney Keith L. Fagundes “misinterpreted the law’s intention” and a “superior court was subsequently incorrect in deciding not to dismiss the charge against her.”

After Ms. Becker experienced a stillbirth, District Attorney Fagundes claimed (without scientific basis) that her methamphetamine dependency problem caused the pregnancy loss. She was arrested and charged with the “murder of a human fetus” under California Penal Code §187. Since November 2019, Ms. Becker has been held in jail on $2,000,000 bail. As the AG explained in his brief, the purpose of §187’s murder law is to punish third parties who attack pregnant women, not to provide a basis for prosecuting and imprisoning women for their pregnancy outcomes. Every California court that has taken up this question has ruled that §187 cannot be used to prosecute people for the outcomes of their own pregnancies even when the claim is that they took an action that ended the pregnancy.

Nevertheless, DA Fagundes has now twice misused the law to charge Adora Perez in 2018 and Chelsea Becker in 2019 in Kings County for murder because they experienced pregnancy losses. Adora Perez, who was charged based on facts virtually identical to those in Ms. Becker’s case, was represented by a court-appointed attorney who failed to challenge the legitimacy of the prosecution of his client. She is now serving 11 years in state prison for having experienced a stillbirth.

Ms. Becker, who was originally represented by the same court-appointed attorney who represented Ms. Perez, is now represented pro-bono by Pregnancy Justice staff attorney Samantha Lee, Special Pregnancy Justice Counsel Daniel N. Arshack of Arshack, Hajek and Lehrman, PLLC in New York City, as well as Jacqueline Goodman of Jacqueline Goodman Law Offices in Fullerton, California, and Roger Nuttall of Nuttall & Coleman in Fresno, California.

Ms. Becker’s attorneys filed a motion in the trial court asking to have the charges dismissed, but on June 4, 2020, the trial court denied that motion. Now, Ms. Becker, still in jail, is waiting for a ruling on two petitions which were filed in early July in California’s Fifth District Court of Appeal. The petitions seek her release from jail and dismissal of the charges. These petitions are supported by two amicus briefs. One is from the ACLU Foundation of Northern California, which in the 1990s successfully challenged nearly identical attempts to misuse California’s murder law to prosecute women for pregnancy losses. The other amicus was filed by the Drug Policy Alliance on behalf of 16 organizations, including the American Academy of Addiction Psychiatry, American College of Obstetricians and Gynecologists, American Society of Addiction Medicine, and the California Society of Addiction Medicine.

The Attorney General’s decision to file an amicus in support of a criminal defendant is a powerful step, that as Becerra explained, demonstrates that he is “committed to seeing Ms. Becker released from jail with the charges against her dropped and the law applied the way it was intended.” The California Attorney General is the chief legal officer for the State of California. His office defends the State when it is sued and is responsible for interpreting the law for the executive branch of the government. Daniel N. Arshack, Special Pregnancy Justice Counsel, explained, “While the AG’s opinion is not determinative, it generally is highly persuasive to the court. We are grateful that the Attorney General has expressed his strong belief that Ms. Becker’s case should be dismissed and that she should be released from jail.”

As noted by the AG, California legislators have repeatedly rejected proposals to address pregnancy and drug use as a crime. Instead, they carefully set up a framework of laws to ensure that pregnancy, pregnancy loss, and drug use during pregnancy are addressed as public health issues and not crimes. “DA Fagundes’ decision to hold Chelsea Becker criminally liable for her pregnancy outcome is unconstitutional, and would open the door for women to be charged with murder for any behavior that could potentially harm their pregnancy,” said Jennifer Chou, Reproductive Justice and Gender Equity attorney at the ACLU Foundation of Northern California. “As the AG’s brief explained, the Kings County prosecutors clearly misapplied California law.”

Pregnancy Justice and the ACLU of Northern California applaud Attorney General Becerra’s commitment to an accurate and just application of California’s criminal law, one that ensures the integrity of the legislative process, the health and rights of pregnant women, and the wellbeing of children and families.

For more information or to set up an interview with legal counsel, please contact: Shawn Steiner, Media and Communications Director Pregnancy Justice | 347.943.8148 |