For immediate release (updated October 2022)
NEW YORK — After Pregnancy Justice learned that the Etowah County, Alabama, District Attorney was imposing unconstitutional bond conditions on all pregnant women and new mothers charged with “chemical endangerment of a child” and filed habeas petitions on behalf of two clients, a new policy is now in effect that will result in fewer indefinite and unlawful detentions. Pregnancy Justice and local partners have secured the release of nine women as they await trial, but several remain detained.
Pregnancy Justice clients Hali Burns, Ashley Banks, and Jordyn McClain as well as Olivia Leal and Jessica Brown, whose cases we supported, spent months in jail separated from their young children without in-person visits, as the jail doesn’t allow them, before we were able to secure their release. Pregnancy Justice has also learned that at least two other women have been granted new bond conditions thanks to the policy change.
Until Pregnancy Justice’s involvement, Etowah County held all of the women on the same two unconstitutional bond requirements based on their claimed interest in protecting “unborn children”: $10,000 cash bond and inpatient drug treatment, even before they were assessed for substance use disorder. They remained indefinitely jailed before trial because no treatment beds were available. In Ms. Banks’ case, she was found ineligible for inpatient drug treatment because she did not have a substance use disorder but still remained jailed for three months during her high-risk pregnancy.
Although the new policy is a significant improvement, the women will still be required to pay a $2,500 bond and fees for pretrial monitoring. These fees could still result in pretrial detention of women who cannot afford them. All pregnant women will also have to be drug tested every 48 to 72 hours — an onerous and unconstitutional requirement.
Pregnancy Justice started the Etowah County Jail Pregnant/Postpartum Relief Fund to collect funds to pay for local counsel for the women’s ongoing criminal cases, court-mandated monitoring, drug testing, and other fees.
“Pregnant women and new mothers should never have been unconstitutionally detained in the Etowah County Jail for a single day, let alone for months on end,” said Emma Roth, Staff Attorney with Pregnancy Justice and lead attorney on Pregnancy Justice’s Etowah cases. “While we’re thrilled they’re finally being released, the trauma inflicted on them and their young children from their prolonged separation can never be undone. Etowah County’s policy change is a meaningful first step, but Pregnancy Justice will not stop fighting until substance use and pregnancy is treated as a matter of public health, not a reason to put mothers behind bars.”
Ms. Burns was released on September 12 after two months of unlawful pretrial detention. She was arrested in the hospital six days after giving birth to her second child in July after she tested positive for substances during pregnancy. The test results can be attributed to legally-prescribed medication. While incarcerated, she had no in-person visits with her newborn and toddler, was denied pads for postpartum bleeding, was denied postpartum medical care, and suffered from severe depression. Pregnancy Justice represents Ms. Burns with pro bono counsel Morgan Cunningham, Matthew Bailey, and Martin Weinberg.
Ms. Banks was released on August 25 after sleeping on a jail floor for three months during her high-risk pregnancy. She was arrested in May when the police found a small baggie of marijuana in her car and found out she was pregnant. Her medical concerns were initially ignored before she was rushed to the hospital twice in shackles. Her family’s bond payment was rejected because her bond conditions required her to go to inpatient treatment, even though a court-ordered assessment found she did not qualify because she does not have a substance use disorder. Ms. Banks was separated from her 3-year-old son during this ordeal. Pregnancy Justice represents Ms. Banks with pro bono counsel Morgan Cunningham and pro bono counsel Jade Sipes, Maia Fleischman, and Kayla Wunderlich of Baker Donelson.
Ms. McClain was released on September 16 after three months of unlawful pretrial detention. She was arrested in June, seven months after giving birth, during a traffic stop on a chemical endangerment warrant as she drove to pick up milk for her family. She has no diagnosis of a substance use disorder, but she and her newborn were nonconsensually drug tested in a hospital after she gave birth at home. During her incarceration, Ms. McClain missed her son’s fourth birthday and first day of school and was separated from her newborn. Pregnancy Justice represents Ms. McClain with pro bono counsel Morgan Cunningham; pro bono counsel Christie Dowling and Leigh Anne Fleming of Baker Donelson; and pro bono counsel Lev Dassin, Jonathan Kolodner, and Sabrina Singer of Cleary Gottlieb.
Ms. Leal was released on September 15 after two weeks of unlawful pretrial detention. She is nine months pregnant and due to give birth within days. She was arrested on September 1 on a chemical endangerment warrant during a traffic stop. She had been sick during her detention and worried that her contractions started. Pregnancy Justice is providing legal support in her case.
Ms. Brown was released on September 14 after more than three months of detention and separation from her newborn and older children. Ms. Brown was arrested days after giving birth and receiving a tubal ligation and was denied any postpartum medical care despite her numerous requests. Pregnancy Justice is providing legal support to Ms. Brown’s pro bono counsel Chris Messer.
Although these women have been released, their criminal cases continue. Due to their criminal cases, they will also struggle to regain custody of their children and face investigations from the Department of Human Resources (Alabama’s “child welfare” agency) in a state that ranks near the bottom for the well-being of children and maternal mortality.
Etowah County has prosecuted more than 150 women on pregnancy-related charges in recent years, and it is likely that these unconstitutional bond conditions were applied to all of them. Of the more than 1,700 pregnancy-related criminalization cases Pregnancy Justice has documented from 1973 through 2020, Alabama leads the nation with more than 600 cases, and Etowah County leads the state. Only 2% of the state’s population lives in Etowah County, but it represents more than 20% of pregnancy-related prosecutions in Alabama.