Summary Report Survey of District Attorneys General on Public Chapter 820 Prepared by Commissioner Bill Gibbons Department of Safety & Homeland Security April 10, 2015 Introduction Governor Haslam signed Public Chapter 820 into law on April 24, 2014. This new law provides that a woman can be charged with misdemeanor simple assault if she illegally uses narcotics during pregnancy and the baby is harmed as a result. Upon signing Public Chapter 820 into law, the Governor stated a desire to study the use of this new law as a tool to get such women into effective treatment in order to reduce the number of babies harmed in the future. In January, a survey was sent to all 31 district attorneys generals. A total of 27 DAs responded to the survey. Their responses are included in the results below. Results 1. For the period of April 24, 2014 (the effective date of the legislation) through December 31, 2014, how many prosecutions were initiated pursuant to Public Chapter 820? • The law was used in ten judicial districts. (One DA noted his district had used the law in 2015, although that was not the time period covered by the survey.) • Twenty-eight cases had been initiated for prosecutions as of December 31, 2014 (plus two additional 2015 cases). • See attached map for breakdown of cases by judicial distict. 2. Of the prosecutions initiated under Public Chapter 820, as of December 31, 2014, how many have resulted so far in: • Not guilty verdicts? 0 • Dismissal with no conditions? • Drug court treatment while the case is pending with dismissal upon 0 graduation? 7 2 Page • Probation with drug court treatment as a condition? 0 • Probation with drug treatment outside of a drug court program as a condition? 10 • Up-front jail time without probation? 0 • Up-front jail time followed by probation? 1 • Other? If so, specify: o One case was pending with it being a condition of defendant’s bail/pretrial supervision that she enter and complete a drug rehabilitation program. o One case was dismissed after 6 months, with all conditions being met. o One case required community service and compliance with Department of Children’s Services requirements. o The remaining cases were still pending with no resolution at the time of the response to the survey. 3. Under the new law, it is an affirmative defense that the defendant was actually enrolled in an addiction program before the child was born, remained in the program after delivery, and successfully completed the program. For any disposed cases in which this affirmative defense was raised, how many resulted in: • A not guilty verdict? 0 • Dismissal with no conditions having to be met? 0 • A guilty plea or verdict? 0 3 Page • Other? If so, specify: o One office declined to prosecute cases where the mother had already sought drug treatment. 4. Of the cases for which prosecution was initiated, • How many were reviewed by the Child Protection Investigation Team (CPIT)? 28 o One DA, who had responded that his office prosecuted no cases, responded: “Our CPIT reviews all drug endangered child cases. In calendar year 2014, we have had five substantiated and three unsubstantiated drug exposed infant care.” • How many were reviewed by the other entities? Please specify which entities. 0 o One DA, who had responded that CPIT reviewed his office’s one case, also responded to this question: “Law enforcement, district attorney.” o One DA, who had responded that his office prosecuted no cases, responded to this question: “Child Fatality Review would look at death cases.” 5. Do you think Public Chapter 820 is helpful in preventing more babies from being born with drug dependency issues (Neonatal Abstinence Syndrome)? • Yes - 17 • No - 7 • No response - 3 4 Page • Comments: o “One Assistant DA said he felt the old law, wherein we could prosecute for reckless aggravated assault [a felon] for doping while pregnant was an effective way to deal with the problem.” o “The statute requires (1) doctor refer patient to addiction program and (2) someone follow-up and see if mom completed program. Participation doesn’t mean mom doesn’t use drugs. More obstacles to prosecution combined with a less significant penalty on successful prosecution probably means less prosecution will be undertaken.” o “The law isn't very clear and does not encompass all illegal drugs. The penalty is a misdemeanor, and successful treatment is an affirmative defense. Successful treatment is not defined and is very subjective depending on the perspective.” o “Once the law changed the first time to stop prosecution, it took a while to get the hospitals and DCS back to reporting it and law enforcement to pick it up.” o “Concerns over decrease in prenatal care.” o “We are a small, rural district population wise. I intend to use this statute sparingly, but it is an important tool in our toolbox for reducing drug use in addictive mothers 5 Page Cases Prosecuted by Judicial District as of December 31, 2014 2nd Judicial District 9th Judicial District 28th Judicial District 8 cases 1 Case 1 Case 4th Judicial District 10th Judicial District 30th Judicial District 2 Cases 2 Cases 6 Cases 5th Judicial District 12th Judicial District 2 Cases 1 Case 7th Judicial District 16th Judicial District 4 Cases 1 Case