The Real Cost of Prisons Weblog

Ms. McKnight was arrested in 1999, several months after she experienced a stillbirth at Conway Hospital. McKnight's conviction was based on the jury's acceptance of Junk Science -- the scientifically unsupported claim that her cocaine use caused the stillbirth. Ms. McKnight had no prior arrest history and even prosecutors agreed that she had no intention of harming the fetus or losing the pregnancy. Nevertheless, upon conviction she was given a twenty-year sentence, suspended to twelve years in prison with no chance for parole. Her sentence would have kept her imprisoned until 2010.

National Advocates for Pregnant Women has been working on Ms. McKnight's behalf for nearly a decade. One of NAPW's main commitments is to national and local organizing, mobilizing preeminent medical, public health and child welfare organizations and experts to speak out on behalf of pregnant women and the need to base policy on science not prejudice. From the beginning of Ms. McKnight's case, NAPW and our allies at the Drug Policy Alliance have worked with leading South Carolina and national organizations and experts to oppose the prosecution and conviction.

In the most recent round of litigation, National Advocates for Pregnant Women, the Drug Policy Alliance, and South Carolina counsel Susan K. Dunn represented organizations including the South Carolina Medical Association, the South Carolina Nurses Association, the South Carolina Association of Alcoholism and Drug Abuse Counselors, and the South Carolina Coalition for Healthy Families in an amicus (friend of the court) brief. The amicus brief argued that women do not lose their right to a fair trial upon becoming pregnant and challenged the validity of the state's evidence claiming that cocaine use caused the stillbirth.

The medical and public health groups and experts also raised concerns about the consequences of South Carolina's policy of arresting pregnant women who experience drug problems. The amicus brief cited the fact that threatening pregnant women with jail time deters them from seeking prenatal care and other vital services, as has been the case in South Carolina since the Whitner ruling in 1997 that originally permitted prosecution of pregnant women under state child endangerment.

In 2002, NAPW, with attorney David Goldberg and numerous allies, challenged the constitutionality of using homicide statutes to prosecute women who experience stillbirths. On appeal, a bare majority of the South Carolina Supreme Court upheld the conviction and the new interpretation of the state's homicide law. The Court held that a pregnant woman who unintentionally heightens the risk of a stillbirth could be found guilty of "extreme indifference to human life" homicide. Under this decision a conviction for homicide is permitted on any evidence that a pregnant woman engaged in activity "public[ly] know[n]" to be "potentially fatal" to a fetus. The U.S. Supreme Court refused to review the decision.

Yesterday's ruling focused on the question of whether Ms. McKnight received a fair trial and concluded that Ms. McKnight's counsel was "ineffective in her preparation of McKnight's defense through expert testimony and cross-examination." The decision also indicated that the medical and scientific basis for the prosecution and that of other women in the state was based on outdated and inaccurate medical information.

The ruling addressed a petition filed on behalf of Ms. McKnight seeking judicial review to determine whether she was unlawfully imprisoned lawfully and should be released from custody. A successful petition must show that the court ordered the imprisonment based on a legal or factual error. Ms. McKnight's counsel argued that the factual error was accepting a causal link between McKnight's cocaine use and her stillbirth. The court held that the legal errors included not calling medical experts as witnesses who could refute that link, failing to investigate the medical evidence the state's witnesses relied on (and which was based on "outdated" scientific studies), failing to show the jury the autopsy report that indicated that an infection was the primary cause of the stillbirth, and failing to challenge the court's confusing and contradictory instructions to the jury of what "intent" Ms. McKnight had to have.

Our press release on the decision features two South Carolina leaders and NAPW allies:

"Significantly, the opinion acknowledges that current research simply does not support the assumption that prenatal exposure to cocaine results in harm to the fetus, and the opinion makes clear that it is certainly 'no more harmful to a fetus than nicotine use, poor nutrition, lack of prenatal care, or other conditions commonly associated with the urban poor," said Susan K. Dunn, South Carolina co-counsel for amicus. "This decision puts Solicitors [prosecutors] across the state on notice that they must actually prove that an illegal drug has risked or caused harm—not simply rely on prejudice and medical misinformation.

"Ms. McKnight is one of more than 500 women in South Carolina who experience stillbirths each year, and in many of those cases, medicine just can't determine the cause," said Brandi Parrish, coordinator of the South Carolina Coalition for Healthy Families and NAPW local ally. "It is a tragedy that Ms. McKnight has been in prison for nearly eight years for a crime she did not commit. Families in South Carolina are not helped by treating stillbirths as crimes and wasting hundreds of thousands of tax dollars to imprison innocent mothers."

In the post-conviction phase of the case, Ms. McKnight was directly represented by C. Rauch Wise of the American Civil Liberties Union of South Carolina Foundation, Inc., and Matthew Hersh and Julie Carpenter of the law firm Jenner & Block for the DKT Liberty Project. NAPW is exceedingly grateful to the DKT Liberty Project for coming to us and offering their support, providing extraordinary legal talent, and having the commitment to continue the fight on behalf of Ms. McKnight.

What does Ms. McKnight have to say?

Rauch ("Rock") Wise went to the prison to give Ms. McKnight the good news in person. She was thrilled but somewhat in shock. As Rock was leaving, he asked her for a hug. She told him it was against prison rules. Rock asked for permission from the prison guard. Permission was not granted: Just one small denial that captures so much of the overall cruelty and injustice of this case.

By 5:00 p.m. though, the ruling was sinking in and Ms. McKnight was able to call collect from the prison. She said how happy she was, and that "It has been a very long road." She thanked everyone for sticking with her.

Unfortunately she will not be released immediately. The State has fifteen days to petition for reconsideration and then the State will decide whether to re-try her. Her counsel and allies are all working on ways to speed up her release and to find community support systems for her when that day comes.

What can you do?

The Charlotte Observer , the Myrtle Beach News and papers around the country are starting to report on Ms. McKnight's victory. How can you help right now? Please check out the news stories and post your own comment about why the decision is good, and prosecutions of pregnant women and new mothers are bad for mothers and babies.

http://www.advocatesforpregnantwomen.org/blog/