We Must Oppose Inhumane and Unjust Prosecutions of People in the Perinatal Period

This legislative session Elephant Circle, along with a coalition of organizations* worked to pass a law that would protect the perinatal period at all stages of the criminal legal process.

Here is a fact sheet about the bill, HB23-1187, and here it is on the Colorado Legislature website. Elephant Circle has been involved in advocating for incarcerated people who are pregnant or postpartum since 2010 when we helped pass a law to prohibit use of shackles on pregnant and laboring people. Since then we have had groups at Denver Women’s Correctional Facility for many years, and collected stories from people who experienced incarceration during the perinatal period (thanks to the storytellers and support from Colorado Equity Compass).

We have also tracked cases across the country of people being charged for crimes specifically related to the perinatal period and understand the unique vulnerability of people facing such circumstances, including an increased exposure to blame (see for example Blaming Mothers by Linda Fentiman, who testified in support of SB23-1187).

Unfortunately, the need for policy change and advocacy in this area has been confirmed by Arapahoe County, Colorado’s prosecution of two parents for the death of their one-day-old newborn. No, there is not any evidence to suggest they caused their newborn’s death, and we are calling on the District Attorney prosecuting this Colorado case to drop the charges.

When such a young baby dies an investigation is inevitable, and such investigations are ripe for all of the emotions, stigma, and bias surrounding pregnancy, birth, and early parenting. Someone will certainly be blamed; mothers and midwives are the most common. When this happens, often, normal and appropriate things that mothers and midwives do are recast as criminal.

For example, in one case we are familiar with a woman who had been using drugs and did not know she was pregnant, went to the hospital complaining of abdominal pain. Still not knowing she was pregnant, which had also not yet been diagnosed by hospital staff, she went to the bathroom (within the hospital) where she proceeded to give birth while sitting on the toilet.

The prosecution recast the fact that she was sitting on the toilet to birth the baby as evidence of this mother’s criminality, as if it suggested malice or indifference: it does not. In fact, birthing stools which have been used throughout history, look quite like toilets, because it is very supportive and appropriate shape to facilitate birth.

Compounding the problem of bias-prone investigation is the problem that people tend to think if someone is punished it must be for a reason, they must deserve it. This can further isolate and stigmatize the person who is being blamed, even when that blame is unearned. The criminal legal system should guard against such dynamics through due process, but in these highly charged cases the due process that exists is inadequate or set aside, overridden by emotion, bias and stigma that can lead prosecutors to cut corners and ignore or withhold exculpatory evidence.

Take for example this case from South Carolina, where a mother was charged with killing her newborn through breastmilk that contained high levels of morphine. Experts contend that it would be extremely unlikely, if not physiologically impossible to transmit enough morphine through breastmilk to harm a child (without an innate genetic condition that impacts metabolism).

But since the breastmilk was not tested for levels of morphine, and other modes of transmission of morphine were not investigated, critical information was simply unavailable. Similarly, in this recent Arapahoe County case, the formula was not tested, the prosecution delayed sharing the autopsy report which is supportive of the defense, and the prosecution is still withholding potentially exculpatory evidence (of the parents’ consistent negative drugs tests, among other things). This underscores the implicit bias at play; the assumption that someone is to blame shuts down inquiry and curiosity.

We need strong policies that guard against these weaknesses, and better protect due process and human rights. SB23-1187 aims to reinforce the value of protecting this unique timeframe for both the pregnant/postpartum person and the newborn. It aims to provide prosecutors, defense attorneys and judges with extra reason to consider and reconsider the facts in any criminal case involving someone who is pregnant or within one year of the end of a pregnancy, and be very reluctant to incarcerate during this time.

We are sad that the need for this policy was confirmed so soon after the law passed, but appreciate the motivation to push forward with this work and ensure that the law is enacted as intended.

• Supporting Organizations:

  Elephant Circle, Soul 2 Soul Sisters, ACLU of Colorado, Children’s Campaign, Colorado Center on Law and Policy, Colorado Consumer Health Initiative, Colorado Criminal Justice Reform Coalition, COLOR, Healthier Colorado, New Era Colorado, Office of Respondent Parents’ Counsel, Planned Parenthood of Rocky Mountain, ProgressNow, Reimagining Policing Taskforce, Together Colorado, Women’s Foundation of Colorado, Young Invincibles,