Pubdate: Thu, 07 Nov 2002
Source: Post and Courier, The (SC)
Contact:  2002 Evening Post Publishing Co.
Website:  http://www.charleston.net/index.html
Details: http://www.mapinc.org/media/567
Author: Associated Press

COURT TACKLES ISSUE OF FETAL DRUG DEATHS

Thursday, November 7, 2002
Associated Press

COLUMBIA-South Carolina's Supreme Court heard arguments Wednesday in a case 
aimed at overturning the state's unique law that prosecutes women for 
homicide if they kill their fetus by taking drugs. Defense lawyers are 
trying to throw out the conviction of Regina McKnight of Conway, who's 
serving 12 years in prison after a jury took 10 minutes to convict her last 
year in the death of her stillborn daughter.

Arguments covered several issues - from whether a sentence as harsh as life 
in prison was cruel and unusual punishment to whether a pregnant woman 
could be prosecuted for smoking. Defense attorney Jodie Kelley said 
justices should overturn McKnight's sentence because prosecutors never 
excluded any other cause of death for the woman's stillborn fetus.

"At the end of the case, what the state has is just cocaine byproduct and 
nothing else," Kelley said.

McKnight's lawyers asked the court to overturn a 1996 decision that allowed 
prosecutors to pursue homicide by child abuse charges against women who 
harm their viable fetuses. To prove the homicide charge, prosecutors must 
prove the mother showed extreme indifference to the unborn child by taking 
cocaine.

You've got to show some proof this uneducated homeless person knew taking 
cocaine while she was pregnant would harm her baby," Chief Justice Jean 
Toal said.

Charles Richardson of the state attorney general's office said it is common 
knowledge cocaine can harm a fetus.

Punishing pregnant women for illegal drug use has been a hot issue in South 
Carolina for more than a decade. Two years ago, the U.S. Supreme Court 
ruled hospitals cannot test pregnant women for drugs without consent then 
turn the results over to police.

The South Carolina justices, as is their custom, will issue their decision 
at a later date. All five asked the lawyers questions at Wednesday's 
hourlong hearing. The most biting queries came from Costa Pleicones, who 
was the only justice appointed after the court ruled in the 1996 case.

Pleicones called the prosecution's medical evidence that cocaine killed 
McKnight's baby "abysmally weak." He also latched onto Kelley's argument 
that the 12-year sentence, suspended from 20 years in prison, was cruel and 
unusual punishment.

"I think she could have gotten life, but she instead got 20 years," said 
Norman Rapoport, who also argued the case for the attorney general's 
office. "I think that shows this is not cruel and unusual punishment."

Also during Wednesday's argument, Justice James Moore brought up smoking. 
"What difference does it make whether a substance is legal or illegal if it 
harms the fetus?" he asked. Richardson said that was irrelevant to this 
case but when pressed by Pleicones he said prosecutors could charge a 
pregnant woman who killed her viable fetus by taking over-the-counter 
drugs, drinking or smoking "under certain circumstances."

In briefs, McKnight's lawyers argued the justices also should overturn the 
1996 case because no other state has followed South Carolina's lead. But 
Attorney General Charlie Condon said just because the state is first, 
doesn't mean it is wrong.
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