On20th April 1991, an appeals court in Florida approved the conviction of a woman called Jennifer Clarise Johnson that had been charged because of delivering cocaine to her baby through the umbilical cord. That was the first time such an approval had been made by appeals courts in the US (Lewin). Ms. Johnson had agreed that she had agreed that she had taken cocaine several hours before giving birth on 23rd January 1989. After birth, paramedics found her child’s body to have traces of the drug (Lewin). Two judges upheld her conviction while one gave a dissenting opinion. Consequently, Ms. Johnson was required to go on probation for 14 years, in addition to treatment. The attorney representing Ms. Johnson, however, stated that they would appeal the case in the state’s Supreme Court.
The most pressing issue about the Florida case is whether or not passing of drugs to unborn babies through umbilical cord should be treated as problem requiring intervention by the criminal justice system or as a public health issue. Also, the case raises the question about whether or not the law requiring the prosecution of people that give drugs to children covers the delivery of drugs to fetus. Another issue is whether or not delivering drugs to fetus through umbilical cord is intentional.
The Rules applied
The judges that upheld Ms. Johnson’s case relied on Florida statue, particularly section 893.13(1)(c)(1). The section requires the prosecution of adults that give drugs to children. One of the judges that upheld the conviction, called James C. Dauksch, stated that Ms. Johnson passed cocaine to her baby voluntarily (Lewin). The judge argued that the Florida law applied to Ms. Johnson’s case because she knew that the drug she took would pass to her baby (Lerwin). The second judge that upheld the conviction was Warren Cobb. However, he expressed the concern that he was not sure whether or not it is right to prosecute women because of passing drugs to fetus through umbilical cord.
The judge that gave a dissenting opinion was called Winifred Sharp. She said that the delivery of cocaine by Ms. Johnson to her baby was involuntary. She stated further that section 893.13(1)(c)(1) did not apply to the case of Ms. Johnson. In her view, the case of Ms. Johnson was supposed to be treated as a public health problem because she was addicted. Instead of conviction, Ms. Johnson required treatment in order to solve her addiction problem (Lewin). Judge Sharp argued that the only way that Ms. Johnson could have prevented the delivery of drug to her unborn baby would be through disconnecting the umbilical cord before birth.
A remarkable aspect of Ms. Johnson’s appeal case is that it revealed a gap in law that needed to be addressed. As noted from the views of the judges that upheld the case, it was not clear whether or not Florida statute section 893.13(1)(c)(1) covered the delivery of drugs to fetus through umbilical cord. In an appeal made in the Supreme Court of Florida afterward, the judges involved overturned the appeals court decision. They argued that section 893.13(1)(c)(1) applies only to people that give drugs to born children (Supreme Court of Florida). As the dissenting judge argued, Ms. Johnson case should have been treated as a public health issue rather than a problem requiring intervention by the criminal justice system. She required counseling and treatment meant to address her problem of drug consumption.
- Lewin, Tamar. “Court in Florida Upholds Conviction for Drug Delivery by Umbilical Cord.” New York Times, 20 April 1991 [https://www.nytimes.com/1991/04/20/us/court-in-florida-upholds-conviction-for-drug-delivery-by-umbilical-cord.html] Accessed 12 December 2017.
- Supreme Court of Florida. Jennifer Clarice JOHNSON v. STATE of Florida. No. 77831. 23 July [https://law.justia.com/cases/florida/supreme-court/1992/77831-0.html] Accessed 12 December 2017.