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She was charged with manslaughter after a miscarriage. Cases like hers are becoming more common in Oklahoma.

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She was charged with manslaughter after a miscarriage. Cases like hers are becoming more common in Oklahoma.

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This story was produced as part of a project for the USC Annenberg Center for Health Journalism’s 2021 National Fellowship.

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Katie Mulligan/For The Frontier
Katie Mulligan/For The Frontier
The Frontier
Friday, January 7, 2022

By KASSIE MCCLUNG and BRIANNA BAILEY

Brittney Poolaw brushed away tears as the paramedic on the witness stand raised his hand to point her out in the courtroom for the jury. 

She shook her head as he described the night she had a miscarriage at a Lawton apartment complex and had to be rushed into emergency surgery. 

Prosecutors argued methamphetamine use caused Poolaw’s miscarriage between 15 and 17 weeks gestation. But a state medical examiner who testified for the prosecution during the one-day trial in October said there was a complication with the placenta and the fetus had a congenital abnormality. He couldn’t say for certain whether drug use caused the pregnancy loss. 

Prosecutors told the jury though witnesses couldn’t definitively say drug use caused the pregnancy loss “that doesn’t mean they didn’t have an idea.”

“We have a situation where the defendant put her wants ahead of the baby. She chose meth over his life,” Assistant District Attorney Christine Galbraith said. 

Jurors deliberated for less than three hours before they handed down the verdict — guilty of manslaughter in the first degree. Poolaw, who was 19 at the time, was sentenced to four years in prison. 

In Oklahoma, a growing number of women are facing criminal charges for using substances during pregnancy, as more babies have been born exposed to drugs in recent years, an investigation by The Frontier has found. Prosecutors have been aided by a 2020 Oklahoma Court of Criminal Appeals ruling that held women can be charged with child neglect for using drugs during pregnancy — a felony that can carry up to a life sentence. Courts in Alabama and South Carolina have handed down similar decisions.

Women can be prosecuted even if their babies are born healthy.

The Frontier analyzed the cases of 45 women across the state who were charged with felony child abuse, child neglect or manslaughter in connection with substance use during pregnancy since 2017.

​​Most of the women were charged with child neglect after their newborns tested positive for methamphetamine, but women also faced felony charges for using pot during their pregnancies in one county, even if they had medical marijuana licenses. 

The number of infants exposed to drugs before birth almost quadrupled between fiscal years 2015 and 2021, according to state data. Most of that increase came from marijuana, which made up more than 75 percent of cases in 2021. Eleven percent of the reports were from infants exposed to methamphetamine in the womb.

Nine health care providers and policy experts told The Frontier fear of criminal prosecution can lead to worse health outcomes for women and babies by preventing mothers from seeking prenatal care or substance use treatment. Many leading groups including the March of Dimes, the American Medical Association and the American College of Obstetricians and Gynecologists, also oppose prosecution for drug use during pregnancy. In late December, 37 Oklahoma doctors signed a letter denouncing the practice.

Dr. Kate Arnold, the vice-chair of the Oklahoma section of the American College of Obstetricians and Gynecologists, signed the letter. She believes it would cost less and produce better outcomes to offer more access to treatment and other support services instead of criminally prosecuting mothers. 

“The first chance that society is willing to invest in them is to take away their baby and put them in jail,” Arnold said.

Criminal prosecution can harm women even if their charges are later dismissed or they are ordered to treatment, said Dana Sussman, deputy executive director for National Advocates for Pregnant Women. The organization defends people against prosecution in connection with their pregnancies.

Women are often subjected to public ridicule and labeled as bad mothers when names and jail booking photos appear in the local news.

“Even if we’re able to get these prosecutions dropped or they’re successful on appeal, people are carrying the stigma of having been accused of doing harm to their babies or harm to their pregnancies,” Sussman said. 

Some prosecutors told The Frontier they believe criminal justice involvement protects children and can compel women to seek treatment.

Court records indicate that just 18 of the 45 women had so far received drug treatment either as part of a pre-trial program, or were ordered to attend treatment or complete an alcohol and drug assessment as part of their sentence, an analysis by The Frontier found. Five of the women who entered any kind of rehab program went to unlicensed recovery programs. Some of the programs are faith-based and require participants to work at menial jobs for little or no pay. 

Some of the women’s charges were later dismissed, while other women were awaiting sentencing or their cases were still pending.

At least 15 of the women spent time in jail before trial or were sentenced to prison, according to The Frontier’s analysis. Police and court records noted that at least 10 women who were later charged had limited or no prenatal care during their pregnancies.

State mental health officials say there are publicly-funded treatment options for mothers and pregnant women with no waiting list, but connecting them with services can be a challenge. 

While women can face jail or prison for prenatal drug use in Oklahoma, the state Department of Human Services can’t intervene and provide support services in such cases. Child welfare workers say there’s no mechanism in state law that allows them to get involved until a child is born. 

Oklahoma ranked fourth in the country for punitive or forced interventions against women in connection with their pregnancies, including arrests and involuntary commitment to treatment between 2006 to 2020, according to National Advocates for Pregnant Women. Only Alabama, Tennessee and South Carolina had more. 

Prosecutors in Oklahoma filed at least 73 cases during that period. The organization said its case tally is likely an undercount.

Broad discretion

District attorneys have broad discretion over how or whether to charge women in connection with drug use during pregnancy, and the law has been enforced unevenly throughout the state. 

Some prosecutors have ramped up felony charges in their districts in response to an increase in drug-exposed newborns, while others have chosen to handle most cases through alternative courts to connect mothers with treatment and other services. 

In Tulsa County, prosecutors have handled the vast majority of these cases in juvenile court, where families can be linked to DHS services or substance use treatment. At least three women in the county have been criminally charged with child neglect for using drugs while pregnant over the past two years. 

Tulsa County district attorney Steve Kunzweiler comments during a press conference at the ComSat Center in Tulsa, OK, Sept. 19, 2016. Photo by Michael Wyke/The Frontier

Tulsa County District Attorney Steve Kunzweiler said he wants to keep the mother and infant together, but at the same time, his office must ensure the child is safe. 

“Ultimately, we know the government doesn’t do a good job of raising children,” Kunzweiler said. “And I’m not going to say that a drug-addicted parent is a better substitute for that. But you know, to the extent we can try and remedy that drug addiction problem and provide a safe environment for that child, we’re gonna try that first if we can.”

Brian Hermanson, district attorney for Kay and Noble counties, estimates he has prosecuted as many as 20 to 30 women per year over the past few years for using drugs during pregnancy. He charged at least seven women with felony child neglect in 2020 for using marijuana while pregnant, The Frontier found. At least three of the women charged had medical marijuana licenses. 

The number of drug-exposed newborns reported in Kay and Noble counties jumped from five in the 2015 fiscal year to 43 in 2021, according to DHS data. Most of the increase came from babies exposed to marijuana in the womb — there were 31 such cases in those counties in 2021.

Hermanson said the women he prosecutes typically receive a three to five-year deferred sentence, probation and community service. Some are ordered to attend parenting classes, recovery meetings or must obtain a drug and alcohol assessment to determine whether they need treatment.

“We’re not trying to put a bunch of people in prison, we’re trying to stop the damage, injury to these fetuses and these children that are getting ready to be born so that they can live a happy life and not be addicted when they’re born,” Hermanson said.

Hermanson said he believes he’s enforcing the law by prosecuting women after the 2020 state Court of Criminal Appeals ruling. 

One Ponca City woman Hermanson charged with felony child abuse in Kay County told police officers her doctor said she could use pot during her pregnancy, according to an affidavit. The woman had a license to use marijuana legally for medical reasons. 

Her baby tested positive for THC at birth in 2019. 

“I love my child, and I would never do anything to intentionally hurt her,” she told police, according to the affidavit. 

Police walked through the woman’s house but saw nothing of concern. She kept the pot out of reach of her children, an officer noted in his report. 

The woman didn’t respond to messages from The Frontier. The charge against her is pending. 

Research is mixed on how marijuana use during pregnancy may affect birth and developmental outcomes.

While some studies suggest pot can lead to low birth weights and attention problems, others haven’t found such associations. Outside factors, like smoking cigarettes along with marijuana, can influence studies’ findings.

Comanche County District Attorney Kyle Cabelka COURTESY

The American College of Obstetricians and Gynecologists and the Centers for Disease Control and Prevention recommend discontinuing marijuana during pregnancy. 

The district attorney’s office for Adair, Sequoyah, Wagoner and Cherokee counties hasn’t moved to criminally prosecute mothers, despite seeing an increase in babies born exposed to marijuana and other drugs. Kim Hall, first assistant district attorney, said her office handles such cases in juvenile court, similar to Tulsa County.

“That’s not to say that we wouldn’t file charges in an egregious case where a proper and thorough investigation were completed,” Hall said. “But that’s just not typically how we have handled them in this district.”

In Comanche County, where Poolaw was prosecuted, The Frontier found 10 women charged with felony child neglect or abuse since 2018 for drug use during pregnancy. Three women were charged with manslaughter. 

Kyle Cabelka, district attorney for Comanche and Cotton counties, declined an interview request and did not respond to written questions from The Frontier. The Lawton television station KSWO 7 News reported in August 2020 that Cabelka’s office planned to seek prison time in every maternal drug use case. 

Of the five Comanche County cases The Frontier examined that have so far been sentenced, four of the women received prison or jail time. Two of the women convicted of child neglect received 10-year sentences, with the promise of earlier release if they complete a drug rehabilitation program in prison. 

Oklahoma Department of Corrections drug treatment programs for women take between four months to a year to complete and have a graduation rate of 71 percent. There’s a waiting list to get in, agency spokesman Josh Ward said.

Prison instead of treatment

Women who use drugs during pregnancy are often dealing with complex issues, including past trauma and domestic abuse, said Paula Griffith, director of women and children’s services at Comanche County Memorial Hospital in Lawton, where Poolaw was treated for her miscarriage. 

She believes more support services for women before and during pregnancy would help. 

“Most of these women really want their babies and want to be able to take care of their babies. I think early intervention is probably the most key thing,” she said. 

Poolaw is a member of the Wichita and Affiliated Tribes. She spent time in foster care as a child and struggled after aging out of the system, according to court records.  

Poolaw was unemployed and didn’t have valid identification to get health services through her tribe, she said in a recorded interview with police that was played at her trial. She had no prenatal care before her miscarriage. Poolaw told police she used methamphetamine when she wanted to forget everything and feel numb. 

“I’m not proud of it,” Poolaw said in the interview. “It changes you bad.”

Poolaw said she was scared and didn’t want to believe she was pregnant. She was surprised police had launched an investigation into her miscarriage. 

“I wasn’t glad or happy I lost the baby,” she said. 

Comanche County Memorial Hospital in Lawton BRIANNA BAILEY/The Frontier

Poolaw was jailed for a year and a half at the Comanche County Detention Center before her trial, unable to raise money for her $20,000 bond. The facility had a COVID-19 outbreak in spring 2020 and has been repeatedly cited by state inspectors for overcrowding. 

Before her trial, the Comanche County District Attorney’s office would not agree to a deal to allow Poolaw to go to drug treatment and instead offered her a 15-year prison sentence if she would plead guilty, her court-appointed public defender Larry Corrales said. 

Poolaw declined an interview for this story. After her conviction drew widespread national media attention in October 2021, she got a new attorney, John Coyle III.

Coyle called Poolaw’s prosecution “a sad case and an assault on women’s rights.” 

He plans to file an appeal on her behalf. 

Miscarriage as manslaughter 

The Comanche County District Attorney’s office charged at least two other women with manslaughter after miscarriages in 2020. As in Poolaw’s case, the state medical examiner could not definitively say drug use caused the miscarriages but listed it as a contributing factor.

One of the women, 33-year-old Ashley Traister, pleaded guilty in December and is awaiting sentencing. Her attorney declined to comment. 

State lawmakers enacted a bill in 2015 that changed the definition of stillbirth from 20 weeks gestation to 12 weeks in Oklahoma. The change has triggered the state medical examiner’s office to conduct autopsies on miscarriages as early as 12 weeks gestation in some circumstances. Stillbirths are typically defined as a loss of pregnancy at 20 weeks gestation or more, according to the U.S. Centers for Disease Control and Prevention.

The Comanche County District Attorney charged 22-year-old Emily Akers with first-degree manslaughter in March 2020, some 10 months after she had a miscarriage at a Lawton hospital. 

The state medical examiner’s office conducted an autopsy and found that infection and a complication with the placenta caused the pregnancy loss but listed drug and tobacco use as contributing factors. The fetus tested positive for methamphetamine. 

Prosecutors allege Akers was high on meth when she arrived at the hospital’s labor and delivery department 20 weeks pregnant. But her attorney David Butler claims the Comanche County District Attorney’s office has not provided any evidence to show that Akers was under the influence of drugs at the time. 

A retired Lawton detective who worked security at the hospital reported Akers to police and also investigated the case, according to court records. 

A magistrate later dismissed Aker’s manslaughter charge, finding the state hadn’t presented enough evidence that drugs had caused the pregnancy loss, but Comanche County prosecutors appealed the ruling. 

Galbraith, the same Comanche County assistant prosecutor who tried Poolaw’s case, argued for the state at an Oklahoma Court of Criminal Appeals hearing in December.

Akers’ miscarriage occurred too early in her pregnancy for Oklahoma’s child neglect laws to apply, but prosecutors believed they could still charge her with manslaughter under state statutes, Galbraith said at the hearing. 

A decision in the case is pending. 

Child welfare can’t get involved

The Oklahoma Department of Human Services has no jurisdiction over pregnant women and state law doesn’t allow child welfare workers to launch an investigation until after a baby is born. 

But health care workers are required to report to DHS when a newborn tests positive for drugs.  The agency can then open a child welfare case and refer mothers to treatment.

It’s not always necessary for the state to take custody when an infant is exposed to drugs in the womb, Department of Human Services officials said. 

While the number of babies exposed to drugs increased between 2015 to 2021 in Oklahoma, the number of instances caseworkers recommended removing a child fell from 112 to 88 during the same period, according to agency data.  

Workers consider how substance use affects the caregivers’ parenting and if the child has the ability to protect themselves when deciding whether to recommend removing a child from the home, said Debra Knecht, a deputy director of Child Welfare Services at the agency. 

DHS policy requires workers to notify law enforcement when they believe a crime might have occurred, but that’s not the typical course of action, Knecht said.

It sometimes depends on where the mother lives. Some district attorneys have asked DHS to notify law enforcement of all cases of substance-exposed newborns, Knecht said. 

“We obviously know there’s a lot of criminal justice reform in Oklahoma, and an overarching goal of that has been more aimed at preserving families and preventing children from having to experience incarcerated parents,” she said. “But you know, if a (district attorney) decides to do that, that’s kind of on them.”

Police reports and court records listed Department of Human Services caseworkers as the reporting party in 13 of the 45 cases The Frontier examined. 

Need for more treatment options

Many women don’t seek treatment because they worry about criminal or child welfare involvement, said Teresa Stephenson, a senior director working on substance use issues for the Oklahoma State Department of Mental Health and Substance Abuse Services. 

Family treatment courts are one way to connect families to services. The courts help provide treatment to parents with DHS involvement and substance use issues. Women in the program were more likely to keep their babies with them after birth, Stephenson said.

But there are only five of these courts in the state, and there isn’t enough state funding to expand the program, she said. 

In recent years, Stephenson has seen an increase in criminal cases involving drug use during pregnancy. 

“I wish we could get more education out to assistant district attorneys and judges to better understand substance use and not criminalize individuals that are pregnant for their substance use,” she said. 

The Department of Mental Health is partnering with several state agencies, including DHS, to connect more families affected by substance use to services. That involves identifying people using drugs during pregnancy, as well as newborns exposed to substances.

That coalition is working to change the Department of Human Services’ definition of a substance-affected infant because it limits family care plans to only infants with neonatal abstinence syndrome and fetal alcohol spectrum disorders. 

Hundreds of infants with prenatal substance exposure and their families are not receiving family care plans, which are roadmaps to provide ongoing services, according to data from the state Department of Mental Health and Substance Abuse Services.

State data shows at least 1,602 infants with prenatal substance exposure were referred to services during the 2020 fiscal year but didn’t get a family care plan.

Other initiatives to address substance use during pregnancy are emerging across the state. 

Dr. Stephanie Pierce (center) is the medical director at the Substance use Treatment And Recovery Prenatal Clinic at the University of Oklahoma Health Sciences Center. She helped launch the program in Oklahoma City in 2019. Photo Courtesy OU Health

Dr. Stephanie Pierce is the medical director at the Substance use Treatment And Recovery Prenatal Clinic at the University of Oklahoma Health Sciences Center. She helped launch the program in Oklahoma City in 2019.

The clinic runs one day per week and provides prenatal services to people with substance use disorders. The most common substances Pierce sees, aside from tobacco and marijuana, are opioids and methamphetamine. 

There’s a need for more such care in Oklahoma, but some providers don’t feel equipped to treat pregnant patients who have substance use disorders, Pierce said. 

“There’s so many people that have these issues, and there’s just traditionally not a lot of OB providers that are really interested or excited about taking care of these patients,” Pierce said. “And I think a lot of that is due to stigma.”

She’s working with the Oklahoma State Department of Health to create video lectures on the issue for health care providers across the state.

Most patients and babies at the clinic have had positive health outcomes, Pierce said.

From October 2019 to July 2021, 91 percent of infants the clinic served were discharged to their parents’ care, according to data provided by the Oklahoma State Department of Mental Health and Substance Abuse Services. Two of the mothers who didn’t get to take their babies home were incarcerated.  

Clinic workers try to create an environment that is welcoming and free of judgment, Pierce said. Many of their patients have experienced trauma or have had negative experiences with the medical community. A social worker embedded at the clinic helps connect families to services. 

“We’re not just trying to catch everybody and punish them, and report that to DHS because that’s not what we’re about at all because that’s not what’s best,” she said. “It’s not fair. It’s not what’s best for them.”

This project received support from the USC Annenberg Center for Health Journalism’s 2021 National Fellowship.

[This article was originally published by The Frontier.]

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