POSTED ON JUNE 20, 2012:
DA Tim Harris' case against Daiquiri Miller poses questions beyond simple guilt or innocence
Daiquiri Miller reads the news.
"I'm not a monster. I'm not what they portray I am. I really do love my son," said Miller, seated behind the glass in a visiting booth at the Tulsa County Jail.
Miller, 34, delivered a baby boy on March 31. Both mother and son tested positive for cocaine, according to a police affidavit. It wasn't the first such test for Miller. The affidavit lists nine other positive tests recorded during two earlier pregnancies.
Her drug use while recently pregnant is seemingly beyond dispute.
"I would backslide. But I was trying to quit," said Miller, who described her time in jail as "the first time I've been clean in six years."
Much less clear, however, is how the child neglect criminal case against Miller may test Oklahoma law or even spark up debate about personhood, the concept that a fetus is best thought of as an unborn child with certain legal protections. The case also spotlights the difficulty in addressing -- or even assessing -- the public health issue of babies born exposed to drugs.
Tulsa County District Attorney Tim Harris doesn't pursue criminal charges against every woman who births a drug-exposed baby. Such cases have remained outside of criminal court, with child welfare authorities reviewing a family's circumstances to craft a safety plan that can include keeping the child with parents or taking the child into custody temporarily.
The criminal case against Miller is "probably one of first impression," Harris said, meaning there's no firmly established precedent.
But the group National Advocates for Pregnant Women has fought similar prosecutions elsewhere, claiming such cases violate reproductive rights.
"The prosecution includes, as an element of the crime, going to term with the pregnancy," said Lynn Paltrow, the group's executive director.
She counts fewer than 10 such cases in Oklahoma over the years, including an Oklahoma County murder case in which prosecutors alleged methamphetamine use caused a stillborn birth. The case ended in a conviction following a guilty plea, though Theresa Lee Hernandez was freed in 2008 in a deal with prosecutors after serving less than one year of her sentence.
Nationally, "what we're seeing right now is a flare up of these kinds of cases," said Emma Ketteringham, the group's legal advocacy director.
Prosecutors have occasionally pursued such cases since the 1980s. Sometimes a law explicitly states a fetus or unborn child can be a crime victim.
But Oklahoma's child neglect criminal statute makes no direct mention of a fetus or of pregnancy. By Ketteringham's reasoning, this makes prosecution legally flawed.
Harris, however, said Oklahoma has a formal definition for a "deprived child," which includes "a child who at birth tests positive for alcohol or a controlled dangerous substance and who, pursuant to a drug or alcohol screen of the child and an assessment of the parent, is determined to be at risk of harm or threatened harm to the health or safety of a child."
The definition comes from Oklahoma Children's Code, which typically governs non-criminal child welfare cases.
Harris said "definitely, under Oklahoma statute" he has authority to pursue criminal charges. Miller's history plays into the case. In February, undercover police targeting street prostitution arrested Miller. Her complaints then about labor pains instead were related to cocaine use, according to police.
The affidavit notes that Miller has had parental rights terminated for her other six children, and that Miller "stated that she used marijuana and alcohol while pregnant," though the official charging document names only cocaine explicitly.
Harris said police decided the case "was ripe for criminal prosecution, based on, I guess I can say, a track record, a historical track record of information regarding her lack of parenting skills."
According to the affidavit, by Detective Darren Carlock, in a hospital interview with the Department of Human Services Miller said "she knew DHS would be coming for her child and wondered what took so long."
In person, Miller comes across as more fatalistic than defiant.
"The reason why is I couldn't handle being pressured all that time, and they were going to snatch my boy," Miller said of her drug use, disputing an affidavit claim that she used cocaine every day while pregnant.
The affidavit states Miller failed to complete drug counseling and parenting classes offered to her.
Miller said she's been turned away from drug rehabilitation programs because of bleeding ulcers. Without a court order for treatment, "I've been trying for the last four years to get into rehab," Miller said.
Miller said she avoided pre-natal care during her recent pregnancy "because I didn't want them to take a blood test."
Such comments evoke concerns expressed by doctors.
"Drug enforcement policies that deter women from seeking prenatal care are contrary to the welfare of the mother and fetus," states a position paper from The American Congress of Obstetricians and Gynecologists.
In Oklahoma, doctors must report an infant's positive drug test to welfare authorities.
No such law exists prior to birth and DHS would not take a report. "The State of Oklahoma does not recognize a fetus as a child," said Sheree Powell, a DHS spokeswoman. "Even DHS and the courts cannot intervene while the mother is pregnant."
If personhood might lead to earlier state intervention, Harris declined to discuss a law not on the books.
Some groups see similar prosecutions as efforts to establish personhood -- and attack abortion.
"The more places in the law they can say the fetus is a person, the fetus is a victim of the crime, the closer you get to a world where it would be easier to reverse Roe V. Wade," Ketteringham said.
Harris sent out a campaign mailer in 1998 stating: "I am strongly pro-life. Life begins at conception and should be cherished and protected from that moment ... Although issues such as abortion and assisted suicide have not arisen in the District Attorney's office, my views allow you to see what kind of person I am and how I will uphold the law as your District Attorney."
Harris said while he still holds pro-life beliefs, "It doesn't have any bearing at all on the Daiquiri Miller case, because it has nothing to do with conception or life beginning at conception."
No statistics are kept for Tulsa infants born exposed to drugs. It seems "increasingly common," said Anne Sublett, a volunteer attorney with Tulsa Lawyers for Children, which handles child welfare cases. Harris said 331 "deprived children" petitions, not just for drug-exposed infants, were filed last year.
The Oklahoma Commission on Children and Youth has noted a lack of data and lack of hospital protocols for drug testing, and a shortage of drug treatment, with a committee set to make recommendations in September.
Miller said she's determined to complete rehab and "get my son back." She's still in a relationship with one of the fathers of her children. While she receives disability payments for income, she said she'd like to study welding.
Miller said she did not know she could face criminal charges for using drugs while pregnant.
"When you're already doing it and you're pregnant, it's just that much harder," Miller said.
If convicted of child neglect, Miller faces a penalty of up to a year in jail or even life in prison. She said the threat of prosecution could influence some women.
"If some more knew this would happen to them, then yes, some of them would do their doggest to not go to prison. But some of them wouldn't care," Miller said.
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