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Thursday, June 14, 2007

A Sad Coda to a Momentous Case

As I sit here waiting for opinions for the opinions to issue from Mt.Olympus 1 First Street, I thought I would provide a very different kind of Supreme Court update.

In recent weeks, the news here in Columbia, South Carolina has been dominated by a particularly horrific multiple murder-rape-arson case.  Well, the news broke yesterday that one of the victims--a woman by the name of Crystal Ferguson--was the same Crystal Ferguson who was the lead plaintiff in Ferguson v. City of Charleston, the 2001 case finding unconstitutional the City of Charleston's program of drug testing pregnant women and then using the results as grounds for hospital room arrests.

I remember the Ferguson case vividly because it was the first major case argued the year I clerked at the Supreme Court.  As a doctrinal matter, the decision in the case has proved to be notable, but not earth-shattering, acting (along with the same term's decision in City of Indianapolis v. Edmond) to impose some, minimal limits on the "special needs" exception to the 4th Amendment's general warrant requirement.

Personal connections and doctrinal matters aside, however, Ferguson strikes me as a case that deserves to be remembered.  Whatever one thinks of the legal analysis in the opinion (or even the ultimate resolution of the constitutional issue), the litigation revealed a pattern of state violence staggering in its insensitivity and historical naivety.  The images portrayed in the litigation were the familiar, almost archetypal, tropes of American history:  African-American women shackled in their beds, their children in some cases literally ripped from their arms,  while sanctimonious white folk stand by explaining the allegedly benevolent reasons behind their particular acts of brutality (all the while relying on alleged scientific theories that turn out to be more the product of panic and racism that actual science).  The resonances of slavery and Jim Crow were so pronounced that they would need no mention but for the fact that they escaped notice by those who formulated, enforced, and defended Charleston's policy.  Proof positive, I suppose, that history sometimes repeats itself as both tragedy AND farce.

Posted by amsiegel on June 14, 2007 at 10:50 AM in Constitutional thoughts, Current Affairs | Permalink


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Anonymous Skeptic - Another important point Andy makes is that compared with alcohol, tobacco and a wide variety of OTC medicines, medical research has fairly consistently demonstrated that cocaine isn't all that dangerous to a fetus. So if the goal is protecting fetal health, it would make a lot more sense (if this could ever make sense) to arrest women who drink alcohol and smoke cigarettes while pregnant.

Posted by: Ann Bartow | Jun 15, 2007 4:26:44 PM

Under the policy, 30 women were arrested: 29 were black. The one white woman? She had a black boyfriend, which was noted on her medical chart.

Posted by: David S. Cohen | Jun 15, 2007 3:43:32 PM

Perhaps the use of the phrase "addicted to cocaine" is a bit over the top, but my point was that South Carolina and other states were reacting to a public health scare, not attempting to perpetuate Jim Crow-style racism. There is certainly no national consensus that shooting or smoking cocaine is a harmless pastime, and it hardly seems unreasonable to think that cocaine usage during pregnancy might have harmful effects on the fetus (akin to, for example, fetal alcohol syndrome). Indeed, an NIH study in 1989 suggested that there was a "high incidence of pregnancy complications" and several other post-birth problems that correlated with cocaine usage.


And I (and I think most people) would agree that incarcerating a woman immediately after giving birth is too extreme, but in 1990 South Carolina wisely amended its law to allow women to enter a substance abuse treatment program.

But the real point is that there are a substantial number of unjust laws out there with racially discriminatory effects and *no* good justification (e.g. the prohibition on marijuana, which in execution, falls disproportionately on blacks; the infamous crack/cocaine ratio in federal sentencing law; the invidious use of racial profiling in traffic stops, for immigration and incarceration purposes, etc.), and crying Jim Crow at every opportunity just distracts from the undeniable instances of racism in our society.

Posted by: Anonymous Skeptic | Jun 15, 2007 10:54:22 AM

I actually think that one of the most enduring legacies from Ferguson is the mythology of the "crack baby" (thanks, Anonymous Skeptic, for illustrating it). And the attitude that, despite the consensus of doctors and public health officials to the contrary, that there is such a thing as a "crack baby," and that it is ever an appropriate treatment for a drug-addicted mother to prosecute her.

Posted by: Deb Ahrens | Jun 14, 2007 7:57:42 PM


Setting aside any doctrinal matters, how on earth was *Ferguson* a momentous case at all? South Carolina hospitals noticed an increase in the late '80s with the number of babies born addicted to illegal narcotics, including cocaine and crack. Some might say this is not a problem, but South Carolina reasonably thought something should be done about it and criminalized the use of illegal narcotics while pregnant (of course, the use of illegal narcotics was already prohibited, but set that issue aside). South Carolina hospitals started reporting positive tests for narcotics to the police, which (after 1990) allowed mothers to avoid arrest if they agreed to participate in a substance abuse problem.

So where's the "pattern of state violence staggering in its insensitivity and historical naivety?" Not all drug-users are black, not all policemen (nor hospital workers, for that matter) are white, and what's racist in thinking that babies should not come into this world addicted to cocaine? Do those who have a full understanding of the tragedy of Jim Crow think that the addiction of babies to cocaine is not a problem? Do those with a full appreciation for the horrors of Southern slavery think that addicts with children should never be forced into substance abuse treatment? Of course not. While Jim Crow and slavery unquestionably echo in our ears and their malingering effects are still felt, that should not prevent states (even Southern states) from addressing contemporary problems.

Posted by: Anonymous Skeptic | Jun 14, 2007 12:16:09 PM

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