By MICHAEL R. SISAK and MICHAEL BALSAMO – Associated Press
WASHINGTON (AP) — A fourth worker at a federal women’s prison in California has been charged with sexually abusing an inmate. His arrest comes months after the prison’s warden was arrested on similar charges.
James Theodore Highhouse, a corrections worker and chaplain at FCI Dublin, was charged Tuesday with sexual abuse of a ward, abusive sexual contact and making false statements to investigators.
Prosecutors allege Highhouse engaged in sexual acts with a female inmate on multiple occasions between May 2018 and February 2019.
Highhouse then lied to investigators from the FBI and Justice Department Inspector General’s office when they asked him about the alleged sexual misconduct, prosecutors said. In interviews on Feb. 21, 2019, Highhouse knowingly made false statements denied engaging in sexual acts with the inmate, prosecutors said.
Court records did not list a lawyer for Highhouse and no telephone number for him was listed in an online directory.
Highouse is the latest latest employee of the federal Bureau of Prisons charged with criminal wrongdoing in a prison system that has been rife with corruption and misconduct. The Associated Press reported in November that more than 100 Bureau of Prisons workers have been arrested, convicted or sentenced for crimes since 2019, as the agency turned a blind eye to misconduct allegations.
Highouse worked at FCI Dublin, where actresses Felicity Huffman and Lori Loughlin spent time for their involvement in the college admissions bribery scandal. He is the fourth employee at the prison to be charged in the last several months with sexually abusing inmates.
The warden at FCI Dublin, Ray Garcia, was arrested in September and later indicted on charges he molested an inmate multiple times, scheduled times where he demanded she undress in front of him and amassed a slew of nude photos of her on his government-issued phone. A recycling technician was also arrested on charges he coerced two inmates into sexual activity. In December, a correctional officer was charged with engaging in sexual conduct with an inmate and gave her special privileges and gifts, prosecutors.
Several other workers at the prison are still under investigation.
The Bureau of Prisons has faced a multitude of crises in recent years, including the rampant spread of the coronavirus inside its facilities, dozens of escapes, the deaths of inmates and workers, and critically low staffing levels that have hampered responses to emergencies.
The Justice Department announced earlier this month that the Bureau of Prisons Director Michael Carvajal would be resigning amid increasing scrutiny over his leadership. The agency’s deputy director announced days later that he would also be leaving his position in a few months.
Op-Ed: When a prison closes, the town where it sits has a chance for redemption
BY BRIAN KANEDA
JAN. 21, 2022 3:30 AM PT
The scheduled deactivation of California Correctional Center has become a hot-button issue for the town of Susanville, sparking anger and a still-pending lawsuit to prevent the prison from closing at all. The fears of residents who have become dependent on prisons for their livelihood have been covered widely in the media, but these stories often erase the voices of millions of Californians – including people currently and formerly incarcerated at CCC – who are demanding these state-funded prisons be permanently shut down.
Prison closure in California is a complex undertaking. The task has many moving parts, including important questions about labor and infrastructure in communities like Susanville, where prison economies have taken over. Yet the fixation on these concerns continues to obscure why we must close prisons in the first place: prisons are racist institutions that are disastrous to our nation’s public health and overall economic well being.
The evidence is overwhelming. Incarceration is an ongoing humanitarian crisis that disproportionately affects Black, brown and poor communities. The U.S. spends $300 billion on the prison industrial complex annually. There’s also a $1.2 trillion impact from lost earnings, adverse health effects and financial damage to the families of incarcerated people. Mass incarceration, historically inextricable from slavery, hurts everyone in the United States and has shortened our average overall life expectancy by two years. During a global pandemic, sustaining deadly and infectious prisons is a terrible strategy to prop up employment in rural America.
It is true that thousands of people rely on income from working at prisons in California. However, if towns like Susanville cannot survive without a system that criminalizes, cages and harms people, they have an obligation to rethink the structure of their economies. And no, replacing government prisons with private detention centers is not helpful. There are smart public policy solutions that could address some of these communities’ concerns.
Prison towns should be proactive in demanding more state investment in better jobs, creating new pathways to careers that have a viable future and pay a competitive wage. Prison jobs offer high salaries but are deeply traumatic and lead to negative health outcomes. These are not “good jobs.” However, the troubles of prison guards pale in comparison to the violence inflicted upon those who are locked in prison cages. It’s also no secret that some corrections officers are guilty of perpetuating the toxic culture of prisons.
One smart job creation idea: Susanville, which is in Lassen County, could have been destroyed by the Dixie Fire, one of the largest in California’s history. Climate change is real. Preventing, fighting and recovering from wildfires are more useful jobs than guarding prisons. State governments can both end racist incarceration and engage with stakeholders to serve real community needs.
When she was 8 years old, Bryanna Rose had one item on her Christmas wish list — for her father, Jose Colon, to come home.
Ten years later, 18-year-old Bryanna is still waiting. “What would it mean for him to come home now? It would mean the wish I had asked for would come true. It would make me happy now, it would make my younger self really happy, and it would make us whole as a family,” she told Truthout.
On December 14, Bryanna watched as her mother, Janette Colon, emceed a rally outside the office of New York Gov. Kathy Hochul, calling upon her to grant clemency to Jose and hundreds of others who had transformed their lives while incarcerated.
In many states, including New York, governors have the power to grant clemency as a way of correcting excessive sentences or recognizing a person’s self-rehabilitation during their imprisonment. The president also has the power to grant clemency to those serving federal sentences.
Clemency takes two forms. A pardon, typically granted after imprisonment, expunges the conviction, removing threats of deportation and other barriers to establishing a post-prison life. A commutation reduces a person’s prison sentence, allowing them to appear before the parole board or releasing them altogether. During the COVID-19 pandemic, advocates and family members called upon governors to utilize their clemency powers to release people, particularly those vulnerable to COVID-19.
“I Feel Like I’m Inflating a Balloon”
At age 17, Jose Colon and another teenager decided to break into a Bronx apartment to steal jewelry. During the robbery, Colon shot and killed the two inhabitants. He was sentenced to two consecutive 15-to-life sentences; he must serve at least 30 years before he can appear before the parole board.
Jose and Janette Colon initially met as teenagers at a bowl-a-thon. Then came Colon’s robbery-turned-murder and imprisonment. Janette followed Jose’s case through the news though the two didn’t reconnect for years. When they did, sparks flew and, despite his lengthy sentence, they soon became a couple.
Janette notes that her husband has matured from an impulsive teenager to a mature 40-year-old who has helped parent Bryanna. He also wants to help other young people avoid the mistakes he made, designing a cognitive behavioral therapy course called I.M.O.K. (If Mother Only Knew) to help teens identify trauma and avoid going down similar pathways.
Colon submitted his application for clemency in 2019, four years after then-Gov. Andrew Cuomo announced a new Executive Clemency Bureau which would identify state prisoners who might be worthy of commutation. Thousands applied but, by the time he resigned in 2021, Cuomo had granted commutations to only 41 people. His replacement, Kathy Hochul, has yet to issue any clemencies.
“I try not to think about it because I feel like I’m inflating a balloon and then it’s going to deflate. I try not to think about it and live day by day,” said Janette. While she tries not to get her hopes up, she is working toward not only his release, but that of hundreds of others in prison, advocating with the Release Aging People in Prison campaign to press for commutations as well as for laws expanding parole eligibility.
For 5,200 People Serving Life Without Parole, Clemency Builds Hope
In California, Joseph Navarrete is one of more than 5,200 people serving life without parole. In February 1994, Navarrete, then age 26, shot and killed two people. He was sentenced to life without parole.
Now age 54, Navarrete and his wife Yolanda both state that he is a far different person than he was half a lifetime ago. Without the governor’s intervention, however, he may never have a chance to convince the parole board that he merits a second chance.
Yolanda and Joseph Navarrete, wedding photo. Photo provided by Yolanda Navarrete
In the 1990s, Yolanda told Truthout, Navarrete was addicted to methamphetamine, cocaine, pills and alcohol. He had already endured a lifetime of childhood abuse — first from his biological father and, after his mother fled that relationship and moved from Arizona to California, from his stepfather. By the time he was 14, he was drinking and experimenting with drugs; the latter resulted in his mother kicking him out of the house. He moved in with his older brother, who had been kicked out for drugs the previous year, and was soon using more frequently. To support his habit, he began dealing drugs. He married, then divorced, losing custody of his son.
The couple dated briefly in junior high in the 1980s. In high school, they went their separate ways. “He ran with the sex, drugs, rock n’ roll crowd,” Yolanda recalled. She, on the other hand, wasn’t even allowed to attend afterschool activities.
The two reconnected in 2012 shortly after Yolanda’s divorce. They began corresponding and, that July, on the anniversary of her previous marriage, Yolanda drove to Pelican Bay State Prison to visit him. “When I saw him, all the magnets came back,” she recalled. “It was like there was no time lost.”
Navarrete was no longer the wild child from high school. While in prison, he had stopped using drugs and alcohol, attending and then facilitating Alcoholics Anonymous and Narcotics Anonymous meetings. He had connected with his Apache heritage and now leads the prison’s Native American sweat ceremonies. “I am no longer that person addicted to anger, drugs and alcohol,” Navarrete wrote in a statement from prison. “I am proud to say for the last 25 years I have been leading my life in Sobriety, honesty and integrity.” Outside of prison, Yolanda connected with the California Coalition for Women Prisoners and the Ella Baker Center, both of which work with incarcerated people and their family members on advocacy and legislation. She was paired with Ny Nourn, who had initially been sentenced to life without parole, but later won a resentencing, making her parole-eligible. (Nourn was granted a pardon in 2020, removing the threat of deportation, and is now co-director of the Asian Prisoner Support Committee.) Yolanda met wives of others serving life without parole and learned how to advocate, not just on behalf of Navarrete, but thousands of others serving similar sentences. “A fire was lit within me,” she recalled. “I realized that families’ stories matter. It makes these bills not just black and white; it makes them alive.” She joined the Drop LWOP Coalition and has been advocating not only for her husband, but for the thousands of others sentenced to what she and others call “a living death.”
Candlelight vigil outside home of then director of of the California Department of Corrections and Rehabilitation, Ralph Diaz, on August 13, 2020. Photo provided by Yolanda Navarrete.
Navarrete filed for commutation in 2018. Brown ultimately granted 281 commutations — 147 of which were to people serving life without parole. Navarrete was not one of them.
Navarrete stands outside the state capitol building in Sacramento, California on August 13, 2020. Photo provided by Yolanda Navarrete.
In 2020, Navarrete filed a one-page recertification with Gov. Gavin Newsom’s office. As of November 2021, Newsom has granted 91 commutations, 29 of which were to people serving life without parole.
In California, people serving life without parole are excluded from recent reforms such as elder parole, a law allowing prisoners aged 50 and over to appear before the parole board after serving 20 years. “Commutation is the only way they’ll be reviewed,” Yolanda said.
“Half of Me Is in There With Him”
On the campaign trail, President Joe Biden voiced his support for marijuana decriminalization. “And I think everyone — anyone who has a record should be let out of jail, their records expunged, be completely zeroed out,” he said during a 2019 presidential debate.
Two years later, people in federal prisons are still waiting for him to fulfill that promise.
Pedro Moreno, Alejandra Lopez, and her child, 2016 visit. Photo provided by Alejandra Lopez.
Pedro Moreno has spent the past 25 years in federal prison. Sentenced to life, clemency may be the only way the 61-year-old can rejoin his family.
“I feel like I’m doing this sentence with my dad. Half of me is in there with him,” Alejandra Moreno Lopez told Truthout.
Alejandra Moreno Lopez was eight when federal officers burst into the family’s Texas home.
The officers, dressed head to toe in black, allowed her mother, Melba, to get dressed and dress her three children. She tied her daughter’s hair into a ponytail — the last one Lopez would wear during her childhood — and told them she’d be back soon. “We waited for her all day,” Lopez told Truthout. Her mother didn’t return for 13 years.
Melba and her husband Pedro were arrested as part of a 79-person federal marijuana sting. Pedro Moreno was charged with transporting thousands of kilos of marijuana from Mexico into the United States. Two years later, in 1998, Moreno pled guilty to conspiracy to launder monetary instruments and operating a continuing illegal enterprise. In return, the government agreed to dismiss the remaining charges and not oppose a sentence reduction.
Twenty-five years after that fateful morning, Pedro Moreno remains in prison. In January 2016, then-President Barack Obama granted clemency to Moreno’s four brothers. Eight months later, he denied Moreno’s application. He remains the last family member imprisoned from that sting. In 2010, Moreno’s wife, Melba, was released from prison. The next month, she saw her daughter graduate from college. “She always said she’d get out to see us and be a mom again,” Lopez recalled. But their time together ended the following year when Melba died after a brain aneurysm.
Alejandra’s mother Melba Moreno in prison, 2004. Photo provided by Alejandra Lopes.
Moreno is held at the federal prison in Atwater, California, nearly 2,000 miles from his family in Texas. To visit, Lopez must drive an hour to the nearest airport, fly to San Francisco, rent a car and then drive two to three hours to Atwater.
The last time she visited was in 2018. She brought her husband as well as their 3-year-old son and 11-month-old granddaughter. They stayed for an extended weekend — Thursday through Monday — to visit several days in a row. But, remarks Lopez, “It’s never a vacation. It’s in the middle of nowhere.”
Unlike other prisons, Atwater does not offer video calling, so Lopez and her family rely on phone calls. She worries that her father will contract severe COVID. At the start of the pandemic, he and other men came down with flu-like symptoms, some so severe that they couldn’t get out of bed. For a time, he lost his voice and couldn’t call.
In December 2020, he tested positive for COVID. “We were afraid he could get very sick,” Lopez said. The previous month, both his sister and brother-in-law contracted COVID and died within days of each other.
Lopez doesn’t understand why her father was denied clemency. “Now [marijuana] is legal in a lot of states. I don’t understand why there are still people in prison over this,” she said. “And [their] families are hurting.”
A Christmas Without the Looming Threat of Prison
Diana Marquez is looking forward to her second Christmas with her family in their El Paso home. She and her three grandsons have already decorated the Christmas tree in their living room. She is planning to cook a turkey and watch the boys open their presents on Christmas morning. She can FaceTime her 92-year-old mother and oldest daughter, both in Nebraska, to wish them a merry Christmas. But the best Christmas gift was learning that she would not be returned to prison.
Diana Marquez, Marquez’s adult children, Marquez’s 92 year old mother. Phot provided by Diana Marquez.
While she is now home with her daughter and grandsons, Marquez remains under home confinement and electronic monitoring. She has permission to leave the house for two hours each morning to walk in the nearby park and to pick her grandchildren up from school every weekday afternoon. Any other movement outside of her daughter’s home requires advanced approval and even then, she may not receive it. She cannot attend church services or spontaneously stop at a store. She cannot travel to see her mother or older children.
On December 21, under ongoing pressure from advocates, including formerly incarcerated people, the Justice Department reversed its stance, issuing a new legal opinion that would allow people like Marquez to serve the rest of their sentence at home. “I feel overwhelmed, so excited [and happy,” Marquez told Truthout. “[I’m] having tears of joy to know we don’t have to go back to prison.”
Marquez applied for clemency in 2016 while still in prison; it was denied the following year. In September 2021, she applied again.
“It would be a really big blessing,” she said. Clemency would also allow her to travel to Nebraska and hug her mother. Without clemency, Marquez will remain under the same restrictions until her sentence ends in 2031.
In September 2021, Marquez learned that the Biden administration, which has yet to grant any clemencies, is conducting an expedited clemency screening for people with nonviolent drug convictions on home confinement under the CARES Act. The screening only applies to those who have between 18 and 48 months remaining on their sentence. Marquez, whose release date is March 9, 2031, does not qualify.
That leaves Marquez to wait and hope. “I’m praying and praying for clemency — not just for me, but for all of us, both on home confinement and still in prison,” she said.
On Nov. 12, 2021, California Coalition for Women Prisoners hosted a special virtual event celebrating 25+ years of inside organizing and the consistent publication of The Fire Inside newsletter. Around 200 people gathered for a dynamic program that featured Mariame Kaba as the keynote speaker and remarks from Angela Davis, Victoria Law, Hamdiya Cooks-Abdullah and Piper Kerman, as well as musical performances and poetry readings.
Romarilyn Ralston set the stage with beautiful opening remarks about The Fire Inside, now the longest published newsletter by and for people in women’s prisons in the United States. She said that while inside, this publication “allowed us to express ourselves through poetry and art, different essays about the struggles based inside of women’s prisons,” and that because of CCWP and this vehicle, “thousands of people’s lives have been amplified and lifted up.”
Romarilyn shared deep gratitude for CCWP’s community, the many members and volunteers who have fought tirelessly for liberation for the last two and a half decades. “And now, we are here,” she said, “imagining a world without prisons, imagining a community that is free from harm, imagining a space where all of us can live our best lives and be our best selves.”
Mariame Kaba’s keynote brought this theme of collective care and freedom to life, which isn’t surprising given that her latest book, “We Do This Till We Free Us,” inspired the title. Specifically, her father’s quote in the final section, “Show Up and Don’t Travel Alone,” where he says, “Everything worthwhile is done with other people.”
“Thousands of people’s lives have been amplified and lifted up.”
“In the work of CCWP, I see a reciprocal labor of care embodied and engaged,” said Kaba. “The networks and connections you’ve encouraged, fostered and maintained for over 25 years are the foundation for so many people’s survival. You are constantly inventing and reinventing how we be with and for each other.” Kaba framed CCWP’s model as one of accompaniment – to live and walk alongside criminalized and incarcerated people, to “show up repeatedly, listen without judgement, and offer resources and skills without condescension.”
Kaba ended with the importance of spirituality and generational connection – inviting people to drop names in the chat of ancestors who guide them and us. Dozens of names immediately started bubbling up: Erika Rocha, Patty Contreras, Marilyn Buck, Wolfie, Yogi, Beverly “Chopper” Henry, Rose Braz, Fanny Lou Hamer, Sojourner Truth, Ella Baker, Leonard Peltier, Harriet Tubman, Rosa Parks, Mumia, Charisse Shumate, Theresa Martinez. During the Q&A segment at the end, audience members asked about avoiding the burnout of care work, how to protect survivors while refusing disposability politics, the relationship between policy and abolition, and building community with imprisoned people.
Next, Indigo Mateo came on screen to perform “Afterlife,” an ethereal and futuristic song about her traveling back from an abolitionist future to pick up a loved one coming home from prison.
Angela Davis followed with her remarks about CCWP’s robust support and solidarity for imprisoned people: “As someone who literally was freed by the people, I strongly identify with the theme of this tribute,” she said. Davis congratulated CCWP and its broader coalition and community for recently winning reparations for survivors of forced sterilizations in prison.
Davis used the example of CCWP’s ongoing COVID-19 advocacy to name a crucial aspect of CCWP’s organizing framework: “CCWP knows how to effectively combine attentiveness to the immediate situation with the best possible long-term solution. Therefore, you help to attenuate the isolation required by pandemic-ordered shutdowns through the Writing Warriors program at the same time that you insist on decarceration as the only way to adequately address the impact of the pandemic.” Davis said that this balance “is an important lesson for anyone who wants to ensure that abolition is taken seriously, is strategically approached, and does not distract us from meeting the immediate needs of our people behind bars.”
Testimonies followed from Hamdiya Cooks-Abdullah, Piper Kerman and Victoria Law. Cooks-Abdullah spoke on the people power behind CCWP’s selfless volunteers and staff and encouraged the audience to continue supporting the organization.
Kerman uplifted CCWP’s ability to prioritize conditions and campaigns issues, based on guidance from inside members and networks. Law reflected on the beginnings of her journalism career two decades ago, where she found that CCWP was one of the few groups that not only worked on women’s prison issues but was the only group that was specifically formed to work in solidarity with the organizing that was already happening. She raised a toast to celebrate CCWP’s work, our loved ones who have come home, and our loved ones who will be brought home in the future.
Longtime CCWP members then got on the virtual mic to share various Fire Inside readings from the archives, written by formerly and currently incarcerated members and accompanied by photographs of them and/or of the issue itself. Thao Nguyen gave a heartwarming performance of “We the Common,” a song written for Valerie Bolden (who has since been released) that was performed live at CCWP’s Chowchilla Freedom Rally in 2013. CCWP staff came on screen afterwards to share their own personal histories with CCWP and talk about campaign and program highlights, such as the movement to Drop LWOP (Life Without Parole), CCWP’s Across the Walls visiting program, and racial and gender justice policy work.
Jane Dorotik closed out the program by affirming the importance of inside organizing and two of CCWP’s most generous gifts: the “gift of hope” and the “unparalleled recognition of the expertise inherent in all incarcerated women,” as well as the commitment to working alongside imprisoned people and with their guidance to advance change. “Together, we can build a world without prisons,” she said.
California Coalition for Women Prisoners (CCWP) Development and Communications Coordinator Courtney Hanson can be reached at firstname.lastname@example.org.
National Advocates for Pregnant Women painted a grim picture of pregnant people increasingly being prosecuted around the country for a miscarriage.
The criminalization of Brittney Poolaw’s pregnancy forewarns of a system where all pregnancies that do not end in a live birth can be deemed suspicious.
In January 2020, then-19-year-old Brittney Poolaw was pregnant and needed urgent medical care. She called 911 and was taken to the hospital in an ambulance. She was having a miscarriage at 17 weeks.
Two months later, she was arrested and charged with first-degree manslaughter under Oklahoma law. Earlier this month—after spending 18 months in jail because she could not afford her $20,000 bond—Poolaw, now 21, was sentenced to four years in prison for her pregnancy loss. National Advocates for Pregnant Women (NAPW), which represents Poolaw, say this case is not an outlier—it’s one of over 1,000 such cases across the country in recent years.
The criminalization of adverse pregnancy outcomes—arresting, charging, and incarcerating pregnant people for miscarriages and stillbirths—might seem dystopian, like a plot point from a horror or sci-fi movie. Occasionally, cases like Poolaw’s make national headlines and are rightly judged as ghastly violations of human rights and autonomy. But that laser focus on individual cases can give the impression that these are isolated incidents.
They are not.
NAPW say cases like Poolaw’s have been on the rise in recent years. According to their analysis, from 1973 to 2005 there were at least 413 cases in which a woman’s pregnancy or pregnancy outcome was a determinative factor in her loss of liberty. Since 2005 that number has tripled to over 1,200, indicating a rapid escalation of these types of arrests.
This is despite every major medical organization in the country opposing the use of the legal system to penalize pregnancy loss, and despite studies showing that criminalization of adverse pregnancy outcomes may actually deter pregnant people from seeking medical care, which in turn puts them and their pregnancies at greater risk.
Speaking to Rewire News Group, Dana Sussman, NAPW’s deputy executive director, and NAPW staff attorney Cassandra Kelly painted a grim picture of pregnant people increasingly being prosecuted for charges involving fetal demise. This is happening across the country, in states like Wisconsin, Alabama, and California; for the latter, they cited the cases of Chelsea Becker, who spent over a year incarcerated after being charged with murder for experiencing a stillbirth, and Adora Perez, who is serving an 11-year sentence for a similar charge.
An even more radical framework for criminalizing miscarriage
Describing Poolaw’s case, Sussman said, “I’m not sure if I have the words to describe frankly how problematic this case has been from start to finish.”
Prosecutors argued that Poolaw’s drug use was to blame for her pregnancy loss. When she sought medical attention for her miscarriage, she told hospital staff that she had used meth and marijuana. The medical examiner’s report listed maternal meth use as a contributing factor to fetal demise, but didn’t determine it was directly responsible. And even an OB-GYN testifying for the prosecution said that while drug use can have an effect on pregnancy, it’s unclear what caused the miscarriage in this case.
Under Oklahoma law, manslaughter and murder laws can be applied to a viable fetus, as can child abuse and neglect laws. But Poolaw’s miscarriage occured when she was 17 weeks pregnant, long before a fetus reaches viability. NAPW advocates say Poolaw’s case is one of the earliest they’ve seen; by prosecuting a pre-viability miscarriage as manslaughter, Oklahoma prosecutors are pushing the law’s bounds, indicating a shift toward an even more radical framework for criminalizing pregnancy loss.
NAPW is a nonprofit organization that does pro bono criminal defense, advocacy, public education, and organizing around the criminalization of pregnancy loss.
The particulars of Poolaw’s case are a web of legal booby traps. “There has to be a causal link when we’re talking about manslaughter,” Sussman said. “In Brittney’s case, it was ‘possession of an illegal substance.’ Of course, possession on its own, even by their framing, wouldn’t cause fetal demise. It’s the consumption, but in Oklahoma, from what we understand, possession has essentially been construed as also covering consumption.”
What we see happening with the criminalization of pregnancy loss is not unlike what we see with the increasingly volatile state of abortion access in the country. Lawmakers and prosecutors start by encroaching on the bodily autonomy of pregnant people in a way they know will be most palatable to society. They target circumstances most fraught with stigma and taboo: later abortion bans, restrictions on young people accessing abortion, criminalization of drug use during pregnancy. But Sussman says they will not stop there.
It comes down to prosecutors claiming the pregnant person put the fetus at “risk of harm,” she said, a measure of liability with drastic potential for expansion.
“We’ve tracked all cases that we can find in which someone has been arrested and/or prosecuted or experienced another deprivation of liberty in relation to their pregnancy, and the vast majority of those cases involve drug use,” Sussman said. “It’s not all though. So, we do see cases where someone fell down a flight of stairs and was charged with some criminal allegation creating a risk of harm to the fetus.”
But NAPW wants to make clear that pushing back against the criminalization of pregnancy loss isn’t about viability or substance use; pointing out these legal intricacies is not to concede that viability or the pregnant person’s behavior should be used to determine whether manslaughter or other criminal charges are appropriate.
Instead, NAPW staff stress that the criminalization of any pregnancy loss is wrong. If lawmakers and prosecutors intended to stop with cases involving post-viability pregnancies, or miscarriages involving allegations of drug use, that would still warrant the abject horror that Poolaw’s case has been greeted with.
“It is a slippery slope. We are on the slope.”
A critical part of this case is Poolaw’s Indigenous background—she is a member of Comanche Nation; the history of the criminalization of adverse pregnancy outcomes is, unsurprisingly, deeply rooted in racism and classism.
“So much of this has its tentacles in the ‘crack baby’ obsession in the ‘80s and ‘90s targeting poor Black women,” Sussman said. She cites a 1989 policy in which the Medical University of South Carolina entered into an agreement with local law enforcement to surreptitiously drug test and report pregnant women, so that police could arrest them days and sometimes just hours after giving birth. The population that the hospital was serving at the time was predominantly Black and lower income.
Some women were taken to jail while still bleeding from giving birth. Others were arrested and jailed while they were pregnant, even though the prison could not provide prenatal care or drug treatment. When the incarcerated women went into labor, they were returned to the hospital in shackles. One woman was handcuffed to her bed throughout her delivery.
The Supreme Court heard the Center’s challenge to the policy and, in 2001, ruled in their favor. But the same type of disparate impact remains the reality of criminalized adverse pregnancy outcomes today. Sussman stresses that cases like Poolaw’s will affect marginalized pregnant people most—Black, trans and nonbinary, disabled, undocumented, and lower income pregnant people are all at an increased risk of having their pregnancy losses criminalized.
“We all know that pregnancy is grossly understudied and there’s so much still unknown,” Sussman says. “Exercising too vigorously, going downhill skiing, a lot of things [involve risk], but because of the war on drugs and because of racism and because of classism and lots of other things, the focus has been disproportionately on drug use. But it is a slippery slope. We are on the slope.”
Criminalization of pregnancy loss is rapidly expanding in scope, in ways that continue to target marginalized people. Sussman said NAPW is now seeing cases where a pregnant person faces allegations of lack of prenatal care as part of a larger charge. This is particularly insidious considering which communities lack access to proper prenatal care, and the fact that for low-income families, accessing prenatal care means interacting with a state system that has the potential to surveil them, which in turn leaves them vulnerable to prosecution if they experience pregnancy loss. NAPW is even starting to see cases where parents of newborns become ensnared in the legal system for allegations of drug use during breastfeeding.
Poolaw’s case forewarns of a system where all pregnancies that do not end in a live birth can be deemed suspicious. As Texas SB 8, which bans nearly all abortions after a fetal heartbeat is detected, dominates headlines, it’s critical to understand how criminalizing abortion and criminalizing pregnancy loss intersect. Conservatives in Texas have been quick to assure voters that pregnant people themselves cannot be charged under the anti-abortion law, but the reality is that pregnant people around the country are already being charged for not carrying a pregnancy to term. And while medication abortion is safe and effective, an increased demand for it presents unique challenges to populations of pregnant people who are more likely to have their pregnancy losses criminalized.
The increasing criminalization of adverse pregnancy outcomes also speaks to a deep-seated stigma and taboo surrounding miscarriage and infertility.
“It’s premised on this false notion that everyone can guarantee a healthy pregnancy and that it is somehow your failure, your incapacity, your fault, something you did or something you didn’t do, that caused the pregnancy loss,” Sussman said.
“We of course know how common pregnancy loss is and how it’s been really sort of understudied, as so many sort of health issues that predominantly affect women are, and thinking about sort of all of the economic, social, structural reasons why people might experience pregnancy loss … And yet here we are holding women criminally liable when they can’t guarantee a healthy pregnancy.”
Sussman said Poolaw now has a short window of time to decide whether to appeal. Four years is the minimum sentence for manslaughter in Oklahoma, and she could have gotten life in prison, Sussman said.
“I think she has been through a deeply, deeply traumatic experience,” Sussman said. “It’s trauma layered upon trauma. And so we’re going to be driven by what she wants. But regardless of what decision she makes, it’s not the end of our fight in Oklahoma because more cases are coming.”