User:Catherineaston/Whitner v. South Carolina

Background
Whitner v. South Carolina began as a State prosecution of Cornelia Whitner in the state of South Carolina. Whitner was charged with child neglect of her first two children while she was pregnant with her third. In December 1991, she pled guilty and was sentenced to probation with the requirement she no longer uses drugs or alcohol, and that her children be removed from the home and given to family members. If Whitner was found in violation of the drug or alcohol prohibition, she would be sentenced to ten years in prison. Whitner was charged with child neglect again on February 5, 1992, after her third son was born and tested positive for cocaine. She pled guilty to criminal child neglect under section 20–7–50 of South Carolina Children’s Code. “Any person having legal custody of any child…who shall…refuse or neglect to provide…the proper care and attention for such child…so that the life, health or comfort of such child…is endangered or is likely to be endangered, shall be guilty of a misdemeanor”.

The argument of how the state of South Carolina defined a “person” was debated in cases like State V. Horne (1984) where a man stabbed his nine months pregnant wife to death, also killing the child.

Supreme Court of South Carolina Decision
Opinion of the Court

Three justices formed a majority opinion and agreed with a concurrence written by Justice Jean Toal. The court held in concurrence with the precedent set by Hall v. Murphy (1960) that viable fetuses are considered persons, and that they share certain legal rights and privileges. The following cases Fowler v. Woodward (1964) and State v. Horne (1984) all upheld the claim made in Hall v. Murphy. Cornelia Whitner’s child was found to have cocaine metabolites in their system due to ingestion of cocaine during the third trimester of her pregnancy. Whitner was charged with criminal child neglect in 1992, sentenced to 8 years in prison.

South Carolina Law had previously determined that the court is not able to make decisions surrounding a case where the defendant pled guilty to a nonexistent offense. In legal writing, the court lacks subject matter jurisdiction for this scenario. In the majority opinion, the court rejected this notion that a fetus is not included in South Carolina Children's Code ''S.C. Code Ann. § 20-7-30 (1985).  The court also rejects the notion that S.C. Code Ann. § 20-7-50 (1985)'' does not include neglect towards a viable fetus. The court also states that comparing cocaine use to casual drinking is an unfair and inaccurate comparison, shutting down Whitner’s argument attempting to coalesce the two as the same misdeed."Our interpretation of the statute is based primarily on the plain meaning of the word “person” as contained in the statute. We need not go beyond that language. However, because our prior decisions in Murphy, Fowler, and Horne support our reading of the statute, we have discussed the rationale underlying those holdings. Whitner v. South Carolina 328 S.C. 1, 492 S.E.2d 777"Whitner claimed that she was not given adequate counsel, and that her lawyer allowed her to be charged for a crime that was inapplicable to her circumstances. The PCR court was determined to have erred in their previous decision agreeing with Whitners claim. The court rejected the claim that child neglect was not applicable to a fetus under ''S.C. Code Ann. § 20-7-50 (1985)''."To prove ineffective assistance of counsel, a PCR applicant must show (1) deficient performance by her attorney and (2) prejudice resulting therefrom. Whitner v. South Carolina 328 S.C. 1, 492 S.E.2d 777"The court determined that there was no violation of fair notice from a constitutional standpoint. There was no vagueness between the words “child” and “fetus”. Whitner pleaded ignorance to well-known dangers of cocaine use during pregnancy. The court determined that the right to privacy does not encompass personal cocaine use."Use of crack cocaine is illegal, period...We do not see how the fact of pregnancy elevates the use of crack cocaine to the lofty status of a fundamental right. Whitner v. South Carolina 328 S.C. 1, 492 S.E.2d 777"Concurrences

In accordance with Justice Toal, Justices Burnett and Waller concur. While Burnett and Waller did not present their own opinion in writing, they simply concurred with the opinion presented by Justice Toal. Burnett and Waller concur that a viable fetus is included within the definition of a child, that Whitner received adequate counsel, and that her constitutional rights were not violated.

Dissents

In the case of Whitner v. South Carolina, Justices Finney and Moore presented dissenting opinions in regards to the courts decision in reversing the granting of the petition for Cornelia Whitner’s Post-Conviction Relief (PCR).

In his dissenting opinion South Carolina Supreme Court Chief Justice Finney brought about his main argument in disagreement with the majority’s opinion to reverse the decision of granting Whitner with PCR. He begins his dissent by stating that the main issue presented to the court was whether the term ‘child’ identified in the South Carolina Children’s Code, ''S.C. Code Ann. § 20-7-30 (1985),'' included fetuses. C.J. Finney addresses additional issues that he disagrees with in regards to subject matter jurisdiction surrounding the terms of ‘neglect’ and ‘harm’. Justice Moore also presents a dissenting opinion arguing that the failure of the legislative branch to pass bills addressing the issue of drug use during pregnancy is evidence in itself that child abuse and neglect are not intended to apply in instances of this matter. Moore asserts that the majority opinion’s equal treatment of viable fetuses and children produces several inequities. Both justices agree in the issue that the terms used by the majority in its holding are ambiguous in nature and should have been resolved in the defendants favor.

Implications
Cornelia Whitner admitted to using crack cocaine during pregnancy and pled guilty to violating South Carolina’s state statute S.C.Code Ann. §20-7-50 (S.C.Code Ann. §20-7-50, 1985) after her newborn son, Tevin Whitner, was found with cocaine in his system. To preface, this statute states that any person with legal custody who refuses or neglects to provide proper care to a child or helpless person, therefore endangering the life, health, or comfort, will be found guilty of a misdemeanor and punished within the discretion of the circuit court. The Court had extended the statute’s terminology of the word “child” to encompass viable fetuses and Whitner was sentenced to 8 years in prison. While the court ruled that Whitner’s harsh sentencing was based upon a decision that recognized child neglect, there are other factors that should be considered as to why this carried such a high penalty. Whitner had been a mother to two other children before whom she had lost custody due to earlier incidents with the law relating to illegal drug use (Casto, 1997).

Whitner v. Connecticut brings up questions that extend beyond Whitner’s own conviction and concerns issues pertaining to mothers with drug addiction and government intrusion. These cases are increasing as a response to a State interest in protecting viable fetuses, and mothers who are charged are subjected to surveillance, which would indicate drug use during pregnancy. These screening reports are disproportionate, typically targeting low-income, Black mothers, with studies showing that Black women are ten times more likely to be reported for drug use during pregnancy in comparison to White women even though rates of drug use is about the same in both demographics. Wealthy mothers are also able to afford private physicians who are less likely to implement screening procedures due to financial incentive and incentive to preserve business. Government surveillance plays a much more significant role in the lives of low-income mothers, which can attest for another factor in the unequal report statistics due to utilizing public hospitals, reliance on welfare, and probation officers. These institutions that contribute to the systematic prosecution of Black women work to target examples of “bad” parenting and have identified Black women as the perpetrators and deviants of normative standards of motherhood. Harsher prison sentences, persistent government supervision, and Child Protection Service intervention work against disadvantaged demographics and devalue Black motherhood through the perpetuation of stereotypes, oppression, and subordination of Black women and the Black community in America. Criminalization of drug abuse during pregnancy has been validated and legitimized as means for protecting the welfare of viable fetuses, but it avoids acknowledging the flaws in our social system that create these issues such as poverty, racism, addiction, and improper health support and instead works to punish a simplified version of bad behavior. While these narratives are often founded upon promoting fetus health, they often work to do the opposite by creating fear for drug-addicted mothers to seek out help and support (Dailard & Nash). For a woman who has used drugs during her pregnancy, there are few options aside from avoiding surveillance and being caught or resorting to abortion (Frug, 105-117).

Precedent used in Whitner v. South Carolina
Hall v Murphy (1960)- In 1960, the South Carolina Supreme Court applied the South Carolina wrongful death statute to an infant that died from injuries sustained while in utero. The Court determined that a fetus was a person separate from its mother once it had reached viability.

Fowler v Woodward (1964) - In this case, the South Carolina Supreme Court applied Hall v Murphy's precedent in understanding that someone can still be liable for wrongful death if a fetus is not born alive as long as injuries were sustained during viability.

State v Horne (1984) - The South Carolina murder statute was applied to a man who killed his nine months pregnant wife and was tried for both her murder and the murder of their child. The South Carolina Supreme court ruled that a fetus must be regarded as a person both civilly and criminally. Thus feticide was recognized under South Carolina Law.

Precedent from Whitner used in later cases
Ex Parte Ankrom: Alabama (2013)

In 2013 the Supreme Court of Alabama decided whether Hope Ankrom and Amanda Helaine Borden Kimbrough's use of controlled substances during their pregnancies made them liable for chemical child endangerment. Hope Ankrom's child was born alive but with cocaine in its system, and Ankrom tested positive for cocaine and marijuana during her pregnancy. Amanda Helaine Borden Kimbrough's child died due to her use of methamphetamine during her pregnancy. Both women filed motions to dismiss based upon the state statute not including an unborn fetus within the definition of a child. The court addressed these claims holding that the court of criminal appeals correctly interpreted the state statute, affirming that the chemical endangerment statute applied to unborn fetuses and affirming both women's convictions. The court of criminal appeals cited Whitner v. South Carolina as a particularly compelling precedent in their finding of the interpretation of the chemical endangerment statute.

State v Aiwohi: Hawaii (2005)

The Supreme Court of Hawaii applied the precedent in Whitner v. South Carolina in 2005 when they decided if Tayshea Aiwohi's use of methamphetamine and the subsequent death of her fetus constituted manslaughter. The court cited Whitner as an example of case law in which the South Carolina court found that South Carolina statutes plain language maintained space for a viable fetus to be included in the definition of a child. However, the Hawaii Court of Appeals did not sustain a similar interpretation of the Hawaii statutes. The court ruled that the circuit court had erred in denying Aiwohi's motion to dismiss because her conviction was based upon insufficient and impermissible evidence. They felt that the evidence was insufficient due to the lack of textual implication within the Hawaii statute that a woman's conduct while pregnant justifies the criminalization of whether or not her baby is born alive.

State v Ard: South Carolina (1998)

In 1998 The Supreme Court of South Carolina utilized Whitner’s precedent to demonstrate that South Carolina criminal statutes assert that abuse or murder of a viable fetus is the same as that of a child or person. In this case, Ard was charged with the murder of both his pregnant girlfriend and their unborn but viable son. The South Carolina Supreme Court upheld the conviction of the lower court and held that the legislature intended to include the murder of a viable fetus within the definition of the murder of a child.

State v Deborah J.Z : Wisconsin (1999)

The Wisconsin Court of Appeals determined whether a woman could be charged with attempted first-degree homicide and reckless injury for drinking alcohol during late-term pregnancy. In 1999 Deborah J.Z was drinking alcohol before being taken to a hospital and getting a cesarean section. Her child had some symptoms of fetal alcohol syndrome at birth. The Court looked at Whitner to determine other states' precedents concerning the criminalization of conduct referencing a viable fetus. They held that Whitner was the only instance of a court of appeals upholding the criminalization of maternal acts upon unborn fetuses. The Court of Appeals determined that under Wisconsin statutes, an unborn fetus is not constituted as a person because the statutes require that a person be "born alive". They then reversed Deborah J.Z.'s conviction because she could not be found guilty of first-degree attempted murder or reckless injury as these charges did not extend to a viable fetus.

Furgison v City of Charleston: Supreme Court of the United States (2001)

In 2001 the Supreme Court of the United States decided whether it was unconstitutional for hospital officials to drug test pregnant women without their consent for law enforcement purposes. In this case, The Medical University of South Carolina responded to the increase in cocaine use in pregnant women by creating a system with police to un-consensually drug test and charge women who tested positive. Whitner was cited to recognize the precedent applicable to this conduct in South Carolina. The Court ruled that if the patient did not consent to the procedure and the results were used for law enforcement purposes, then it was an unconstitutional search.

Kilmon v State : Maryland (2006)

Regina Kilmon gave birth to a child that had cocaine in his system. Kilmon was charged with reckless endangerment, second-degree child abuse, contributing to child delinquency and possession of a controlled and dangerous substance. When Kelly Lynn Cruz gave birth to her child, she and the infant had cocaine in their systems. She faced the same charges as Kilmon. In 2006, the Maryland Court of Appeals decided whether a woman's use of cocaine during pregnancy made her criminally liable. The Court cited Whitner as an example of a court ruling that upheld the legitimacy and legislative intent of criminalizing cocaine use during fetal viability. The  Maryland Court of Appeals ruled that, in their view, the Maryland legislature did not intend to include prenatal conduct within the scope of culpability for child abuse or reckless endangerment.