Sixteen months after her arrest, Katie Darovitz — one of at least 500 women prosecuted under Alabama’s toughest-in-the-nation chemical endangerment law — has had her case dismissed.
Darovitz’s story, first chronicled by ProPublica last year, was especially wrenching: She has severe epilepsy, and doctors told her that the medications she was using to treat her condition carry a risk of miscarriage and birth defects.
When she got pregnant in 2014, she discovered marijuana could control her seizures and had not been associated with birth defects. But when she gave birth, hospital staffers turned over her positive marijuana screen to a social worker who turned it over to law enforcement officials. Two police officers showed up at the house Darovitz shared with her common-law husband and their two-week-old son, handcuffed her, and hauled her off to jail. Though her son, Will, was in good health, Darovitz was charged with a Class C felony — punishable by up to 10 years in prison.
Darovitz’s mother-in-law, Debi Word, said the dismissal came as a relief. But it was a long, grueling process that required a battery of national advocacy groups, pro-bono lawyers, a GoFundMe campaign, and every penny and moment that Darovitz’s family could spare. Among the casualties: Word’s marriage and Darovitz’s Social Security disability payments — her only source of income. “What we have gone through has been just horrible,” Word said.
As ProPublica and AL.com reported last year, Alabama’s chemical endangerment law makes it a felony to “knowingly, recklessly, or intentionally” cause a child to be exposed to controlled substances and drug-making chemicals. The statute carries sentences up to 10 years in prison if a child is unharmed and up to 99 years if a child dies.
The 2006 statute was initially aimed at parents who exposed children to dangerous methamphetamine labs, then was reinterpreted by prosecutors and courts to target women who used drugs during pregnancy. That tangled history, combined with a lack of law-enforcement guidelines, have led to wide disparities in how the law is used and troubling instances of overreach and abuse.
The Alabama legislature amended the law this spring to address one of its biggest problems: vague language that allowed women to be prosecuted even when they used controlled substances, such as opiate painkillers or methadone, that were legally prescribed by their doctors. Under the amendment signed by Gov. Robert Bentley last month, such women are now exempt from punishment.
Prosecutors have defended other aspects of the law, saying it’s an important tool in dealing with rampant addiction — and sometimes the only way to force women into treatment. According to the ProPublica/AL.com investigation, the vast majority of chemical endangerment cases are resolved by women agreeing to go into diversion programs or to drug court, although women who fail those programs often go to jail.
Darovitz’s case shows the toll such cases can take on families, even if women manage to avoid incarceration. “The power of the state is amazing to see,” said Jose Guzman, a lawyer in Columbus, Georgia, who negotiated the dismissal. “The state can really wreck your life.”
Though Darovitz’s case is unusual in some of its details, in other ways it is typical of the cases ProPublica and AL.com examined. Like Darovitz, 20 percent of mothers charged with chemical endangerment used marijuana only; like Darovitz, about a quarter had no prior criminal record. And like Darovitz, many of the mothers were turned over by hospitals, which sometimes conducted drug tests without mothers’ knowledge or consent.
In Russell County in eastern Alabama, where Darovitz and her family live a few miles from the Georgia border, at least 19 mothers have been charged with chemical endangerment of an unborn child since 2006. It’s not unusual for a chemical endangerment defendant in the county to face a $2,500 fine on top of all the other fees.
That’s what Word’s family was hoping to avoid when Darovitz was arrested. Leery of public defenders who they feared might not put much effort into the case, they originally hired a Birmingham lawyer who charged them a $2,000 retainer. But the case stalled; eventually Word and her family found Guzman through the medical marijuana advocacy group Patients Out of Time.
By then Darovitz, who cannot work, had lost her Medicare and Social Security disability payments for unrelated reasons, Word said. With no health insurance or income, she couldn’t afford the $300 monthly bill for her epilepsy medication, so she again controlled her seizures with medical marijuana — which has complicated the process of getting her benefits reinstated. “Because she used marijuana, they say she was just a drug user,” Word said. “To them, it looks like she’s being noncompliant.”
The costs piled up, eventually exceeding $6,000, Word said. Just getting Darovitz’s medical records from the hospital cost $150 — and it wasn’t until this past spring, after Guzman was hired, that they found a toxicology report stating that the drug tests were unconfirmed and could not be used in court. According to Guzman, there is no record that officials at East Alabama Medical Center, where Darovitz gave birth, or prosecutors ever conducted a second test to confirm the results.
A spokesman for the hospital did not return a phone call or email.
Ultimately, Guzman was able to negotiate a deal with the Russell County District Attorney’s office, which agreed to drop the charges if Darovitz signed a letter saying she intended to move to a state, such as Georgia, where medical marijuana is legal and if she agreed not to sue the county. (There is no deadline by which Darovitz would have to move, and Alabama’s governor recently signed a bill decriminalizing medical marijuana oil.)
“Negotiating a non suit agreement is common practice,” Russell County District Attorney Ken Davis said in an email. “We didn’t require the defendant to move anywhere,” he added, but he acknowledged, ‘[T] he fact that she was moving to a state where [she] might get a prescription not available in Alabama was a factor in the decision to dismiss the pending charge.”
The dismissal order was filed in April. “We’ve been living in peace,” Word said.