Home News Tribune (NJ) June 15, 2004 .
MIDDLESEX COUNTY:
A judge was wrong to sentence a pregnant drug-addicted woman, who violated probation, to a prison term solely to safeguard the health of her fetus, a state appeals court ruled yesterday.
The appeals court found the judge, sitting in Superior Court, New Brunswick, did not act malevolently when he sentenced Simmone Ikerd to a state prison term, but there was no legal support for his decision to send her to the Edna Mahan Correctional Facility for Women in Clinton last year.
Ikerd, now 34, spent nine months at the women’s prison in Hunterdon County, and was released on parole after she gave birth to a healthy baby, according to the state Department of Corrections and the court’s decision.
“We hold in this appeal that a pregnant, drug-addicted woman who has violated the conditions of her probation cannot be sentenced to prison for the avowed purpose of safeguarding the health of her fetus,” the appellate court wrote. “To have done so is contrary to law and constituted an abuse of discretion.”
On Jan. 29, 1998, Ikerd, who has lived in New Brunswick and Sayreville, pleaded guilty to theft by deception for welfare fraud and, two months later, was sentenced to five years probation. She was also ordered to complete a drug-treatment program, and to pay $2,800 in fines and restitution with a payment plan of $30 a month.
On Feb. 14, 2003, she appeared before another judge because she had allegedly violated her probation: She had only paid $19 or $20 in restitution and was also accused of failing to comply with other terms of her probation, according to court papers.
She remained drug-addicted, although she said she was undergoing treatment through a methadone clinic, according to the decision.
Although, according to the judge’s count, Ikerd had appeared in court 35 or 38 times, probation records showed she had been accused of violating probation two other times, but one of those charges was withdrawn, according to the court papers.
During the February hearing, Ikerd acknowledged that a March 30, 2001, urine drug test was positive, that she had failed to pay fines and that she did not cooperate with prenatal testing scheduled at a local hospital, according to the decision. (That testing was a condition imposed by the probation department after its officers learned she was pregnant, but she told the judge she had to leave the testing facility to take her daughter to see a doctor for treatment of strep throat.)
At the hearing, the state asked the judge to jail Ikerd — who was 11 weeks pregnant and needed high-risk prenatal care — because of the risk that drug abuse posed to both her and her fetus, according to the court papers.
The judge — who is not named in the court’s decision — said Ikerd was a bright, educated woman who was “going to use drugs no matter what we do.” But he asked, “How can I ignore the fact that she is pregnant?”
During a discussion between the attorneys, judge and probation officer, the judge told the defense attorney to speak to his client about punishment, saying “If you want to make my weekend, tell me that Miss Ikerd said, ‘Judge, sentence me to the minimum amount of time at Edna Mahan, so I know that this child can be born.’ Please do that. Tell me that she wants to go to jail, so she can save the baby.”
Through her attorney, Ikerd then asked the court for mercy and for a minimal sentence at the state women’s prison, according to the decision.
The judge sentenced her to three years behind bars, with a stipulation that she serve at least 18 months, although she received credit for 261 days — a little more than eight months — she had previously served, according to the court papers.
Yesterday, the appellate court said it recognized that a prison term can legally be imposed on a defendant because of an “inexcusable failure to comply with a condition of probation.” But Ikerd’s punishment “resulted solely from her status as a pregnant addict,” the court wrote.
J. Michael Blake, the assistant deputy public defender who argued the case, said he was happy with the court’s decision, which he described as “very well-reasoned.” He said it would provide necessary guidance to the law division in the future.
He said he did not know what happened to Ikerd’s child after she gave birth.
When an expectant mother is in prison, a social service worker at the institution interviews her to see if there is someone she wants to designate as a guardian or caretaker for her baby, said Kim White, a spokeswoman for the state Department of Corrections.
The prison social worker works with a hospital social worker when the inmate is admitted to give birth. The infant does not return to the prison with the mother.
Yesterday, John Hagerty, a spokesman for the state Attorney General’s Office Division of Criminal Justice, said the Middlesex County Prosecutor’s Office handled the appeal of the case, but his office would review the appellate court’s opinion and consult with the Prosecutor’s Office to determine if a further appeal is warranted.
The assistant prosecutor who handled the appeal could not be reached for comment yesterday afternoon.
With its decision yesterday, the appellate court vacated Ikerd’s prison sentence, reinstated her original probationary sentence, and ruled that no further proceedings in the case were required.