The case of Baby Clevenger vs. The Honorable Dennis Rolf can be boiled down to two sentences:
“Caging a pregnant woman for isolated marijuana use should put knots in our stomach. It is fundamentally wrong, and we cannot hold ourselves out to the world as the guiding beacon of justice and civility if we tolerate something like this.â€
That’s the penultimate paragraph in a writ of prohibition filed Thursday in the Missouri Court of Appeals by Saline County District Defender Matt Palmer on behalf of his client, Blair Clevenger.
Last week, Rolf sent Clevenger to prison on an old drug charge after she smoked a joint to ease morning sickness while free on bond. Rolf arrested and jailed Clevenger and held her on $15,000 cash bail. She’s poor, so she couldn’t afford to buy her way out of jail. Then, after prosecutor Tim Thompson said during a hearing that he was worried about Clevenger’s unborn child, Rolf sent her to prison.
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This sort of thing happens in rural Missouri courtrooms all too often. Never mind that Clevenger was thriving in a sober-living facility as she battled addiction; that a county jail, let alone a state prison, is an awful place to experience pregnancy; or that the state’s Department of Probation and Parole recommended that Clevenger remain free as she was successfully making her way through treatment programs. The combination of a tough-on-crime prosecutor and judge means it’s prison time for people like Clevenger.
It’s no wonder that Saline and Lafayette counties, where Rolf is a judge, have among in Missouri, and that, in turn, Missouri has the second highest rate in the nation of people in prison on probation or parole violations.
Writs challenging judicial decisions on probation violations aren’t generally very successful. The law gives judges wide latitude to determine how defendants should be punished. But in this case, Palmer argues, Rolf is trampling on the civil rights of Clevenger, on behalf of her unborn child, while also creating a situation that is significantly more damaging for Baby Clevenger than any potential harm from the smoking of a joint to ease tension and pain.
“Fetal protection is not a lawful exercise of imprisonment in the State of Missouri,†Palmer writes, arguing that Rolf’s action violated Clevenger’s 14th Amendment rights to equal protection. “Allowing a court to consider a person’s pregnancy status in determining punishment would be to greenlight the judicial hijacking of their reproductive organs, a practice that, by its nature, would disparately punish women.â€
The writ compares Clevenger’s case to that of a Lafayette County man decided by Rolf in the same time period. He, too, was on probation for a drug offense. Unlike Clevenger, he actually flunked out of the treatment program he entered, and was hit with a probation violation. He entered another program, and at a hearing similar to the one held this week for Clevenger, Rolf let him continue his probation rather than go to prison.
Palmer knows that simply by filing this writ, he’s made life more difficult for himself, and potentially his other clients in Saline County. That’s simply the reality of rural justice in Missouri. Public defenders’ offices, long overworked in the state, tend to have few staff members in most rural counties, and many times they are just out of law school. Every day, they walk into courtrooms where judges and prosecutors wield most of the power, and generally don’t take kindly to public defenders gumming up their dockets with motions that seek to protect the rights of all defendants.
So even if Palmer were to win on the Clevenger writ — perhaps especially if he wins — he’ll walk into the next law day facing a judge who doesn’t like to be questioned. That was obvious when Palmer told Rolf he planned to file a writ on the day Clevenger was told she was going back to prison.
“What kind of writ do you think you’re going to get out of this?†Rolf asked Palmer. “She violated her probation.â€
Even so, the probation office believes the best place for Clevenger is in treatment, where the sober living home said she had been doing well. The question now is, did Rolf send Clevenger to prison because of Baby Clevenger, or in spite of the unborn child that is due in March?
“Simply put, no reasonable person, would lift a pregnant woman from a home where she has been actively sober for six months, send her to prison amid a deadly global pandemic, all because she used marijuana to calm debilitating morning sickness,†Palmer writes. “Such an act shocks the conscience.â€
It’s also bad medicine. Palmer included three affidavits from physicians who are national experts in prenatal care with his writ. All three said that jailing a pregnant woman for smoking a joint is a horrible decision as it relates to the health of both the mother and Baby Clevenger.
“Every major medical and public health association to address the issue of pregnant women and drug use has taken a position opposing punitive approach as dangerous to maternal, fetal, and child health,†wrote Dr. Carolyn Sufrin, an associate professor at Johns Hopkins University School of Medicine, and author of the book “.†“Punitive state responses to pregnant women who engage in substance use leads to an increased risk of harm to children, mothers, and families.â€