39 Buff. L. Rev. 737 (1991)
Abusive Prosecutors: Gender, Race & Class Discretion and the Prosecution of Drug-Addicted Mothers

handle is hein.journals/buflr39 and id is 745 raw text is: Abusive Prosecutors: Gender, Race & Class
Discretion and the Prosecution of
Drug-Addicted Mothers*
It came as a shock.., and then I was pretty angry. Addiction is a medical
problem. You wouldn't put a heart patient in jail for having a heart attack
And you wouldn't prosecute an epileptic for having a seizure ... It's been a
nightmarel ... My baby was taken away from his mother for the first ten
months of his life; there was no bonding with his mother. If this was to pro-
tect my baby, [taking him away] was more damaging... And what about
my other children?... And one more thing, after all the publicity in my case,
the prosecutor later prosecuted a thirty-six year old white woman lawyer to
show he wasn't prejudiced; but the judge dismissed her case quick
Ms. K. Hardy, first Michigan prosecution for delivering drugs to unborn.1
S OME pregnancies are being transmogrified into a front in the war on
drugs. Mothers are being prosecuted; their newborns taken away.
In these selective anti-drug crusades, prosecutors claim they are carrying
out their appropriate role in executing the will of the American people in
the war on drugs. These prosecutors typically say they just want to
teach some drug-addicted pregnant women a lesson: if you use crack/
cocaine while pregnant, society will prosecute you for distributing drugs
to your unborn.
Others, however, do not see these prosecutions as reflecting the leg-
* Copyright  1991, Dwight L. Greene and the Buffalo Law Review. All rights reserved.
*   Associate Professor of aw, Hofstra University; B.A. Wesleyan, 1970; J.D. Harvard, 1974.
The author writes with the double consciousness of an outsider who is inside, experiencing two
different Americas; see, eg., Lawrence, If He Hollers Let Him Go: Regulating Racist Speech On
Campus, 1990 DuKE L.J. 431, 434-35; who knows the terrain up from civil rights, see R. BRooKs,
RETHINKING THE AMERICAN RACE PROBLEM 20 n.24 (1990); and who was a federal prosecutor in
New York City. Thanks are due to many; but especially to Professors Twila L. Perry, Paulette M.
Caldwell, Dorothy E. Roberts, Lanie Guinier, Martha L. Fineman, Robert H. Hammel, Wendy M.
Rogovin, and for his support, Dean Stuart Rabinowitz; and to my research assistants Jaime Rodri-
guez, Ruby Matin and Fernando Morales.
1. Interviews for the purposes of this article by author and assistants with Ms. Kimberly Hardy
on Friday, February 8, 1991 and December 3, 1990. (Memorandum of interviews on file with au-
thor). In April, 1991, an appellate court reversed nisi prius and dismissed the felony complaint
against Ms. Hardy based on its interpretation of the drug statute used by the prosecutor. The Michi-
gan Supreme Court in July, 1991, denied the prosecutor's application for leave to appeal. People v.
Hardy, 188 Mich. App. 305, 469 N.W.2d 50 (1991), appeal denied, 91346 (Mich. 1991).

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