An Alabama Shooting Victim Could Be Prosecuted for Her Fetus’s Death
Here is what happened to 27-year-old Marshae Jones of Pleasant Grove, Alabama: Last December, she got into an altercation with another woman in front of the Dollar General store where they both worked, according to police. The argument escalated into a fistfight, which prompted the other woman to pull out a gun and shoot Jones in the stomach. Jones, who was five months pregnant, survived; her fetus did not.
Police elected not to pursue charges against the shooter, after determining that Jones instigated the confrontation and the other woman acted in self-defense. They did, however, arrest Jones in connection with the loss of her pregnancy.
"The investigation showed that the only true victim in this was the unborn baby," Pleasant Grove police lieutenant Danny Reid said, describing an incident in which Jones was shot. In April, a grand jury indicted her on manslaughter charges, explaining that she had "intentionally caused" the fetus's death by "initiating a fight knowing she was five months pregnant."
A zeal for protecting fetuses is not unique to this Jefferson County grand jury. Last fall, nearly 60 percent of voters in Alabama backed a state constitutional amendment that affirms "the sanctity of unborn life" and reiterates a commitment to protecting their rights "in all manners and measures lawful and appropriate." In May, Republican governor Kay Ivey signed the Alabama Human Life Protection Act, which, if court challenges to its implementation fail, would ban abortion in the state even in cases of rape and incest. The Act is part of a decades-long conservative push to overturn Roe v. Wade by arguing that fetuses have "personhood," and the practice of affording them legal rights and privileges—including, as in this case, the protections afforded by the justice system—helps the anti-choice movement bolster its argument.
Prosecutions of people who commit crimes that result in fetal harm are not new or particularly controversial. According to the National Conference of State Legislatures, at least 38 states have enacted laws that allow for separate charges when a violent act perpetrated against a pregnant woman results in the death of her fetus. The law sensibly recognizes that such crimes have two victims, not one.
Criminal prosecutions of pregnant women for their own miscarriages or stillbirths, however, are different—a natural extension of the right-wing talking point that the state's obligation to "protect life" requires that it ban abortions, too. Earlier this year, feminist writer Jessica Valenti highlighted how anti-choice laws are landing pregnant women in prison. In Louisiana, a woman who sought treatment for unexplained vaginal bleeding was jailed on second-degree murder charges; she was released more than a year later, when medical records proved she had miscarried. In Iowa, officials charged Christina Taylor with attempted feticide after she fell down the stairs. Now, Marshae Jones joins their ranks—this time, for her failure to foresee that arguing with a co-worker might get her shot in the parking lot.
Whatever the law says—and whatever ideologues think the law says—the prosecutors who enforce it are responsible for deciding which cases to pursue, which ones to plead out, and which ones to drop. Last month, a coalition of 42 state and local prosecutors signed a pledge not to enforce anti-choice laws that, as the signatories put it, "divide our community, create untenable choices for women and healthcare providers, and erode trust in the justice system." This system of prosecutorial discretion is the first line of defense against absurd results that, in the district attorney's estimation, would not make the public any safer.
On Monday, Jones's lawyers filed a motion to dismiss the charges, calling the punishment of a shooting victim for her fetus's death "unconscionable." And in Jefferson County, Bessemer Cutoff district attorney Lynniece Washington—the first black woman D.A. in Alabama's history—has already hinted that this power of her office could come into play here. In a statement, she promised to "respect" the grand jury's decision. But, she emphasized, "I have the discretion and power to do what I please."
Whatever Washington decides to do in this particular matter, she'll have to answer for it soon enough. Prosecutors are not federal judges, insulated by life tenure from political pressure; they are elected officials, who must return to voters at regularly scheduled intervals and ask for another term in office. And in cases like this one, her job is especially difficult, because wherever anti-choice extremism earns social acceptance, any prosecutor who elects not to "defend the unborn" in a given case runs the risk of earning a challenger—one who, unlike the incumbent, promises to make the cause a priority of their public service. As a tool for preventing unjust outcomes, prosecutorial discretion only matters if the people in office are willing to wield it.
Originally Appeared on GQ
