United States v. Ms. T (anonymous), Amicus Brief, U.S. Dist. Court for the District of Maine, National Advocates for Pregnant Women, Center for HIV Law and Policy, Verrill Dana, LLP on behalf of Medical, Public Health and HIV Experts and Advocates (2009)

In this brief, the Center for HIV Law and Policy, National Advocates for Pregnant women, and other amici argue that a federal judge in the District of Maine improperly relied on a woman's HIV positive status and pregnancy to determine the length of her jail sentence. Ms. T was charged with possession and use of false immigration documents, a crime for which the federal sentencing guidelines recommend 0-6 months incarceration. Ms. T had been incarcerated for almost 4 months at the time of her sentencing, and both the defense and prosecution recommended that the judge enter a sentence of "time served." However, the judge sentenced Ms. T to a total of 7.9 months because, he argued, the interests of the "unborn child" necessitated that Ms. T remain in prison past her due date so that he could ensure she received treatment to prevent HIV transmission to the child she was carrying.

Amici first argue that neither the plain language nor the legislative intent of the federal sentencing guidelines allow judges to depart from the recommended sentence ranges on the basis of HIV, pregnancy, or the interests of the unborn. The First Circuit has specifically held that pregnancy is not a relevant factor in determining sentencing, and amici could identify no cases in which a medical condition necessitated a sentence greater than that identified in the sentencing guidelines. Furthermore, they argue, departing from the sentencing guidelines undermines Congress's goal of uniformity in federal sentencing.

Second, amici show that state courts (and the District of Columbia) widely oppose incarcerating pregnant women to protect the health of a fetus and penalizing women for endangering the health of their fetuses. The brief further identifies a wide range of public health, medical, and children's welfare associations that uniformly oppose attempts to protect or improve fetal health by incarcerating pregnant women. In addition, amici outline the unique health needs of pregnant women living with HIV, including access to medical staff experienced in tailoring HIV drug therapy and medical interventions to the specific and changing needs of the woman. They also call attention to concerns around the negative impact that correctional settings can have on pregnant women's health, HIV treatment adherence, and infant health. Last, the brief identifies a range of constitutional provisions including the right to privacy and prohibitions against gender-based discrimination that the judge's sentence also violates.

The brief has been redacted to protect the identity of the defendant.