The following is one of the most unusual murder cases one will ever see.  This is the story of Amy Prien, who is being charged with second degree murder for killing her baby with breast milk containing methamphetamine.  This is not the first “death by breast milk” case that has been charged in California; however, none have resulted in a murder conviction.  In this case, Ms. Prien gave her now deceased son, Jacob, a bottle of formula on January 18th of this year.  Jacob woke up crying the next day, and Ms. Prien gave him another bottle of formula.  When she next checked on Jacob, he was not breathing at all.  She then called paramedics; however, Jacob was dead, and when police searched the Prien home, they found methamphetamines.  While Ms. Prien denied taking methamphetamines, blood was taken from her which did test positive.  The deceased Jacob’s blood was tested by the coroner, and it showed a significant quantity of methamphetamines.

The Prosecution is, in effect, deeming the breast milk as the murder weapon.  In the history of California, the closest a jury has ever come to convicting in this type of case occurred in Bakersfield in 1994.  In that case, the two-month-old son of Karen Henderson died of breast milk, and the jury voted eleven to one in favor of guilty.  As many of you perhaps know, eleven to one is the same as one to eleven.  If you have one vote, or if you have eleven votes, it is still a hung jury and the case can either be retried or settled; however, a majority vote does not equal a conviction.  After the Bakersfield case a major debate took place as to whether or not mothers who are using drugs while breast feeding belong in our criminal justice system, or alternatively, whether or not they belong in treatment. 

In a related case in 2001, the United States Supreme Court ruled that a hospital cannot test a pregnant woman for drugs and then give the results to the police.  The Supreme Court wanted hospitals to do whatever was medically necessary and not have the woman be concerned that her health needs could yield an arrest.

In the State of California there presently is not a law on the books that deals with the subject in Ms. Prien’s case.  In other words, it is not explicitly stated anywhere that if you take drugs while you’re breast feeding and you child dies, you will be prosecuted for murder.  What was used in Bakersfield and what is being used in Riverside is what is referred to as a “implied malice murder charge.”  What that means is that the individual should have known that her behavior could lead to the death, and therefore malice can be implied.  In the Bakersfield case, Ms. Henderson had been advised at least four times by social and health workers that if she took drugs while breast feeding, the drugs could be delivered through the breast milk to the child.

In Riverside, the prosecution, if they are to convict Ms. Prien, is going to have to prove that she knew that her drug use could pass over to Jacob through the breast feeding process and that it could be lethal.  If it cannot be proved that she knew these facts, then she cannot be convicted of second degree murder.  The defense has argued that this is not something every mother would know.  The argument is that many mothers do not know if you use drugs and you then breast feed, the drugs can be passed on to the child.  It is contended that most mothers have no idea that it could actually kill their child.

This case may well come down to what Ms. Prien knew versus what she did not know regarding drugs and breast feeding.

In drunk driving cases, of which I am especially familiar, second degree murder is generally not charged unless the individual has a prior conviction for driving under the influence of alcohol.  If the individual has the prior, the prosecution can often prove that the individual took the Drinking Driver Alcohol Program, which all who are convicted of a first offense are required to take.  The taking of that program gives people “extra knowledge” regarding what can happen if they drink and drive in the future.  They are at that point considered to have more knowledge than the average individual, who still has some knowledge from what he sees or hears on the news; however, not as much knowledge as someone who has taken a course which highlights the dangers of drinking and driving.  If someone is convicted of two DUI’s in the past before a present case that yields a death, murder charges grow even stronger, as that individual would have taken two driver education classes, a three-month class after the first conviction, and an eighteen-month class after the second conviction.  After an eighteen-month alcohol program, it is a challenge for the defense attorney to convince a jury that the individual did not have a good bit of extra schooling with respect to what can happen when one drinks and drives. 

Flash back to Amy Prien and her case, which may well go to trial later this year.  If it can be proved that Ms. Prien had a great deal of knowledge regarding drugs, breast feeding, and the effect on a baby, she will be in a more difficult situation than if she did not know much about the process.


Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Unger & Grover, and a therapist at the Foothill Centre for Personal and Family Growth.  Mr. Unger writes a bimonthly column on legal and psychological issues.  He can be reached at charlieunger