You may think the war on drugs is winding down in America, and in some ways it is, but old habits die hard. Prosecutors and politicians confronted by a new wave of prescription opiate and heroin addiction and abuse are finding new ways to punish drug dealers, especially if there is a death involved.
In recent years, a number of states, including California, Florida, Illinois, Kentucky, Ohio, Pennsylvania, Massachusetts, Michigan, Missouri, Tennessee, Virginia and Washington, have enacted or revised laws aimed at punishing dealers for the overdose deaths of their clients. Known under monikers such as "drug dealer liability" or "drug delivery resulting in death," the new laws satisfy punitive social impulses, but seem to accomplish little else.
"I don't want another parent to bury a child, and I don't want another child to lose a parent to heroin or prescription drug overdose," Virginia Attorney General Mark Herring said in a typical pronouncement about the need for such a law.
"If you sell drugs that cause someone's death in Ocean County, New Jersey, and if we track it back to you, you are going to prison," Ocean County District Attorney's office spokesman Al Della Fave told AlterNet.
The Problem Is Real
According to the Centers for Disease Control, fatal drug overdoses are the leading cause of accidental death across the nation, now exceeding motor vehicle deaths in the 25-to-64 age group. Prescription opiates such as oxycodone and hydrocodone, as well as sedatives and tranquilizers, now outpace illegal drugs such as heroin and cocaine.
Still, heroin use is up, and so are fatalities. According to the 2012 National Household Survey on Drug Use and Health, the number of heroin users was approximately 669,000, up dramatically from the 373,000 reported in 2007. A December CDC 2014 report found that heroin-related deaths tripled between 1999 and 2012. And just last month, the DEA estimated the number of heroin overdose deaths in 2013 at 8,260, nearly doubling the number of overdose deaths from just three years earlier.
But heroin deaths are overwhelmed by prescription drug overdose deaths. According to the CDC, twice as many people (16,235) died from prescription opiate overdoses that year, with a total of more than 43,000 drug overdose deaths, well more than half of them from prescription drugs, not illegal drugs.
Efforts to tackle fatal overdose cases coincide with many users switching from prescription opiates to heroin because of crackdowns on "pill mills" and "Dr. Feelgoods" in the face of rising levels of prescription opiate addiction and overdoses. And it strongly appears that the wave of prescription opiate use is largely driving the wave of heroin use.
It all dates back to the late 1990s, when Purdue Pharma introduced Oxycontin to the market as a pain reliever for patients suffering chronic and severe pain. Although Purdue marketed Oxycontin as less addictive and safer than other prescription opiates, it quickly proved both addictive and lethal, with thousands of people dying from Oxycontin overdoses, according to the CDC. Federal prosecutors later went after Purdue Pharma for misstating the drug's toxicity and addiction risks and won a $680 million settlement, though not one Purdue executive ever went to prison.
Going After Street Level Dealers
It's a different story for street-level dope slingers. Prosecuting dope pushers on manslaughter charges is a booming business these days in the criminal justice system. With thousands of people dying from drug overdoses, low-level dealers are low-hanging fruit for prosecutors.
"We're going to be ruthless" in prosecuting drug overdose deaths, Ocean County, New Jersey, DA Joseph Coronato said. He pointed out that 88 people died of drug overdoses in the county in 2013 and 53 more in 2014.
In Pennsylvania, the legislature acted quickly when the state Supreme Court threw out the drug death statute as unconstitutional, in part because it failed to include primary elements to prove a person actually committed intentional murder. The decision came in the case of Gloria Highhawk, who had not sold any drugs, but who was accused of injecting Steve Wilson with heroin at his request. Highhawk was convicted of "drug delivery causing death," but the state Supreme Court held that conviction on the charge violated the due process clause of the 14th Amendment to the US Constitution. Following a series of legal skirmishes, Highhawk ultimately cut a deal to serve two to five years on an involuntary manslaughter charge.
In response to the high court's ruling, and realizing that its drug-delivery-resulting-in-death statute needed another tweak, the legislature quickly passed a new version of the law under which prosecutors no longer have to prove the drug seller intentionally or recklessly caused the death of the person who overdosed.
"We need only to prove drugs were knowingly delivered," said Buck County Pennsylvania Assistant DA Matt Weintraub.
In his own bid to nail dope dealers, Ohio state Rep. Jim Butler this year has proposed House Bill 508, which would make selling the drugs linked to a fatal overdose punishable by life in prison, with no parole eligibility for 20 years. The move follows a new law in neighboring Michigan that also gives prosecutors the ability to seek life sentences for dealers whose customers die of drug overdoses.
In Wisconsin, prosecutors indicted 71 people for first-degree "drug delivery reckless homicide" charges in 2013, up from 47 in 2012. At the time of the mid-2014 report from the Wisconsin Media Investigate Team, another 36 people had been indicted that year.
But the road has been bumpy at times. In one case, prosecutors' failure to elicit testimony from a toxicology expert won the defendant a new trial. Jason Vandyke had been sentenced to 15 years in prison after being convicted in 2011 of first-degree reckless homicide in the death of Cole Trittin, to whom Vandyke had sold heroin and who died of a drug overdose on April 13, 2011.
In Vandyke's case, prosecutors used a toxicology report to show that Trittin died of a heroin overdose, even though medical examiner Douglas Kelly testified that other drugs beside heroin were present in Trittin's body. Prosecutors also failed to present "live testimony" from the toxicologist whose report blamed Trittin's death solely on heroin, instead relying on testimony from the medical examiner about the toxicology report.
That move violated "Vandyke's constitutional right to confront and cross-examine a witness or witnesses against him," the appeals court held.
"We're pleased with the appeals court decision," Wisconsin attorney Matthew Pinix, who wrote the appeal, told AlterNet. "If the case is retried, the state will have to produce the expert who did the toxicology tests," Pinix added. Meanwhile, Jason Vandyke waits at the Columbia Correctional Institution in Portage, Wisconsin.
Virginia responded to the wave of addition and overdoses deaths in much the same way: by targeting dope dealers with stiff prisons sentences. House Bill 1638 allows prosecutors to charge dealers with second-degree murder in the event of a fatal overdose, with a sentence of up to 40 years in prison.
"The goal of the bill is to save lives," state Attorney General Mark Herring explained.
The Virginia bill was largely a response to the overdose death of Kayla Lyndsee Beame, who died in November 2010 after taking ecstasy pills she bought from Timothy Woodward. In addition to convictions for ecstasy distribution and possession, Woodward was also convicted of felony murder for selling the fatal pills. But the state Supreme Court threw out his conviction in 2013, ruling that there was not sufficient "casual connection nor temporal connection between the sale of the ecstasy and Beamer's death to constitute felony murder." In other words, she didn't die because Woodward sold her the drug; there were several intermediate steps. She died two days after purchasing the pills.
Under the new bill, in fatal drug overdose cases, Virginia prosecutors no longer have to take into account any time lapse as long as a witness or witnesses can identify the dope seller who supplied the drugs to a user.
It's not just the states. Federal prosecutors have a long record of hammering drug dealers, and it's no different when it comes to drug overdose death prosecutions. Federal laws carry harsher penalties than some state laws, and federal prosecutors have been known to step in and take over state cases to achieve harsher sentences.
That's what happened to 20-year-old Stephen Martin after he sold heroin to Virginia real estate agent Brad Nichols, 42, in 2013. Nichols died of an overdose, and Virginia Beach investigators eventually rolled up 51 people whose drug sales led to overdoses or heroin-related deaths, including Martin.
He was looking at up to 20 years with parole eligibility after three to five years under state law, but Virginia prosecutors handed his case off to the feds. Instead, he got 20 years to life in the federal system, with no chance of parole.
Are These Laws Just?
Many legal experts and justice advocates argue that these drug death prosecutions are not only unfair, but probably unconstitutional. As Rutgers University law professor Douglas Husak put it: "Heroin distributors are not murderers, and they're not murderers when their customers die from an overdose."
The National Criminal Justice Reference Service agreed in its harshly critical report on the practice, Unconstitutional Fiction. "Regardless of the felony committed by a drug supplier, the act of supplying the drug does not legally cause a user's overdose and death," the NCJRS found."Courts that use the rule [felony murder in drug prosecutions] violate the accused's constitutional guarantee of due process of law by failing to prove the causation of the crime beyond a reasonable doubt."
It's not only causation that is problematic, but also intent. Felony murder charges (as distinct from manslaughter) require that intent be proved, legal experts said. Critics charge that politicians and prosecutors are trying to side-step intent with the new drug dealer liability laws.
"Where's the intent to cause death?" asked former Harris County, Texas chief prosecutor Mark Vinson in an AlterNet interview. "And how can it be proved that a dealer sold the exact drugs that caused someone's death?"
"Where is the intent to cause death?" echoed Houston-based defense lawyer Craig Washington.
Advocates and defense attorneys argue that prosecuting people for murder or manslaughter is unfair because the user is ultimately responsible for ingesting the substances. They also argue that "strict liability" is essentially a tool of civil, not criminal law. They say that with the exception of vehicular manslaughter, it is rare to prosecute someone for accidentally causing death.
"We don't prosecute people in this country for accidentally killing someone, no matter how horrific," Washington said. "Strict liability is for civil court, not criminal."
CNN legal analyst Paul Callahan concurred, saying that criminal prosecutions under strict liability statures are "exceptionally rare and that most strict liability laws are in fact civil."
The use of strict liability laws in criminal prosecutions deprives the accused of a fair trial, he said.
"The laws explicitly say that in a court case, the defense cannot argue that the victim knowingly contributed to his own death by taking the lethal drug, thus removing any argument (for or against) intent to cause harm," Callahan said.
But prosecutors argue that selling illegal drugs to someone who then overdoses is similar to driving while intoxicated and then killing someone.
Washington disagreed. He said the state must prove not only that the drugs sold by the dealer caused the death, but that the dealer must also be proven to have intended for the victim to die.
"First, the state has to prove that the person died of an overdose and then be able to trace the drugs back to my client," he said, describing a hypothetical defendant. "And what if my client sold his drugs to someone else, and that person either stepped on the drugs to make them stretch or laced the drugs with something to increase their potency, and that person sells the drugs to someone else who dies? How can my client be guilty of that person's death?"
According to the CDC, many drug overdose deaths are the result not of a single drug, but of poly-substance abuse. That introduces a whole new level of confusion over causation. If someone dies after using multiple drugs, who should be held accountable? And what if that person is a long-term addict suffering chronic disease related to drug abuse? Did the drugs kill him or did the chronic disease?
Oakland-based forensic pathologist Judy Melinek, who has done numerous autopsies of drug overdose victims and is the author of Working Stiff: Two Years, 262 Bodies and the Making of a Medical Examiner, outlined the intricacies.
"When people die who are habitual drug users, the toxicology report will show which compounds they took and what their blood, urine, or tissue levels were at the time of death," but not where the drugs came from, she told AlterNet. Nor is it always clear whether the death was actually due to drugs or to a pre-existing medical condition.
"Sometimes figuring out whether a person's death is due to natural diseases or drug use can be difficult," Melinek said. "Generally drug users die because they overdose on a particular drug and it affected them more significantly at that moment because of the underlying disease from previous chronic drug use, because they took a little more (prior to dying) or because the overdose batch was stronger or more pure than the previous hit."
But such complexities are not stopping prosecutors seeking politically popular solutions to the problem of drug overdoses.
The Role of Race
Some critics point to the role of race in motivating prosecutors to hammer low-level dealers in overdose cases. They note that newfangled drug dealer liability laws coincide with demographic shifts among drug overdose victims.
Numerous media reports have noted that the current wave of opiate abuse is centered in the Appalachians and the Midwest and is taking place in suburbs and rural areas, not minority-heavy inner cities. And the CDC reported last October that "whites had the highest death rates for both heroin and prescription opioid pain relievers." The number of whites dying of opiate overdoses had doubled in recent years, the CDC report noted.
Wisconsin attorney Robin Shellow, who has defended more than a dozen people charged in overdose death cases, believes that makes a difference in prosecutorial attitudes and behavior.
"Prosecutions have risen amid pressure from people capable of bringing power and influence to bear," she said.
Waukesha County District Attorney Brad Schimel admitted as much in an interview with AlterNet. He said it was when suburban kids started dying of overdoses that he felt motivated to crack down on drug sellers.
"Back in 2007, I was working in a drug unit when, and we started seeing high numbers of heroin overdoses in our suburban communities," he said. "But drugs are equal opportunity killers and are killing kids everywhere."
But nobody really seemed to care when those dead drug users were non-white, inner city residents. For years, police and prosecutors treated fatal overdoses as accidents or as the inevitable fate awaiting drug addicts. Now, with white people and suburbanites doing the dying, in many states, when police arrive on the scene, officers are instructed to notify trained investigators and paramedics to treat the scene as a homicide.
A More Positive Approach
Convicting street-level dope dealers on murder charges isn't going to bring anyone back from the dead, even if it does provide a convenient scapegoat for a tragedy.
Harm reduction measures are far more effective ways of dealing with the threat of fatal drug overdose, and fortunately, their use is spreading. There are now at least 183 public health programs around the country training more than 50,000 people, including police officers, in the use of naloxone, an opioid antagonist that reverses overdoses and saves lives. In the past couple of years, more and more states have enacted legislation allowing police officers, emergency medical responders, and even friends and family members to carry and administer the drug. More than 10,000 overdose victims have been saved by the use of naloxone.
The number saved could have been even higher. According to a study by Phillip Coffman, director of substance use research at the San Francisco Department of Public Health, and Dean Sullivan, director of the Pharmaceutical Outcome Research and Policy Program at the University of Washington, if naloxone had been made available to only 20% of an estimated one million heroin users, some 9,000 additional fatalities could have been prevented.
In addition to widening access to naloxone, another popular and effective harm reduction response are Good Samaritan laws, which provide limited immunity from prosecution for people who report overdoses in progress. Those laws do not provide immunity from prosecution for other offenses, such as drug sales or drugged driving, but they do give overdose victims' acquaintances an incentive to seek medical assistance instead of fleeing or abandoning the victim.
New Mexico was the first state to enact such a law just a few years ago, and now at least 20 others and the District of Columbia have passed similar legislation.
Laws that punish drug dealers with murder charges may enable police and prosecutors to say they are "tough on crime," but they do little to address underlying causes of drug use and the chronic poverty that makes dope-slinging an attractive employment option. And they are of questionable constitutionality. One of these years, the Supreme Court will have to determine the validity and constitutionality of these laws.
Drug use and abuse is as American as apple pie. But there are different ways of responding to it. Resorting to charging drug dealers with murder is a return to the harsh and punitive drug policies of the 1980s, while embracing harm reduction responses is an approach more suitable to the current century. Punishing drug dealers didn't stop drug use or drug dealing then and is unlikely to stop it now. When it comes to people's craving for dope, the urge to get high will always outweigh the risks and consequences of drug use.
by Clarence Walker
May 31, 2015
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