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December 18, 2017

Another look at trend to prosecute some opioid overdose deaths as homicides

This morning's Wall Street Journal has this new article on the (not-all-that) new trend of considering homicide charges in response to drug-overdose deaths.  The full lengthy headline of the lengthy article is "Prosecutors Treat Opioid Overdoses as Homicides, Snagging Friends, Relatives As U.S. drug deaths hit record levels, prosecutors and police are trying a tactic that echoes tough-on-crime theories of the 1990s." Here are excerpts (with a few lines emphasized for follow-up commentary):

After Daniel Eckhardt’s corpse was found on the side of a road in Hamilton County, Ohio, last year, police determined he died of a heroin overdose. Not long ago, law enforcement’s involvement would have ended there. But amid a national opioid-addiction crisis fueling an unprecedented wave of overdose deaths, the investigation was just beginning.

Detectives interrogated witnesses and obtained search warrants in an effort to hold someone accountable for Mr. Eckhardt’s death.  The prosecutor for Hamilton County, which includes Cincinnati and its suburbs, charged three of Mr. Eckhardt’s companions, including his ex-wife and her boyfriend, with crimes including involuntary manslaughter, an offense carrying a maximum prison sentence of 11 years.

Mr. Eckhardt voluntarily took the heroin that killed him, but prosecutors alleged the trio were culpable because they bought and used heroin with him that they knew could result in death.  The indictments were part of a nationwide push to investigate overdose deaths as homicides and seek tough prison sentences against drug dealers and others deemed responsible.  It’s an aggressive tactic law-enforcement officials say they’re using in a desperate attempt to stanch the rising tide of overdose deaths.

Fueled by a flood of heroin laced with fentanyl and other powerful synthetic opioids, the overdose death rate in Hamilton County more than tripled between 2006 and 2016 to 50 per 100,000 people, or four times as many as those killed in traffic accidents.  Nationally, some 64,000 Americans died from overdoses last year, up 86% from 2006, according to the Centers for Disease Control and Prevention.

A newly created heroin task force in Hamilton County has investigated hundreds of deaths in the past two years, resulting in a dozen involuntary manslaughter indictments in state court and 13 federal indictments for distribution of controlled substances resulting in death. “The deaths—that’s why. All the people dying,” Cmdr. Thomas Fallon, who leads the Hamilton County task force, says of the prosecution push. “Even in the cocaine and crack days, people didn’t die like this.”

At least 86 people nationwide received federal prison sentences last year for distributing drugs resulting in death or serious injury, up 16% from 2012, according to the U.S. Sentencing Commission, a federal agency that determines sentencing guidelines for judges.  An analysis of news reports found 1,200 mentions nationally about drug-death prosecutions in 2016, three times the number in 2011, according to a recent report by the Drug Policy Alliance, a nonprofit group that supports decriminalizing drug use.

The prosecutions often employ tough-on-crime legislation born of the crack-cocaine epidemic of the 1980s and 1990s.  These state and federal laws hold drug distributors liable for overdose deaths.  Selling even small amounts can result in decades or even life in prison.

In some states, such laws were rarely enforced until recently.  Benjamin J. Agati, a veteran prosecutor in the New Hampshire Attorney General’s office, has helped train police departments throughout the state in how to build cases under the state’s drug-induced homicide law, which carries a maximum penalty of life in prison. The law was enacted in the late 1980s but was rarely applied before the surge in opioid deaths, Mr. Agati says....

The prosecutions sometimes nab members of drug-distribution gangs like that of Navarius Westberry.  Last year, Mr. Westberry pleaded guilty in federal court in Kentucky to operating a drug-trafficking ring that distributed up to a kilogram of heroin and 50 grams of fentanyl over an 18-month period that killed at least one person.  He was sentenced to life in prison.  But in courtrooms around the country, prosecutors are also sweeping up low-level dealers who are addicts trying to support their habit, as well as friends and family members of overdose victims who bought or shared drugs with the deceased. Some critics of the prosecution tactic say these users need treatment, not harsh prison sentences.

Critics see the prosecutions as more of the same drug-war tactics that have filled America’s prisons with nonviolent criminals but done little to stop illicit drug use. There’s scant evidence that fear of prison deters addicts from using, and for every dealer put behind bars, another is ready to take his place, says Lindsay LaSalle, an attorney with the Drug Policy Alliance.

Law-enforcement officials say they’ve seen some signs the prosecutions may be deterring dealers, including jailhouse phone calls they say they’ve overheard in which inmates warn associates that police are pressing homicide charges against drug traffickers.  They say drug-death prosecutions are just one piece of a broader strategy to combat the crisis, including urging addicts into rehab and taking down large-scale traffickers....

A two-hour drive south from Hamilton County, Kerry B. Harvey, the mustachioed U.S. attorney for eastern Kentucky from 2010 to early 2017, made prosecuting drug-deaths a priority around 2015.  He used a 1986 federal law that had rarely been applied in the district, which established a mandatory 20-years-to-life sentence for distributing drugs that resulted in death or serious injury.  The penalty grew to life in prison for defendants with prior felony drug convictions.

He saw the approach as a way to bring solace to families devastated by the increasing number of heroin-related deaths in the area.  Plus, the law’s stiff penalties helped persuade dealers to cooperate against bigger suppliers, he said. “When someone is looking at 20 years to life, they’re gonna tell you whatever they know to save themselves,” he said.

Mr. Harvey assigned three prosecutors to work on the cases and began working with local police to investigate overdose deaths as homicides.  Since 2015 one of the prosecutors, Todd Bradbury, has convicted 16 people for selling drugs that resulted in death, two of whom received life sentences.  One of those convicted was Fred Rebmann, who in 2016 sold $60 of fentanyl to Kathleen Cassity.  Ms. Cassity was six months pregnant and died within hours of buying the drugs. Doctors performed an emergency C-section, but failed to save the life of her unborn child.

At the time, Mr. Rebmann was 31 and spent his days scheming to obtain enough heroin to avoid withdrawal. “I would work odd jobs…steal…hold up signs for money,” he said in an email from prison. He also dealt drugs. “There were days I’d sell heroin to get my own, and there were days I sold scrap metal,” he said in a telephone interview.  Addiction doesn’t “disqualify” small-time dealers like Mr. Rebmann from prosecution, says Mr. Bradbury, the prosecutor.  “He knew he was selling something extremely dangerous to a pregnant woman,” he says.  Mr. Rebmann says he didn’t know Ms. Cassity was pregnant.

Mr. Bradbury offered him a deal.  If Mr. Rebmann pleaded guilty, prosecutors would recommend a 20-year sentence that, with credit for good behavior, could be reduced by three years.  If he went to trial and lost, Mr. Rebmann faced mandatory life in prison because of a 2012 heroin-possession conviction.

Mr. Rebmann took the deal and pleaded guilty in August 2016, but U.S. District Judge Joseph M. Hood, a Vietnam War veteran appointed to the bench in 1990, rejected Mr. Bradbury’s sentencing recommendation.  Ms. Cassity died “because you wanted to stick a needle in your arm,” Judge Hood told Mr. Rebmann, according to a transcript of the hearing.  He sentenced Mr. Rebmann to 30 years in prison. “I want it to be known here in Lexington… if you get convicted of dealing in heroin and a death results, 20 years isn’t enough,” Judge Hood said. “Time for coddling is over.”

The lines I have put in bold in the excerpts above are intended to highlight that, as I have sought to make in some prior blogging on this topic, that whether a drug defendant is prosecuted in federal or state court may ultimately matter a whole lot more than whether a defendant actually faces a formal homicide charge (or even whether the defendant can be linked to an overdose death).  As noted at the outset of this article, the maximum state prison sentence an Ohio defendant can face for involuntary manslaughter is 11 years, but that same defendant can be looking at a mandatory minimum federal prison sentence of 20 years or even LWOP just based on the quantity of drugs even without a direct connection to an overdose death.  Moreover, a defendant facing homicide charges in state court can perhaps hope that a prosecutor will not be able to prove to a jury a sufficient causal link with a drug death beyond a reasonable doubt; a defendant facing a mere allegation of causing a death in federal court has no right to a jury finding or to demand proof beyond a preponderance of the evidence unless that particular finding directly impacts the statutory sentencing range.

These realities serve to inform and underline the importance and significance of an (Obama-appointed) US Attorney like Kerry Harvey deciding to make these cases a federal priority.  This federal prosecutor's stated belief that federal intervention with extreme federal mandatory minimums brings solace to families and enables going after bigger suppliers ultimately likely results in far more prison for far more defendants than any decision by any state prosecutor to start leveraging state homicide laws.

Some prior related posts:

December 18, 2017 at 10:53 AM | Permalink

Comments

This tough approach by federal prosecutors is the height of hypocrisy, given the slap on the wrist they gave to McKesson, the drug distributor that improperly fed tens of millions of highly addictive opioid pills into cities and towns across the country, knowing the sales were suspicious, and after having been previously disciplined for the same conduct.

https://www.cbsnews.com/news/whistleblowers-dea-attorneys-went-easy-on-mckesson-the-countrys-largest-drug-distributor/

Posted by: defendergirl | Dec 18, 2017 11:27:36 AM

It is. And solace to the family of a heroin addict, that is some deep, stinky kimchee.

I'm a recovered alcoholic and have a great deal of empathy for fellow travelers, but attempting to blame others for what is essentially suicide is moronic and pandering by prosecutors.

Posted by: Fat Bastard | Dec 18, 2017 6:02:41 PM

Defendergirl, you nailed it. I saw the Mckesson mess as told by an FBI agent on tv.

Congress, Fed attys and Mckesson higher ups nees to be horse whipped, tied out in the sun with honey on them and let the bugs have them.

Posted by: MidWestGuy | Dec 19, 2017 8:25:32 AM

Respectfully, I don't think this is correct: a defendant facing a mere allegation of causing a death in federal court has no right to a jury finding or to demand proof beyond a preponderance of the evidence.

In fact, under the Supreme Court's Burrage decision and others including Apprendi, a prosecutor must prove beyond a reasonable doubt that a drug's distribution caused the death of the victim as charged.

Posted by: Michael | Dec 20, 2017 12:55:58 AM

Michael, you are 100% right that if a "death results" enhancement serves to increase the applicable minimum and maximum sentences to which a defendant is exposed, then the causing of a death is an element that must be submitted to the jury and found beyond a reasonable doubt. But there a some (many?) cases in which the amount of drugs and a defendant's prior criminal history already raises a drug defendant's applicable minimum and maximum sentences so that the Burrage/Apprendi/Alleyne issue "washes out." That said, I have tweaked the language in the post for clarity based on your important point.

Posted by: Doug B. | Dec 20, 2017 4:55:01 PM

Defender. The deceased are addicts who took carfentanyl from China. There are very few pain patients among the deceased.

This is a pain patient. "The methadone 5 mg made me dizzy. I had to cut it in half."

Move one from McKesson. Your scapegoating drug companies will lead to restriction of opiates for pain patients.

Posted by: David Behar | Dec 21, 2017 9:26:09 AM

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