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September 29, 2015

"Heroin, Murder, and the New Front in the War on Drugs"

DownloadThe title of this post is the headline of this lengthy and effective new Vice article.  Here are excerpts:

It can be tough to find a true villain among the legions using and selling opioids, two groups that often overlap. This is especially true given that for many, heroin use was preceded by the abuse of widely-prescribed opioids like OxyContin, which as of 2013, was responsible for more deaths than heroin....

But prosecutors across America are dusting off old statutes to pursue full-fledged murder charges against dealers and even fellow users and friends who pass or sell heroin to a person who then dies of an overdose. Possible sentences include life without parole. The law-and-order crackdown is taking place at a moment when prominent figures in both major parties are, for the first time in decades, seriously considering reducing a jail and prison population that has grown to well more than 2 million — and curbing a war on drugs that has persistently failed to dampen the appetite for the stuff....

So far, the number of such charges that have been filed, and the criteria by which prosecutors are deciding to use them, remain murky. The phenomenon has received little attention from legal scholars and activists, and the charges have surprised defense lawyers who end up handling the cases....

So far, it seems like plenty of smalltime hook-ups are getting caught in the fray. In September 2013, Joseph L. Robinson, an Illinois man living near near St. Louis, was sentenced to 20 years in federal prison for selling a man who later died two-tenths of a gram of heroin — for $30. Jim Porter, a spokesperson for Southern District of Illinois US Attorney Stephen Wigginton, says there was nothing else that made the crime particularly heinous. If there had been, he says, the sentence could have been even longer.

The prosecutions also run counter to the widespread adoption of harm-reduction policies like equipping first responders with the overdose-reversing drug naloxone, as well as "good Samaritan" laws, which offer limited legal protection to people who call 9-1-1 to report a drug-related medical emergency. But those laws typically offer immunity from low-level possession charges and not for drug dealing, according to the National Conference of State Legislatures — let alone for drug-related murder charges. Prosecutors hope that harsh charges will deter dealers and keep drugs away from users, but they could also convince drug addicts to flee the scene and leave someone dying on the floor.

The charges could even encourage violence on the part of dealers determined to silence informants. "To bring punitive criminal justice responses to these situations will not prevent the underlying concern and will likely only exacerbate the situation due to those involved not speaking to police or emergency personnel, or even becoming violent to avoid such charges," Art Way, Colorado director for the Drug Policy Alliance, an organization critical of the drug war, writes in an email. "Much of the violence involved in and around the drug trade involves the intimidating or killing of informants or those considered to be informants."...

In the Cleveland and Toledo area, Steven Dettelbach, the US Attorney for the Northern District of Ohio, is charging dealers under a federal law that potentially carries a 20-year mandatory minimum sentence for a drug-dealing offense resulting in death or serious injury—and mandatory life for someone with a prior felony drug conviction. In Cuyahoga County, there were 198 heroin-related deaths in 2014, according to the Northeast Ohio Media Group. "Federal penalties are extremely serious, and the people who are out there dealing what amounts to poison need to get the message that this is going to be treated like a homicide," Dettelbach tells VICE in an interview.

Though former Attorney General Eric Holder instructed federal prosecutors to pursue harsh mandatory minimums more judiciously in 2013, that doesn't mean they won't seek long sentences for drug crimes, according to Dettelbach. Rather, he says his office is focusing such charges on the most serious of offenders, particularly those dealing heroin mixed with the powerful synthetic opioid fentanyl, which has been linked to many overdose deaths. "The fentanyl issue is actually now becoming more acute than the straight heroin issue," Dettelbach says. "In my mind, I will just tell you it's hard to be a dealer in fentanyl and claim that you don't know its going to kill some people."

Federal prosecutors in states around the country, including Oregon, Texas, Pennsylvania, and West Virginia, are filing these kinds of charges in response to opioid deaths. In Southern Illinois, Porter says that their office began to file such charges after Wigginton's 2010 appointment, and that he has so far won 11 convictions. In July, a federal judge in Kentucky sentenced a man to life without parole for dealing oxycodone to a user who died; that district's US Attorney's Office said it was "the first time in Kentucky that a life sentence was imposed in an overdose death case involving prescription drugs."...

State prosecutors also appear to be pursuing harsh charges with growing frequency. In Wisconsin, prosecutors charged 71 people with first-degree reckless homicide by drug delivery in 2013, an increase from 47 in 2012, according to USA Today.

In New Jersey, Ocean County Prosecutor Joseph Coronato has made these sorts of charges a focus, and his office is training police around the state on how to investigate heroin-related deaths. "We kind of call it our checkmate charge," says Al Della Fave, a spokesperson....

State and federal laws don't limit these charges to major dealers, or to those who act with malicious intent. In New Orleans, Chelcie Schleben and her reported ex-boyfriend Joshua Lore currently face life without parole for the February 2014 fatal overdose "murder" of 23-year-old Kody Woods. The charges are severe "even by extreme Louisiana standards," says Stephen Singer, a professor at Loyola Law School and Schleben's lawyer.

Louisiana already has the highest number of nonviolent offenders serving life without parole, according to a 2013 American Civil Liberties Union report, and state drug sentences tend to be extraordinarily harsh. Last year, Governor Bobby Jindal signed legislation lengthening the possible sentence for repeat heroin dealers to 99 years.

In Charleston, West Virginia, prosecutors have charged Steven Craig Coleman with murder in connection with a February heroin-related death. Rico Moore, Coleman's lawyer, is mystified by the charges. "He's a drug user," Moore says. "He's not as they allege—he's not a drug dealer... It makes absolutely no sense to punish someone who's an addict." According to Moore, Coleman's opioid addiction stems from his abuse of lawfully-prescribed drugs. Coleman is poor, he says, his mother died from drug use, and his father is an addict....

In Ohio, prosecutors don't yet have the ability to seek the harshest penalties available under state law for these deaths—but they want them. Last September, Hamilton County Prosecutor County prosecutor Joseph T. Deters announced involuntary manslaughter charges for involvement in a fatal intoxication, the first time, according to their office, such charges had been filed in county history. Deters took the opportunity to complain that the the law should "be strengthened to allow us to charge these kinds of cases as murder... If the law is changed, drug dealers would then be facing the possibility of life in prison for selling the drugs that take too many lives."

Last year, legislation to that effect passed the state house in Ohio with Attorney General Mike DeWine's enthusiastic support. Republican State Rep. Jim Butler, who introduced the legislation, plans to reintroduce a bill altered to better ensure that mere users are not the ones prosecuted for deaths. But he wants to tack on an increase in sentences for drug trafficking as well. "I think what we need to do is be tougher on drug traffickers and be more compassionate to drug users," he says.

September 29, 2015 at 10:50 AM | Permalink


Sorry but I see this entirely as an assumption of risk issue. As long as the deceased took the drugs themselves (meaning that they put the pills in their mouth themselves and swallowed without being forced, or injected themselves) the risk of death was entirely theirs. And while I can see some level of compulsion overcoming that that bar is quite high in my mind.

Posted by: Soronel Haetir | Sep 29, 2015 11:34:58 AM

The first comment is a bit curious -- "assumption of risk" being applied to illegal conduct seems a bit more complicated, especially when the illegal good is something that you cannot simply purchase at the corner drugstore or something.

I'm not sure what the fair rule would be exactly, but it seems rather libertarian here & it is not like the dealer here should be immunized because of some tendency to take reasonable safeguards like some druggist who doesn't realize the drug was spiked. And, if it was some bad batch of heroin, don't think the dealer should get a free pass when total assumption of risk isn't even the rule repeatedly for legal products.

The dealer there assumes some risk too & s/he loses out, SOL, sorry. If it is just some sick junkie who dies because of basic health problems or a bad needle they got themselves, I can see not blaming the dealer. Illicit sale is criminalized and that is part of the reason. But, in certain cases, I can see an additional criminal liability for the death of the user.

Posted by: Joe | Sep 29, 2015 12:30:41 PM

It will be escalated.

Think about alcohol producers, distributors, bar owners, bar tenders, hosts at private parties being charged for deaths from accidents, violence or simply death from intoxication. We will not solve the problem of our over incarceration till we believe in individual responsibility and smaller government. We're not there yet.

So many citizens are employed enforcing laws, prosecuting, incarcerating and rehabilitating people and they all lobby for more authority.

If you want to see over reach look at the case of Kyler Carriker charged with felony murder in Wichita Kansas.

Posted by: beth | Sep 29, 2015 1:39:20 PM


If you don't care for assumption of risk how about intervening criminal act?

As I have said before I believe that the only drugs that should have any restrictions, including requiring a prescription, at all are things like antibiotics where aggregate use changes how well they operate on an individual basis. And for those drugs I believe the current prescription regime is actually too lax.

Posted by: Soronel Haetir | Sep 29, 2015 3:58:42 PM

This is kind of insane. If one defendant sells the same heroin to a buyer and that buyer dies, what in the world would justify a punishment that is several times greater than the punishment would have been if the buyer does not die. The mens rea and conduct were the same. That is just irrational and smacks of mysticism.

Posted by: Mark | Sep 29, 2015 4:47:37 PM

Unless you've truly been addicted to opiates or had a close relationship with someone that has, you have NO IDEA how strong being addicted to opiates is (ask Rush). If your in the a lower income level and have this addiction you'll find there is a total lack of affordable resources and extremely limited medical treatments available to those who know it's a deadend lifestyle and deperately want out of it.

Posted by: 1st hand experience | Sep 29, 2015 8:12:04 PM


Posted by: ,.s | Sep 29, 2015 8:12:16 PM

SH, I grant your personal views, but I'm speaking here in part given not some perfect universe, but how the law is carried out as is. There is no complete assumption of risk rule.

In this world, over the counter drugs will have certain restrictions, including -- they count since illegal drugs are repeatedly sold to minors -- not doing things like selling beer to six year olds. And, there will be labeling laws and so forth. If you want so perfect libertarian world in which pre-Pure Food and Drug Act things were too restrictive, fine, but that isn't the world we live in. Or, with respect, should live in.

I don't think intervening illegal act should take the dealer or distributor, him or herself doing things illegal, totally remove liability. At the very least, e.g., if it was a particularly impure batch of heroin and turned out to kills someone, yes, I think it reasonable to add more punishment. As to Mark, I do wonder if he thinks law in general "mystical" since certain acts are innocent or at best warrant limited punishment but if by chance death occurs, yes, it can be a lot more.

Posted by: Joe | Sep 30, 2015 12:53:23 PM

To respond to Joe's point, in the criminal context, I do think the notion that punishment should turn on outcomes is way under-examined. What exactly are we trying to accomplish by punishing based on results, rather than mens rea and conduct? I can only think of this going to retribution, but that seems a thin reed in a rational system. And even as to retribution, one would have to believe that we should base retribution on results not mens rea and conduct. On all other fronts, there is no particular reason to punish based on results, and it just seems irrational and, yes, sort of mystical. In the civil area, placing the burden for unexpected bad results on the bad actor, vis a vis, the party suffering injury seems to make sense. But we don't have the same considerations in the criminal area, where it is not a matter of allocating a loss, so basing punishment on results simply costs society more than necessary and puts the defendant to unnecessary suffering.

This seems like fairly basic logic, and even common sense, but there seems surprisingly little debate along this lines for what is a critical first principle from which, as you suggest, a good deal of our notions of criminal justice flows.

I was thinking along these lines in reading about the poor young woman who is going to serve 24 years in prison for killing two other young people while drunk driving. To be sure, a horrible incident. But to what purpose need she spend 24 years in prison? The victims are a sunk cost and are not coming back whether the driver spends 24 years or no time in prison. If we think drunk driving is undeterred, by all means we should increase the punishment for basic drunk driving, but why punish in multiples of severity based on a terrible outcome (which the young woman must live with).

It seems to me those of us who think rationally have a responsibility to push these arguments and make them understandable to ordinary folks. To much of criminal justice seems to turn on reactions of those who are not capable of rigorous thinking.

Posted by: [email protected] | Sep 30, 2015 1:45:31 PM

"victims are a sunk cost"

Well, that is a particularly blunt and impersonal way to express it.

Criminal punishment is in part a matter of "allocating the loss" -- here society itself doing the job, not individual actors. Part of the reason we given heavier sentences is that a victim is much more likely to result in attaining the wrongdoer. And, over 20 years is way atypical for the drunk driver, who at times gets nothing or a few years at best. It is noted to she "feels bad" but not sure how useful that is. Very well we should up certain punishments for something that easily can lead to great harm. Not that retribution when a person is actually harmed is "mystical" as much as emotional or something else.

Merely chance is not a great reason all by itself in various cases. Thus, in this scenario, chance (without knowing it) of selling to someone unhealthy or something to me would not be a reason to up the punishment much given the drugs are inherently dangerous. But, retribution and deterrence interests probably can be shown to some degree. Anyway, okay if the WHOLE criminal justice system is "mystical" on the point. Accepted norms at times are wrong. Though not quite shown here.

Posted by: Joe | Oct 3, 2015 6:05:17 PM

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