Jamie couldn’t imagine giving up her dealer’s name. Panicked, she said, “I want a lawyer then.”
The sergeant informed her that she was the subject of a homicide investigation. The charge would be involuntary manslaughter. Under state law, her offense would, like rape and aggravated robbery, be a felony of the first degree.
When Jamie’s parents learned of the investigation, they came to several devastating realizations at once: their daughter had a heroin addiction; her stable job and her improved appearance had been part of a sustained deception; she was in profound legal trouble. A young woman just like Jamie was dead. Frank and Debbie couldn’t imagine what Courtney’s family was going through, any more than they could fathom the idea of Jamie—who had never been in legal trouble—being held responsible for a homicide.
Eight days later, when Jamie reported for work, investigators were waiting to arrest her. They confiscated her phone, expecting her texts to match Courtney’s; they swabbed the inside of her mouth, expecting her DNA to align with forensic evidence collected from Courtney’s car.
After Jamie spent the night in the county jail, her parents bailed her out and took her home. Cut off from heroin, she was soon, as she later told me, “flopping on the floor like a fish.” One of her sisters drove her to the emergency room, and Jamie spent the next few days in hospital detox.
Jamie and her family met with Mark Collins, a former Franklin County prosecutor who was now a well-known criminal-defense attorney in Columbus. Jamie’s situation infuriated him. More and more, law-enforcement officials and prosecutors were treating fatal overdoses as homicide cases. Overdose deaths were a tragedy, Collins believed, but they weren’t crimes unless the drugs had been given maliciously. What Jamie needed was treatment, not prison.
Jamie faced a kind of criminal prosecution that takes various forms, depending on the jurisdiction. Such cases have been categorized as “drug-induced homicide,” “murder by overdose,” “drug delivery resulting in death,” and “overdose homicide.” More than two dozen states now have laws allowing prosecutors to bring felony charges against anyone who provides drugs that prove fatal. States without specific legislation, such as Ohio, can indict a supplier under existing statutes: manslaughter, depraved heart, reckless homicide, murder. Potential punishments range from a year in prison to death. According to a recent study by the Northeastern University School of Law’s Health in Justice Action Lab, prosecutors in almost every state have exercised the overdose-homicide option.
Legal experts have traced these prosecutions to the fatal overdose of Len Bias, a superstar forward at the University of Maryland, who collapsed on June 19, 1986, in his dorm suite. Less than forty-eight hours earlier, he’d been drafted by the Boston Celtics.
Bias had taken high-quality cocaine, but politicians and the media nevertheless associated his death with the nation’s burgeoning crack epidemic. The Democrats were trying to retake the Senate, and wanted to prove that they could be tough on crime. House Speaker Tip O’Neill urged Congress to craft forceful antidrug legislation that candidates could cite in their reëlection campaigns. Eric Sterling, then the assistant counsel for the House Judiciary Committee, later recalled that lawmakers drafted the legislation without holding a single hearing, adding, “We did not consult with the Bureau of Prisons, or with the federal judiciary, or with D.E.A., or with the Justice Department.”
That October, Congress passed the Anti-Drug Abuse Act of 1986. It established mandatory minimum prison sentences for a range of narcotics crimes, including a “death resulting” offense involving the sharing or the sale of drugs. Sterling, now the director of the Criminal Justice Policy Foundation, which focusses on failed drug policy, has noted that Congress assumed the legislation would lead law-enforcement officials to target “high-level traffickers.” But America’s prisons soon filled with low-level offenders; illicit drug use and trafficking continued unabated.
Policymakers and scholars eventually agreed that neither harsh penalties nor the threat of them significantly deters drug use and sales. But in the meantime dozens of states enacted their own versions of the federal law, including the overdose-homicide provision. At first, the option went largely unused: the Northeastern law lab recently attempted to chronicle the history of such cases, and found hardly any from the eighties and nineties. But in the past two decades, as opioid addiction escalated and overdoses became the leading cause of death in America for people under fifty, police officers and prosecutors seized upon the overdose-homicide alternative as a new “tool.” Now there are many hundreds of such cases a year.
Like the federal law, the state statutes ostensibly targeted “high-level traffickers” and “repeat offenders.” Some career criminals have been caught in this way. Last year, a New Jersey woman fatally overdosed on fentanyl-tainted heroin; police charged the man who purportedly provided her with the drugs, and also Curtis Geathers, the man’s alleged source. Geathers had multiple priors: in the early two-thousands, he was prosecuted for attempted murder and went to prison for aggravated assault; in 2016, he pleaded guilty to trafficking after police found nearly six hundred packets of heroin, plus cash and crack, in his hotel room.
But, as Northeastern has reported, overdose-homicide prosecutions tend to sweep up minor offenders who are “struggling with addiction and who purchase drugs on behalf of themselves and their peers.” Leo Beletsky, the director of the Northeastern law lab, studied two hundred and sixty-three prosecutions that occurred between 2000 and 2016, and found that about half of the defendants were “friends, family, or romantic partners” of the person who died. In Wisconsin, Daniel Adams, a defense attorney, surveyed a year’s worth of his state’s cases, from 2015, and found that only nineteen of eighty-one defendants were “commercial drug dealers.” In a sentencing memo, Adams defined commercial drug deals as “deliveries that were performed solely for financial benefit—not by another addict/middleman/connection for joint use or to otherwise support their own addiction.”
Lee Hoffer, a medical anthropologist at Case Western Reserve who studies local heroin markets as “complex adaptive systems,” identifies this subset of users as “brokers.” He has written that “a buyer trusts the broker to make a purchase and return with drugs; a broker trusts that if they do so the buyer will reward them. In this way, brokering is a ‘favor’ and an economic service.” One prosecutor told me, “Yeah, we call that a drug dealer.” But Hoffer argues that dealers “invest in a quantity of drug to resell,” or they “juggle”—buy illicit substances and repackage them into smaller quantities for resale.
Crucially, brokers do not profit from their role. Jamie’s finances worsened the entire time she used heroin. Having borrowed against both her paycheck and her car title, she owed creditors thousands of dollars in high-interest loans. She scored some free drugs, helped some people who were also struggling with addiction, and made it through another day without withdrawal.
No one has formally documented how many Americans are going to prison in overdose-homicide cases, but the nonprofit Drug Policy Alliance found that, between 2011 and 2016, media references to such prosecutions rose by more than three hundred per cent. Northeastern’s study showed that Pennsylvania appears to lead the country; Ohio runs second, with at least three hundred and eighty-five cases in the past two decades. In December, five legal scholars, including Beletsky, asked the Ohio Criminal Sentencing Commission to reassess the state’s use of overdose-homicide prosecutions. In one exchange with the commission, the scholars urged accountability that is “proportionate to culpability.”
The sentences can be outlandish. In 2015 in Louisiana, Jarret McCasland, whose girlfriend fatally overdosed, was found guilty of second-degree murder and automatically sentenced to life in prison without parole. Nearly two thousand people have signed a petition arguing that McCasland is being punished “for being addicted to opiates,” and that the verdict is a “slap in the face to all who seek help from this painful disease.” The judge said that it bothered him “tremendously” that he had to impose a life sentence. McCasland’s appeals attorney later said, “The court was right to be troubled by a law that equates poor judgment with murder.”
In Florida, in 2017, Jamie Nelson, a drug user, gave another user, Tracy Skornicka, a ride to find Nelson’s dealer, in exchange for several dollars’ worth of heroin. After Skornicka overdosed and died, Nelson was charged with first-degree murder. The state could have put her to death. When Nelson’s lawyer, Jeffrey Leukel, succeeded in getting the murder charge dismissed, prosecutors in Seminole County had Nelson indicted for manslaughter. Leukel told me that, for the prosecutors, “it’s more important to them to save face than to do the right thing.” Nelson, who was also charged with distribution, now faces a possible thirty years in prison.