10 February 2020
Category News
10 February 2020,
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The Wrong Way to Fight the Opioid Crisis

People struggling with addiction who share a lethal dose of drugs are being prosecuted as killers.

 

Jamie Maynard’s husband, Timothy, abused drugs, and he hit her. In 2012, after four years of marriage, she left him. Jamie and her two small sons moved in with her parents, postal workers who lived west of Columbus, Ohio, in a tidy white house amid soybean fields. Jamie quit her job, at Old Navy, to work as a state-licensed dealer at the Hollywood Casino, which paid much better—nearly three thousand dollars a month, plus benefits. The Columbus press compared the casino’s façade to a “corrections center just waiting for its barbed wire fence to be installed,” but Jamie, who was twenty-three, found the place exciting.

Gamblers often sought out flamboyant dealers who tapped their tips jar and cried, “Tokes for the folks!” Jamie preferred not to be noticed. She liked working the busiest shift—from eight at night until four in the morning—partly because she was less likely to be left standing alone at a gaming table, feeling exposed.

She became one of the fastest blackjack dealers on the floor, but the countless repetitive motions inflamed a rotator-cuff injury from her days playing high-school softball. A friend gave her a “perc thirty”—a black-market, thirty-milligram version of Percocet, which contains the powerful opioid oxycodone. A quarter of a pill allowed Jamie to work in comfort. It also gave her energy and confidence. Timothy had called her stupid, but in the casino job Jamie realized that she had a talent for what she called “instant math.” As her self-assurance improved, so did her tips. In the spring of 2013, she bought a used Chevy Cobalt, cranberry red. Driving it around, she played Taylor Swift on repeat.

Jamie began running a high-limits blackjack table with a fifty-dollar buy-in. She felt guilty watching her regulars risk their savings and, in some cases, lose their homes. Taking a whole perc thirty before her shift eased the discomfort of feeling like an accessory to other people’s misfortune.

In high school, Jamie had smoked marijuana, and at parties someone had always offered pills, including the catastrophically addictive opioid Oxycontin, which Purdue Pharma began marketing aggressively in 1996, when she was seven. Mixing an opioid with the sedative Xanax was said to offer a “Cadillac high.” By the time Jamie started at the casino, opioids were more abundant in Ohio than almost anywhere in the United States. According to Drug Enforcement Administration data analyzed by the Washington Post, between 2006 and 2012 more than four hundred and twenty-five million pills were shipped to residents of Franklin County, which includes Columbus, and nearby Madison County, where Jamie lived.

Jamie and Timothy met in 2006, the summer before her senior year. She didn’t realize that Timothy had a drug addiction until he was arrested for stealing. He sobered up in prison. After he was released, Jamie married him. Not long after that, he brought home heroin. Jamie watched him liquefy the dope in a spoon, over the flame from a cigarette lighter, then inject himself with the fluid. The next day, she let Timothy shoot her up: she didn’t want him to leave her. After using heroin for a few months, Jamie stopped; never having heard of withdrawal, she weathered what she assumed was a stomach flu. She had stayed clean all this time—until the perc thirties.

Jamie bought her percs from another user, S., a high-school friend whom she began dating around the time she took the casino job. His mom rented a duplex in the Hilltop, Columbus’s worst drug district. A dealer lived several doors down. S.’s mom allowed her son and his friends to use at her place in exchange for dope.

Perc thirties sold for a dollar per milligram. Jamie’s habit grew to three pills a day—more than six hundred dollars a week. After paying her bills and her parents, Debbie and Frank Barton, for rent and babysitting, Jamie spent the remainder of her salary on pills. One day, when she couldn’t find her next dose, S. suggested heroin as a temporary substitute. (Molecularly, the two drugs are extremely similar.) A hit cost only ten dollars. Jamie prepared the dope on a square of aluminum foil and smoked it. The high lasted all day.

Her heroin dealer lived in another part of the Hilltop. Back alleys crosscut the district, making properties easy to enter via rear entrances. The dealer instructed Jamie to park in the alley behind the bungalow where he lived with his family. Downstairs, he kept what Jamie thought of as a normal home, with nice sofas and a coffee table; upstairs, he worked out of a “trashed” office. Amid the mess were guns and safes. Jamie noticed that the office always contained “the most random” items. Users would trade a four-hundred-dollar television for a fifty-dollar half gram of heroin. Jamie once paid with a chain saw.

A dabbler uses to get high; a person with an addiction uses to stay well. A lapse in consumption triggers withdrawal. The muscles cramp. The skin crawls. The legs spasm, especially at night. The insomnia is crushing. There are drenching sweats, rattling chills. One heroin user, in a 2016 F.B.I. documentary, said that during withdrawal people are “crapping on themselves” and “puking on themselves”; another user said, “You’ll do anything to make it stop.” Withdrawal can lead to life-threatening dehydration, and often causes uncontrollable crying and suicidal thoughts. Jamie told me, “You’re scared to be sick.”

Her arms became skeletal. She stopped doing her hair and makeup. Her sisters—Kim, a paramedic, and Kristin, a nurse—asked their parents to intervene. Jamie refused to go to rehab, for fear of losing her job and her health insurance. Confessing that she used to take heroin with her husband, she told her family that she had got clean before, on her own, and could do it again. The attempt lasted twelve hours. But Jamie fooled everyone by eating more and paying better attention to her appearance.

She often bought dope on her way to work—the Hollywood Casino was in the Hilltop, on the site of a former General Motors factory. For privacy, she slipped into the rest room of a Taco Bell or smoked in her car, where she stashed fast-food straws and aluminum foil.

Other users were Jamie’s best source of information and help. “If your dealer wasn’t answering the phone, or if they were going to be an hour and you were sick, you’d find a friend to get it, so that you could use quicker,” she told me. Users knew which dealers cut dope with coffee grounds, and who sold only to regulars. If a friend bought heroin on Jamie’s behalf, she reimbursed him or her, and vice versa. Users might “tax” each other: a few bucks, a pack of Marlboros, gas. It was common and expected to “break off a piece,” for personal use.

Jamie limited her circle to people she knew, if only by a first name. She knew a guy who knew a girl named Courtney, who, in the spring of 2015, was looking for Xanax and “subs,” or Suboxone, a prescription medication that helps heroin users get clean by averting withdrawal symptoms. The first time that Jamie and Courtney met in person was at a gas station in the Hilltop. Jamie was turning twenty-six; Courtney was twenty-four. Jamie, who had long blond hair and dimples, was athletic and wore sporty clothes; Courtney, who had dark hair and a heart-shaped face, liked bling and bows, and had a horse named Taco. Both women had chosen full-time employment over college, and came from hardworking families in the Columbus suburbs. Courtney had a direct and lively personality, but she never explained to Jamie how she had got into drugs. Occasionally, they spoke, vaguely, about how they hated the direction their lives had taken, and how much they wished they could change.

Courtney, whose last name was Penix, worked as a nanny in Worthington Hills, a suburb of Columbus. She had a boyfriend who lived near Dayton; on Facebook, she told her friends that she was in the first stable relationship of her life. Recently, she had begun spending most nights with him, then driving to Columbus for work. She started texting Jamie when she came to town. In early March, she wrote, “Hey i know someone with xanax if u ever have anyone that wants some.” Jamie wasn’t interested.

Several days later, Jamie heard from Courtney again: “Hey can u get h.” When Jamie said that she could probably find some, “in an hour or so,” Courtney said, “Damn. U can’t make it sooner?” As they discussed when and where to meet, Courtney said, “I just need to leave my house so my parents don’t question me.” The next night, she told Jamie, “That was some good shit u got.” Jamie asked, “You want more?”

Jamie and Courtney traded calls and texts throughout the month. March 20th: Courtney complained about a “bitch” who had asked her for drugs, and then balked after “I told her either she pays me 25 for em or gives me gas money.” March 22nd: Courtney asked Jamie to cover her for Xanax, but she declined. At the end of March, when no one in the Hilltop seemed to have Xanax, Courtney asked about heroin, noting, “Idk if it will help my withdrawals but I can try I guess.”

In early April, Courtney wanted subs and Xanax but couldn’t leave work. Jamie offered to bring them to her, before reporting to the casino. Courtney gave Jamie her employers’ address, saying, “Just make sure nothing happens please, I have 2 kids here.” Jamie, whose sons were five and three, replied that she would “never put kids in danger.”

Jamie never stole to support her addiction or smoked when her children were around. She tended to respond to Courtney like a patient older sister. When Courtney nagged her for running late, Jamie didn’t react; when Courtney asked her to leave drugs in an unlocked car, for pickup, she refused. Courtney said that she had recently been robbed at gunpoint, and Jamie worried that she would get herself killed.

On April 25th, Courtney headed to Columbus for her older sister’s birthday party. Joking that her boyfriend was driving her nuts, she told Jamie, “I’m about to do the rest of these Xanax,” adding that when the pills were gone she’d “be fucked.” Jamie, recognizing Courtney’s fear of withdrawal, replied, “Well worst case scenario I can get you dope and that’ll help.”

Before Jamie could track anything down, Courtney found her own supply of Xanax. She asked if Jamie wanted some. Jamie said, “No I’m good.”

April 27, 2015, was a blustery Monday. Courtney asked Jamie for Xanax again. When an hour and a half elapsed, with no response, she requested “150 worth” of heroin “and a rig,” meaning a needle and a syringe.

Jamie had already planned to use, before her night shift. By 5 p.m., she was at her dealer’s house, smoking. As the dealer measured out Courtney’s share, Jamie checked in, by text. Courtney told her, “I just tried to get more money from those check loan places and they wouldn’t do it lol.”

“Lmao,” Jamie replied. “I just got you $175 worth plus two rigs so you owe me $180.”

They agreed to meet outside a Walmart on Hilliard-Rome Road, a corridor dense with fast-food restaurants and big-box chains. At around 5:20 p.m., Jamie parked next to Courtney’s Dodge Neon, got out, and spent the next two minutes talking with her. When she noticed Courtney slurring her words, she asked her, “Did you just take Xanax?” Combining heroin and Xanax produced the coveted Cadillac high, but every addict knew that the combination was dangerous. Courtney assured Jamie that she hadn’t taken Xanax since the previous night—Jamie believed her when she said, “I’m just sick.”

Jamie thought about how “livid” she’d be if another user, inches away, withheld the substance that would immediately make her well. She handed over the dope. The next text from Courtney’s phone arrived shortly after eleven o’clock. It said, “Courtney has passed away from an overdose.”

At first, Jamie thought that someone was playing a horrible prank, and didn’t respond. The next day, she returned to the Hilltop, and mentioned the text to her dealer. He warned her, “If the police come to talk to you, you’d better not mention me.” Jamie assured him that she wouldn’t. She later told me, “You always hear those stories about people telling who their dealer was, and then their family ends up dead.”

Jamie spent the summer expecting the police to question her about drugs. But what really anguished her was the thought that Courtney might still be alive were it not for their meeting. No longer concerned with her own life, Jamie spent more and more time high on heroin.

On August 12th, she had just begun her Wednesday-night shift when a casino security guard pulled her off the floor. Two plainclothes detectives from the Special Investigations Unit of the Franklin County Sheriff’s Office were waiting to question her. Jamie responded to their small talk amiably, and signed a document acknowledging that she understood her legal rights.

Their initial questions were simple: Where do you live? Are you married? How old are your children?

Then: How did you know Courtney? Through a mutual friend, Jamie said. The older of the two officers, a sergeant, asked, “Did you ever move any other kind of drugs for him, other than Suboxone?” Jamie said no.

“Listen, we’re not here to arrest you for drug trafficking,” the sergeant told her. When was the last time she’d seen Courtney?

“I got a text message saying she was dead,” Jamie said, adding that she’d seen her that day.

“Do you remember what you guys did?”

“She was trying to find drugs.”

What kind of drugs? “Anything to make her well.” Did Jamie “help her out”? Jamie said that she couldn’t remember.

The sergeant told her he needed the truth: “We want to know where the dope came from that you gave to her.”

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.

Prosecutors and law-enforcement officials are holding conferences and online seminars to explain how their colleagues could pursue overdose-homicide cases. Defense attorneys, meanwhile, are scrambling to learn how to respond to such prosecutions. Northeastern recently published the second edition of a defense “tool kit,” an eighty-six-page manual inspired both by prosecutors’ increasingly enthusiastic embrace of the approach and by anecdotal reports of ineffective defense counsel. The tool kit advises defense lawyers to scrutinize autopsy reports, death certificates, and toxicology results: many opioid-overdose deaths involve multiple drugs, raising “significant” questions about cause of death. In Pennsylvania, the tool kit notes, some deaths have been reported as overdoses “with no toxicology reports.” One county coroner, after the death of a friend’s son, began classifying all fatal heroin overdoses in his jurisdiction as homicides.

Politicians have often been opportunistic in their championing of overdose-homicide law. In his sentencing memo, Adams, the defense attorney in Wisconsin, wrote that many state prosecutors criminalize addiction as a way to “show action” in the face of the opioid scourge. In 2017 alone, legislators in at least thirteen states proposed new laws. That year, a Florida sheriff warned, in a video that went viral on social media, “If our agents can show the nexus between you, the pusher of poison, and the person that overdoses and dies, we will charge you with murder.” The sheriff was flanked by four officers wearing body armor and balaclavas. President Donald Trump, who has called for drug dealers to be put to death, has not directly addressed overdose-homicide cases, but in 2018 Attorney General Jeff Sessions declared that prosecutors “must consider every lawful tool at their disposal”—including the death penalty.

That year, the National District Attorneys Association, in its first white paper on the opioid crisis, urged law-enforcement agencies and prosecutors to “treat every overdose death as a homicide and assign homicide detectives to respond to these scenes.” The paper’s authors argued that “the potential of being charged with homicide” provided an “added incentive for a dealer to cooperate with law enforcement and provide other actionable intelligence for broader distribution networks.” State prosecutors can exert leverage by threatening defendants with the prospect of federal charges—the mandatory minimum federal sentence for overdose homicide is twenty years. Jared Shapiro, another attorney for Jamie Nelson, in Florida, told me that investigators have the mistaken “impression that they can charge low-level offenders and get them to flip, creating a crumbling pyramid in which El Chapo types will fall.”

Hoffer, the Case Western anthropologist, said that, as the opioid crisis drags on, the overdose-homicide approach has become “low-hanging fruit.” Collins, the Columbus defense attorney, told me that such prosecutions promote a grotesque misreading of the complexity of addiction; it is obscene, he said, to equate overdose deaths with “hard-core murder cases.”

Franklin County, the most populous in Ohio, sits at the center of a state geographically primed for multidirectional trade. Interstates 70 and 71 connect to Denver, Cincinnati, Cleveland, and Pittsburgh. Columbus, one of the fastest-growing metropolises in the Midwest, has been called Test City, U.S.A., because so many retail and fast-food companies try out new products there. It’s been said that if you “raked America together you’d find Columbus.”

In the late nineties, a Mexican drug faction, the Xalisco Boys, identified Franklin County as a promising market for black-tar heroin, which resembles chips of coal. Sam Quinones, the author of the 2015 book “Dreamland,” describes the Xalisco Boys as “our quietest traffickers” and “our most aggressive.” Couriers move in and out of the Columbus area, renting apartments with cash. Testifying at a 2017 congressional hearing, Mike DeWine, who was Ohio’s attorney general at the time and is now the governor, compared buying heroin to ordering a pizza: “You get it in half an hour, and you are going to get it cheap.” After Ohio shut down the pill mills that proliferated with the advent of Oxycontin and other opioids, users found a ready substitute in heroin.

Illicit drugs are often cut with other substances. With heroin, adulterants include the potent painkiller fentanyl and the tranquilizer carfentanil, which is used to sedate elephants. Fentanyl surfaced in the Franklin County drug supply around 2014, and by the next spring Ohio was leading the nation in fatal opioid-related overdoses. Since 2015, more than fifteen thousand Ohioans have died from taking such drugs.

In March, 2015, Franklin County’s new coroner, Dr. Anahi Ortiz, created a fatality-review board, to scrutinize each unintentional-overdose death in her jurisdiction and identify gaps in the system. She told me, “I brought law enforcement into the room. I brought public health into the room. I brought treatment centers into the room. I brought the public defender into the room.” The reforms led to important improvements, including the increased use of Narcan, an injection or nasal spray that can immediately reverse a heroin overdose.

Yet Franklin County’s problem kept growing. By April 27, 2015, the day that Jamie and Courtney met in the Walmart parking lot, Ortiz’s office had already handled a hundred and twelve opioid overdoses that year. Users were overdosing at home and in public; two people had drowned (one in a bathtub, the other in a garden pond). A man had overdosed behind the wheel of his Honda Civic while parked outside a Pier 1.

One of Ortiz’s close advisers on the review board was Rick Minerd, the chief deputy of the Special Investigations Unit at the sheriff’s office. Minerd, who considers himself “the least coppy cop you’ll ever meet,” has an M.B.A., and prefers innovative problem-solving to car chases. Ortiz’s review board inspired him to find his own creative angle on the overdose epidemic.

Traditionally, cops have viewed drug users as criminals, and arrested them; the opioid crisis convinced them that drug addiction could happen to anyone, including their own family and friends. Minerd was among those who realized that law enforcement needed to play an aggressive role in outreach and treatment.

Congress had directed the Department of Justice and the White House Office of National Drug Control Policy to convene a National Heroin Task Force, which ultimately urged “robust criminal enforcement” along with increased access to treatment and recovery services. Opioid task forces multiplied as federal funding became available—the U.S. government is spending billions of dollars on the epidemic. In 2017 and 2018 combined, federal opioid-related programs allocated more than three hundred million dollars to Ohio alone; the Justice Department’s contributions made a particularly dramatic jump, from six million dollars in 2017 to twenty million in 2018.

In Franklin County, Minerd created a task force called HOPE, for Heroin Overdose Prevention and Education. He assigned two of his top narcotics detectives to work with treatment specialists and provide overdose survivors with access to help. These efforts immediately began saving lives. HOPE detectives are on twenty-four-hour call to drive users to treatment, and they routinely follow up with survivors, urging them to take advantage of free health-care options. As the Northeastern law lab notes, “Numerous cost-benefit analyses have found that treatment outperforms punitive measures; it reduces demand.”

Another directive of the task force was to treat unintentional fatal overdoses as homicides, with the goal of arresting dealers “capitalizing on people’s addiction.” When Courtney Penix died, the task force was looking for a “test case.”

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Around the time Courtney graduated from high school, an ex-boyfriend texted her parents, Phil and Susan, to say that she had a drug problem. The Penixes had suspected as much. Pain pills and cash often disappeared from their home, along with items that could be hawked, like the family’s PlayStation. The cutlery drawer held a diminishing number of spoons. By the time the Penixes realized the seriousness of Courtney’s addiction, she was eighteen and beyond their legal control. She left rehab early twice. The problem grew so severe that Phil told her, “Your mother and I have already prepared ourselves for your death.”

After Courtney met Jamie in the Walmart parking lot, she drove across the road, to a Meijer gas station, and entered the rest room. She remained there for more than an hour, with the door locked. A corporate-security manager eventually forced the door open and found Courtney lying unconscious, alongside a used syringe.

A police officer tried to revive her until paramedics arrived; his partner searched Courtney’s belongings and found a black-rock substance, another syringe, a shoelace, two singed spoons, a lighter, the migraine medication Sumatriptan, and dozens of Suboxone wrappers. Paramedics administered three doses of Narcan, but, at 7:49 p.m., at a Columbus hospital, Courtney was pronounced dead.

Homicide detectives from the Columbus Division of Police classified the case as “not a crime.” Later, when Ortiz finalized Courtney’s autopsy, she categorized her death as an accidental overdose.

The night Courtney died, her parents went through her phone, and found multiple text threads mentioning drugs. Phil told me that he called one of the numbers and “went on a rant” to the man who answered, saying, “If I ever find out who you are, I will make things happen.”

Three of Courtney’s uncles, on her mother’s side, the Plancks, were police officers. One of them, Brent Planck, a longtime narcotics officer in Columbus, decided to independently investigate Courtney’s death. He told me, “I wanted to find out who was responsible, other than my niece—obviously she’s responsible. But who’s selling this shit?”

Courtney’s texts provided the name Jamie and an exchange about Walmart. Planck acquired security-camera footage from both Walmart and Meijer. The Meijer footage showed Courtney arriving at the gas station at around 5:40 p.m., twenty minutes after seeing Jamie, in dark leggings and a white-and-gray windbreaker, her sunglasses on top of her head. The Walmart footage showed a woman getting out of a Chevy Cobalt and meeting Courtney at her car.

Columbus detectives still did not see a case. But Planck heard that the sheriff’s office was starting an overdose-homicide task force, and handed off his information.

When a loved one overdoses, it may be easier for family and friends to think of her as prey than to accept the more complex reality of addiction. And for detectives—who, in conventional homicide cases, often work tirelessly to provide “closure” to grieving families—it can be motivating to reimagine a tragic accident as a crime scene, with a victim and a perpetrator. Dennis Cauchon, the president of Harm Reduction Ohio, a nonprofit that opposes overdose-homicide laws, recalls hearing a prosecutor say at a conference, “When parents ask us to do something, it’s hard to say no.”

When Ron O’Brien, the chief prosecutor in Franklin County, first heard about the hope task force, he needed to be convinced of the merits of pursuing overdoses as homicides. He viewed such cases as problematic, in part because jurors may be reluctant to hold anyone except the drug user accountable. In a recent Wisconsin case, some prospective jurors declared that they were “uncomfortable” with the idea of prosecuting, given that “the person who died made the decision to take heroin.” In North Carolina, in 2016, Louise Vincent, the mother of a teen-ager who fatally overdosed, initially wanted to “punish” the person who had provided her daughter with drugs. Vincent, who also had an addiction, later decided that overdose-homicide prosecutions were allowing politicians to skirt responsibility for their own failure to curb the opioid crisis. In 2018, Vincent, who directs a nonprofit called the Urban Survivors Union, launched #Reframetheblame, a campaign that urges users to sign a “Do not prosecute” document. The “directive” reads, in part, “If I die of an untimely accidental overdose I ask that you do not use my accidental overdose as a tool of your drug war to blame and charge others with murder or homicide.”

Although O’Brien is a Republican in a city that he describes as “lock-stock-and-barrel Democrat,” he is respected by members of both parties. A lanky, soft-spoken Ohio native, he was elected chief prosecutor in 1996; before that, he served as the city attorney of Columbus. When the sheriff’s office pitched him the idea for the hope task force, he was facing reëlection. Despite his misgivings, he endorsed overdose-homicide prosecutions, having been persuaded that the detectives’ investigation of Jamie Maynard had yielded an “airtight” case.

Jamie was indicted in August, 2015. In addition to involuntary manslaughter, she was charged with trafficking, as well as with a lesser-known felony called “corrupting another with drugs,” which, in Ohio, carries a mandatory minimum sentence of two years in prison. Altogether, Jamie faced up to twenty and a half years. Her parents decided that they couldn’t afford Mark Collins, and instead hired the only lawyer who showed up at the arraignment, Clay Lopez, a former Franklin County prosecutor who was now in private practice.

Jamie pleaded not guilty. The case became a top story in the local news media. Zach Scott, Franklin County’s sheriff at the time, appeared on TV, declaring that “drug dealers” were now being held to a tough new standard of accountability. Courtney’s parents praised the overdose-homicide initiative; her father said that defendants like Jamie deserved to be charged with murder. Network affiliates aired footage of Jamie at her arraignment, wearing jail khakis and looking unwell. The Ohio media hailed the prosecution, in almost victorious tones: the Fox station in Columbus declared, “Investigators say it can actually be pretty challenging to connect the addict who dies to the dealer who gave them the drugs, but tonight for the first time detectives say they’ve done it—and this is only the beginning.”

Jamie accepted that she had participated in the drug trade but not that she had “corrupted,” much less killed, Courtney. At the time, an overdose-homicide prosecution was largely untested at trial, and in the end Jamie decided not to risk more than two decades in prison. She pleaded guilty to trafficking and to involuntary manslaughter.

After her arrest, she had briefly been sober, then relapsed; in the spring of 2016, she got clean again, after learning that she was pregnant. She was dating Jeremy Faust, a plumber and an old high-school friend who was also in recovery.

Twelve days after their daughter, Joey, was born, Jamie appeared for her sentencing, in the Franklin County Court of Common Pleas. A family friend spoke for the Penixes, declaring that society should be on “a mission” to “hold street-level dealers accountable and responsible” in fatal overdoses; people like Jamie were “predators” who targeted the “helpless minds of good people.”

Jamie stood and asked Courtney’s family for forgiveness. She was deeply sorry for her role in Courtney’s death, and ashamed that she hadn’t been “strong enough to say no” to heroin the first time she was offered it. She assured the Penixes that Courtney had hated addiction and hadn’t wanted “to live like that.” Jamie told them, “We had many conversations about both of us wanting to quit, and get our lives back. The reality is, it’s not easy.”

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The judge, Chris Brown, called the case “an undeniably tragic situation,” noting that if Jamie hadn’t given Courtney heroin someone else probably would have. Nevertheless, he faulted Jamie for having “provided her the means,” and sentenced her to a term of four years and eleven months.

Jamie was sent to a women’s prison, in Marysville. Judge Brown had warned her not to apply for early release before she had served at least half of her sentence; she applied, anyway, and he denied her. Last February, Jamie reapplied. During two years in prison, she had become sober, and had committed no infractions. She had earned a community-college degree, making the dean’s list each semester. And she had completed more than a dozen courses on such topics as trauma, grief, relationships, parenting, and victim awareness. In a letter to the court, she wrote, “I am just asking you for a chance.”

The state opposed early release, as did Courtney’s family. At a hearing, her father said, “We’ve got to set an example.” Judge Brown disagreed. He noted that Jamie had largely led “a law-abiding life,” and had committed an offense “under circumstances not likely to recur.” She had “shown genuine remorse” and made “strides toward rehabilitation.” Her “risk of recidivism” was “so low” that he wanted to keep her out of transitional housing, where some offenders live when returning to society. “Placing her with that population of people would actually be detrimental,” he said. On April 25, 2019, Jamie went home.

The rate of Franklin County’s unintentional-overdose deaths has climbed since Jamie was indicted: in 2016, there were two hundred and sixty-six opioid-related fatalities. Last year, there were four hundred and twenty-one in just the first nine months. This spring, Franklin County will open a thirty-seven-million-dollar coroner’s facility and, next year, a third jail.

Since 2015, Franklin County prosecutors have pursued twenty-nine overdose-homicide cases against twenty-seven people. Fourteen of the defendants had a criminal record there, including felony drug trafficking, weapons violations, and robbery involving a firearm. Thirteen defendants, Jamie among them, had no record. Yet the Ohio statute conflates a case like hers with that of a defendant like Rayshon Alexander, who, in 2016, continued to sell carfentanil-tainted heroin even after learning that his customers were “falling out”: two of them died, and at least eleven others suffered near-fatal overdoses. Alexander was charged with murder. He pleaded guilty to involuntary manslaughter—as Jamie had—and to other felonies, and was sentenced to fifteen years.

Facing a potentially long prison term, overdose-homicide defendants usually plead guilty. Only two Franklin County cases have gone to trial. One ended in a mistrial. The other involved a defendant, Andrew Nichols, who used cocaine with a young woman he had met in rehab; after she fatally overdosed, he wrapped her body in trash bags and duct tape, and hid it in his basement. His landlord discovered the corpse six weeks later. Nichols was sentenced to six years in prison.

Overdose-homicide task forces are still being created across the country, consuming enormous resources. According to a Drug Policy Alliance report, this approach is not “successful at either reducing overdose deaths or curtailing the use or sale of illegal drugs.” Beletsky, of the Northeastern law lab, has written that the “surging reliance on drug-induced homicide charges” diverts resources from public-health agencies that “already operate in an environment of extreme scarcity.” He pointed out that Narcan is increasingly expensive, and isn’t sufficiently accessible.

Lindsay LaSalle, who wrote the Alliance report, told me, “We have vested too much discretion in individual prosecutors.” The discretion extends to the very definition of drug dealing. In one Franklin County case, in 2016, prosecutors considered it a “mitigating circumstance” that Lindsay Newkirk, who was charged with involuntary manslaughter after injecting another user with heroin, was the victim’s own daughter. She served two years in prison. Because the relationship was familial, the prosecutors were able to see Newkirk’s actions as something other than drug dealing. O’Brien, the chief prosecutor, told me, “You can sympathize with that offender, because she was herself an addict, her dad was an addict, and she was just trying to help him.”

O’Brien and I were talking in his office, in downtown Columbus. We were joined by Carol Harmon and Jamie Sacksteder, assistant prosecutors who have handled overdose-homicide cases since O’Brien agreed to formally consider them. I asked how O’Brien’s description of the Newkirks’ dynamic was different from the one between Jamie and Courtney. Jamie, O’Brien said, “was doing it on a regular basis.” He then acknowledged that perhaps Lindsay Newkirk “was, on a regular basis, getting drugs and using them, and giving them to Dad, too—I don’t know.”

Sacksteder offered that the dad “couldn’t find a vein on his own,” and that his daughter was “basically helping him, so he wouldn’t get dope-sick.” I again noted the similarities to Jamie Maynard’s case. Harmon interjected, “The daughter’s not a dealer.”

At the hearing on Jamie’s early release, Harmon had told the court that she had “re-looked” at the texts between Jamie and Courtney, and still viewed them as proof that Jamie was a dealer. “People would reach out to her” for “a hookup,” Harmon told the judge, adding, “I’m not standing here telling the court that she was some big-kilo amount of drug dealer and mover, but Ms. Penix died on April 27, 2015, and those are the drugs that Ms. Maynard gave her.”

In O’Brien’s office, Harmon repeated this argument, saying, “We had evidence that Maynard—again, I’m not sitting here saying that—”

“She’s not the French Connection!” O’Brien said.

The Northeastern scholars call prosecutors and law-enforcement officials “the most powerful influence” behind the “ethically dubious leap” between overdose and homicide. They argue that such a perversion of legislative intent threatens to “flood the system”: the U.S. homicide rate could spike considerably if more police agencies embrace the strategy.

Nate Smith, the sergeant who originally led the hope task force, told me it bothered him that, in the past, “so many people’s son or daughter would die of an overdose, and seldom was a police report even taken.” He and Minerd, both highly decorated law-enforcement officials, felt that they were doing good by treating unintentional overdoses as homicides. Minerd said, “To watch parents who have parented the right way, and who raised their kid in a community they thought was safe and that kid still overdosed? They’re not moral failures. They didn’t parent wrong. That’s always been the motivating factor for me, listening to the stories of the families. The hurt in their eyes—that’s what motivates me.”

The task force has expanded its scope, and now collaborates with some twenty law-enforcement agencies in Franklin County. Smith recently left hope, in order to teach at the training academy for the Franklin County Sheriff’s Office. A new sergeant, Brian Toth, transferred in, from organized crime. The task force, which works within the sheriff’s undercover narcotics unit, now has four dedicated detectives. On multiple occasions, I joined them, and the wider narcotics team, as they worked various cases. One day, swat operators raided a house and found drugs, cash, and a gun. In another case, detectives met a compromised cartel courier in a trap house; they confiscated heroin that had been sewn into a pink velveteen pillow stitched with “There’s no place like HOME.” In a sting operation, detectives used hidden cameras, and the help of a real-estate agent, to arrest a woman who was accused of posing as a prospective home buyer in order to steal painkillers from people’s medicine cabinets. In an October case, a man was discovered dead, on his aunt’s sofa, surrounded by “Gone with the Wind” memorabilia and still holding the TV remote. Drug paraphernalia was present, but his cell phone offered no immediate leads on where he’d obtained the drugs; detectives inventoried it, anyway, in the hope that further scrutiny would yield clues. In another incident, where three people died in the same house, detectives used a cell phone found at the scene to text the person they believed had delivered the fatal batch, and pretended to order more drugs; they then arrested the guy who showed up with dope.

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One morning in August, Toth responded to a call from an old brown brick apartment building north of Columbus. It resembled a two-story motel, with exterior staircases and iron railings. The referring detective told Toth that a woman and her boyfriend had fallen asleep together the previous night: “She wakes up this morning, about 8 a.m.—he’s fuckin’ dead.” The girlfriend was sitting outside with a neighbor, wearing a pink tie-dyed shirt, black leggings, and Nike slides. Toth, noticing that the woman had uncontrollable jitters, said, “Look at that leg.”

Upstairs, in Apartment H, the dead man lay face up at the foot of a mattress on the living-room floor. He was bare-chested, and wearing dungarees and dark socks. Foamy vomit had run from the left side of his mouth and down his face. The inside of his left forearm held needle marks.

The detectives looked around. The apartment was largely empty, but on a dresser they found a charred spoon, scales, baggies, and a razor blade. A heavy stick leaned beside the front door; in one corner was an aluminum bat. There was a deck of cards, a bunch of dice, and a scorecard pencilled with players’ names: Daddy, Baby. Baby was up by one.

Next to the body lay a pack of Marlboros and a purple lighter. A tiny photograph of a woman was taped to the pack. That’s how personal property is labelled in rehab, one of the detectives pointed out.

The woman in the photograph wasn’t the girlfriend—it was a neighbor, who was in jail. Toth put the girlfriend in the front seat of his unmarked police vehicle and asked for an explanation. Detective Chuck Clark, whose case it was, sat in the back, listening closely. The girlfriend told the investigators that whatever had killed her boyfriend must have come from elsewhere. She said, “I know he found something in that cigarette pack—I know it! I can feel it in my fucking soul!”

The detectives hadn’t found anything in the pack except cigarettes. Toth said, “You saw something in that cigarette pack.”

“I did not!”

The girlfriend claimed that she’d spent the night with her head on her boyfriend’s chest, which also seemed dubious: in many overdoses, loud “agonal” breathing precedes death. Another detective, listening at the car’s open window, finally murmured, “Code B,” which meant to arrest her.

Toth gave the woman one last chance. He said, “Your boyfriend is no longer here, and all we want to do is—”

“Figure out what happened,” she said.

Toth told her, “I think you know something.”

The woman, as if suddenly comprehending her precarious position, said, “Come with me.”

They all filed back into the apartment. In the bedroom, she reached into the closet and, sobbing, retrieved a baggie of beige powder from the overhead tracks of the sliding door.

She had made things better for herself by giving up the drugs, but worse by lying. The detective who wanted to arrest her told his colleagues, “I just don’t have the patience for that shit. She knew what fucking killed him.” (The man died of a combination of cocaine, fentanyl, and acetylfentanyl, a synthetic opioid that can be up to a hundred times more powerful than morphine; on the street, it’s known as Apache, Jackpot, and China White.)

At the very least, the detectives could charge the girlfriend with obstruction of justice and tampering with evidence. It was also within their purview to book her on involuntary manslaughter, and let the courts figure it out.

It fell to Clark whether or not to arrest the woman. Toth assured him that he’d back him whatever he decided. Clark thought for a moment, then said, “Personally, I don’t think she ought to be Code B’d.” With that, the woman escaped Jamie Maynard’s fate.

Not long ago, Jamie’s mom asked her, “Would you be alive right now if you had gotten off?” They were sitting in the family room of Frank and Debbie’s house one afternoon. Jamie thought for a minute and said, “Probably not.” She has now been sober for three years.

Whenever I visited the Bartons, Jamie’s parents always sat together quietly, on their sectional sofa, listening to their daughter describe her life. At one point, Debbie said, “I don’t understand the whole addiction thing, so then I get really mad.” Addiction, in her opinion, was “a choice.” Jamie told her mom, “It literally changes the chemicals in your brain.”

According to the National Institute on Drug Abuse, addiction is a complex brain disease—“a medical illness,” not a “moral failing.” Northeastern’s Action Lab notes that addiction “alters brain neurochemistry such that it compels a person to satisfy cravings despite recognized negative consequences.” In 2015, both Jamie and Courtney would have suffered “intolerable distress” at the prospect of being unable to use heroin; they were contending with a disease that had diabolically transformed their lives into what the NIDA calls “a landscape of cues and triggers, like a video-game environment cunningly designed to pose the greatest challenge to his or her willpower at every turn.”

A twisted distinction of overdose-homicide cases is that many defendants need the same mental-health and addiction treatments that are offered to survivors of an overdose. The laws purport to protect life, but they may actually increase fatalities: a witness to an overdose may be less likely to dial 911, for fear of being prosecuted. Most Good Samaritan laws, which provide immunity to people who call for help, don’t apply to overdose-homicide cases. According to the Northeastern study, the statutes “create a quandary for people calling 911: you (probably) won’t get in trouble if the person experiencing an accidental overdose event survives, but if death occurs, you’re calling the cops on yourself.”

While Jamie was in prison, her parents took care of her newborn daughter and her sons. (Timothy violated the terms of his parole, and is back in prison.) After she got out, she returned to living with them. She and Jeremy resumed their relationship. Three times a week, they attend an A.A. meeting together.

Even though Jamie is no longer incarcerated, her punishment, she discovered, has not ended. Her trafficking charge can eventually be expunged, but an F1—a first-degree felony—is for life. Barring a pardon or a special type of appeal, which she cannot afford, she will always be ineligible for certain housing and employment.

The state revoked her gaming license. Last August, desperate after months of looking for a job, she walked into a temp agency and told a supervisor the whole story. The agency found her a job as a janitor at a factory. Jamie got up at five-thirty every morning to mop floors and clean toilets. She was home by the time her kids got off the school bus. She took weekend and holiday shifts, for the overtime. In October, she received a promotion, to quality control, making $14.50 an hour. She would like a full-fledged job at the plant but has delayed applying, fearing that she’ll fail the company’s mandatory background check.

Jamie sometimes regrets not allowing her case to go to trial. She wonders if there shouldn’t be a less severe kind of criminal charge for defendants who are not high-level traffickers. She wonders, too, what a jury would have made of Courtney’s autopsy, which revealed that she died not strictly of a heroin overdose but, rather, of a toxic combination of heroin and alprazolam—Xanax. Other substances found in her bloodstream included the sedative lorazepam and the depression medication Trazodone.

In another case, in nearby Licking County, an appeals court recently overturned a conviction in a case involving a mixture of heroin and cocaine. And last year the Massachusetts Supreme Judicial Court struck down a conviction because prosecutors failed to prove that the defendant knew that the heroin he’d given a schoolmate would kill him. Because overdoses are often medically ambiguous, defendants might be wise to reject a plea offer and take their cases to trial. Leukel, the Florida attorney, told me, “The hammer of the criminal-justice system carries so much weight, people are accepting responsibility for things they shouldn’t be accepting responsibility for.”

If more prosecutors began losing such cases, they might stop making overdose-homicide charges against low-level offenders, especially people struggling with drug addiction themselves. This past December, the family of a Franklin County man who died after a friend gave him heroin asked the court not to impose a prison sentence. Such a punishment, they said, would be “the worst possible outcome.” The dead man’s sister told the judge, “It could easily have been the other way around.”

 

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