The Wrong Way to Fight the Opioid Crisis

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.

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.”

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.”