Stories written by Jo Ciavaglia, award-winning multimedia newspaper reporter at the Bucks County Courier Times in Bucks County, a suburb of Philadelphia, Pa.
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Monday, March 24, 2014
Users being charged under law intended for dealers
Posted: Sunday, March 23, 2014
For three weeks, the 19-year-old woman couldn’t afford her Percocet fix. So, when a friend from Upper Southampton got his hands on the prescription painkiller and offered her some, she took her usual number of pills to get high.
The Delaware County woman overdosed and died that night in December 2011. Multiple drugs, including the Percocet, were found in her system, according to autopsy results.
The 20-year-old who gave her the painkiller was arrested under what was then a little-known Pennsylvania law: drug delivery resulting in death.
The seldom-used statute was amended five months before the woman’s death to reclassify it as a first-degree felony punishable by up to 40 years in prison. This enhancement made it easier for prosecutors to get a conviction since they no longer have to prove intent, but only that a defendant provided the drug that caused the overdose death.
While the drug delivery felony charge against the Upper Southampton man was later replaced with a misdemeanor involuntary manslaughter charge due in part, according to the prosecutor, to a request by the woman’s family, authorities have not backed away from charging others with the crime.
Last year, two more people in Bucks County were charged with drug delivery resulting in death, and one was charged with the offense in Montgomery County. In all three recent cases, the defendants allegedly shared heroin with a person who died of an overdose.
But going after people who share — rather than sell — drugs that lead to a fatal overdose wasn’t the intent of the enhanced law, according to the Bucks County lawmaker who introduced the legislation amending the law.
“My intent was targeting the person on the street selling the drug, and knowing the drug could harm or kill the person. My intent was to go after drug dealers,” said state Rep. Bernie O’Neill, R-29, of Warminster.
O’Neill’s amendment ultimately removed the malice requirement, increased the charge from a third-degree to a first-degree felony and doubled the potential maximum prison sentence from 20 to 40 years. The charge now can be applied to anyone who intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance.
The original law came to his attention after the overdose death of a friend’s son. The man was addicted to prescription painkillers, but couldn’t get into a treatment program, so he started buying methadone on the streets. The drug is a prescription painkiller used to treat heroin addiction.
A dealer sold the man a bad batch of the drug, but police could charge the dealer only with illegally selling the drug, O’Neill said. To charge him with the death, a prosecutor would have had to prove the drug dealer knew he was selling bad drugs that could harm or kill its users, O’Neill said.
The change in the law was touted as a new get-tough measure aimed squarely at drug dealers. Bucks County District Attorney David Heckler even mentioned it recently in announcing new efforts to stop the rise in overdoses and deaths from heroin and prescription drugs. Last year, 88 of the 113 accidental deaths in the county involved drug overdoses — including 41 heroin deaths, according to county coroner statistics.
But the change has also generated conversation among prosecutors, defense lawyers and the drug treatment community over whether such aggressive laws are effective crime deterrents or whether they punish the people they were created to help.
The effectiveness of the law as a deterrent is unknown. The National Center on Addiction and Substance Abuse at Columbia University and the National Council on Alcoholism and Drug Dependence, leading drug treatment research and advocacy groups, haven’t studied the issue.
Eight other states have laws that allow charges to be filed when someone provides drugs to an individual who dies as a result, according to the National Conference of State Legislatures. The others are New Jersey, Florida, Illinois, Michigan, Minnesota, Nevada, Rhode Island and Washington.
New Jersey and Pennsylvania are the only states where the charge is a first-degree crime.
Chief of Prosecution Matt Weintraub
Only 15 people in Pennsylvania have been convicted under the law, according to the Pennsylvania Commission on Sentencing. Eleven convictions were between 2006 and 2012. The number of arrests couldn’t be determined.
Across the river, New Jersey’s Strict Liability for Drug-Induced Death law has been on the books since 1987. It allows a person to be charged for the manufacture, distribution or dispensing of methamphetamines, lysergic acid diethylamide, phencyclidine or any other controlled dangerous substances that results in death after being injected, inhaled or ingested.
Under the law, a defendant cannot argue that the victim knowingly contributed to his or her own death by taking a drug. A conviction under the law carries a 10- to 20-year prison sentence.
Like Pennsylvania, New Jersey prosecutors have only used that law sporadically. The New Jersey Law Journal identified and examined 32 prosecutions as of 2011 and found that 25 involved friends or family members of the overdose victim.
In four cases, the relationship was unknown; three cases involved drug dealers. Of the 25, only six were convicted of strict liability.
While Pennsylvania prosecutors don’t have to prove intent under the enhanced law, they must show the drug a defendant provided was the single cause of death, which could be difficult when multiple drugs or alcohol are involved.
In 2011, the Pennsylvania Supreme Court upheld an appeals court ruling that reinstated the charge against a woman in the 2009 overdose death of a Western Pennsylvania man. The man fatally overdosed on cocaine and heroin in the home of an acquaintance with whom he shared drugs the day he died, according to published reports. The woman later pleaded no contest to a charge of involuntary manslaughter and was sentenced to 6 months to 2½ years in prison.
Until 2012, the Bucks County DA hadn’t prosecuted a case since the law was changed.
The first case was against the Upper Southampton man charged in the Broomall woman’s death.
Nicole Lavery (L) and Rhiannon Radetzky
Last year, Rhiannon Radetzky, 22, and Nicole Marie Lavery, 39, were charged in separate drug death cases that are both awaiting trial in Bucks County. They’re accused of ignoring overdose signs, prosecutors say.
The deaths occurred only hours and miles apart in Bensalem on the same day in September and during the same month 63 overdoses involving opioid drugs occurred in the township, police said. Six overdoses were deadly, police said.
Bucks County Chief of Prosecution Matt Weintraub agreed the law’s thrust should be aimed at those who sell drugs. But there are occasions when it’s appropriate to apply the law to someone who provided or shared drugs, Weintraub said.
A potential scenario would be where two people share drugs and one of them goes into cardiac arrest or suffers a seizure and the other person fails to provide medical aid or call 911. Another instance could be if one of the drug users has clear knowledge that the drug was particularly potent or potentially fatal.
As long as an “unbroken chain” exists connecting an individual with an overdose death, Weintraub said, a person can be arrested even if he or she lives outside the county. “That is where we are looking at charging that crime,” he said.
GOOD PEOPLE, BAD CHOICES
For criminal defense attorneys, the law raises questions such as whether it could be used against someone who indirectly provides access to prescription drugs that result in a fatal overdose.
Doylestown criminal defense attorney Charles Jonas said that, under the current law’s wording, anyone who provides someone with an illegal drug or controlled substance could be charged under the enhanced law if someone dies as a result of taking the drug. (Marijuana is an exception.)
Jonas added that the law treats drug users and drug dealers as equally criminally liable.
“It’s obvious the intent is to penalize the people who are profiting and selling drugs and someone dies,” he said. “Prosecutors haven’t gone to that statute and used it before under circumstances if someone was using drugs and sharing. I don’t know why they are using it all of a sudden.”
Attorney James Swetz, president of the Pennsylvania Association of Criminal Defense Attorneys, agreed the law has the potential to cover not only drug dependent individuals, but recreational drug users and a “whole range of activities.”
One of the problems, Swetz said, is that the law was derived from a faulty premise.
“If you pass a joint, let’s say that (it) is laced with something, and you don’t know that it has an adverse reaction (for) someone, you could be found guilty of the first-degree felony,” he said. “You’re going to have the circumstance where you have prosecutors charging first-degree felonies against a class of people that the Legislature probably didn’t intend to cover, except for the deterrent aspect.”
Swetz added that the Legislature could fix the law with an amendment that makes it clear the first-degree felony charge applies only to drug dealers or traffickers.
The advisory board of the Council of Southeastern Pennsylvania has taken no stance on the enhanced law, said David Fialko, a prevention specialist with the council. But, he added, “there are few up sides to prosecuting a drug-dependent person.”
When she was using drugs, Sara Colvin says she overdosed eight times. The 33-year-old Bucks County woman hasn’t used now for 2½ years. She believes drug-dependent people face a sort of Sophie’s Choice if they find themselves with someone who has overdosed: Call police and risk serious jail time or let the person die.
“It really is putting people in a compromising position,” added Colvin, who chairs the Bucks County Drug Court Alumni Association.
Colvin said she has no opinion on the drug delivery resulting in death law, but pointed out that the law presumes that drug-dependent people make rational choices.
“I don’t know that a single drug addict is not going to share their drugs with someone strictly because they think they’ll get more jail time,” she said.
Perkasie resident Steve Calderbank, 46, who said he hasn’t used drugs since he was 22, doesn’t believe that charging drug-dependent people with a first-degree felony will be an effective deterrent for most addicts. He said laws involving drug-induced deaths are meant to make politicians appear they’re getting tough on drugs, but they aren’t addressing the underlying addiction issue.
“Addiction exists outside of logic. Why would a mom of two kids leave her kids to go out and cop drugs? Good people do horrible things to feed their addiction,” he said. “I happen to believe a lot of what we do with drug addicts and alcohol is punish them, not treat them. More often, we’re punishing the victim. We’re not punishing the right people.”
The rate of fatal overdoses in the U.S. has tripled since 1991, and opioid-related drugs account for most of that increase, according to the National Association of State Alcohol and Drug Abuse Director’s 2013 annual report.
The pace at which opioid use can escalate to a fatal overdose is relatively slow. Rather than an immediate reaction, people using opiate drugs can gradually undergo a depressed respiration until breathing stops, a process that can take hours, according to the report.
This time span offers a window during which victims can receive medical attention and the drug Naloxone to reverse the overdose before significant brain damage or death occurs.
Did you know?
As of December 2013, 14 states and the District of Columbia have enacted 911 Good Samaritan laws, which provide limited immunity for victims and witnesses who “act in good faith” to seek medical assistance when they believe an overdose is occurring. These laws provide immunity for minor drug offenses that are discovered as a result of the Good Samaritan seeking medical assistance. The limited immunity does not extend to more serious offenses such as drug trafficking or violent crime.