More than 12,000 North Carolinians have died from opioid-related overdoses over the last 17 years, the majority of which were unintentional, according to the North Carolina Department of Health and Human Services.
At just 16, Sarah Reams had already received her commercial fishing license and enjoyed spending time outdoors working on a boat with her boyfriend, Ryan Gibbs. In June, the pair were found dead in a Hyde County home after a family member stopped by to check on them. After police became involved, it was discovered the couple bought a drug they thought was cocaine, but did not get what they bargained for.
Toxicology reports showed that fentanyl, a synthetic cousin of heroin, was found in the drugs sold to Reams and Gibbs by 25-year-old Tiffaney Webber. According to the National Institute on Drug Abuse, fentanyl is a powerful synthetic opioid pain-killer like morphine, but 50 to 100 times more potent.
As heroin and other opioids like fentanyl send more and more victims to the morgue, prosecutors are now wading into uncharted legal terrain to fight back. In this case, Hyde County District Attorney Seth Edwards charged Webber with two counts of murder and four counts of possession with the intent to sell. A second suspect, Alfornia Anderson, 32, was also charged with two counts of murder.
Prosecutors across the country are using laws that come with stiff penalties to target drug dealers and members of the drug supply chain, and connect them and the drugs they sell to deadly overdoses. It’s hoped that the process with hold dealers accountable and greatly reduce drug-related deaths.
The Sad State of Affairs
The Virginian-Pilot reports that 479 deaths related to fentanyl or a close copy of the drug occurred in our state in 2016—nearly twice as many as the 241 the year before, according to a report from the Office of the Chief Medical Examiner. The statistics include deaths related to prescription and illegally manufactured drugs.
The percent of opioid deaths involving heroin, fentanyl, and related analogs caused more than half of the opioid deaths in 2016—58.4%. In 2010, these drugs only accounted for approximately 15% of deaths. By 2021, it’s expected that heroin or fentanyl will comprise close to 90% of opioid deaths if action is not taken.
No one is immune to the crisis. Increasing death rates are seen in men and women of all ethnicities and across all age groups, starting at age 15. Geography is not protective either. When looking at overdose fatalities from 2010 to 2015, increases were found in 30 states and Washington D.C.
In a recent statement, the Centers for Disease Control and Prevention (CDC), “[The] report shows significant increases across states in death rates from heroin and synthetic opioid deaths, coupled with continuing high numbers of fatal overdoses related to natural/semi-synthetic opioid deaths.” This illustrates “the continued problem with misuse of prescription opioids and the substantial impact of illicit opioids on this epidemic.” The CDC also reiterates the need for law enforcement and health officials to work together to control the epidemic.
Does a Drug Deal Equal Murder?
Douglas Husak, a legal-philosophy professor at Rutgers University, says slapping dealers with murder charges is not only excessive, but misleading. “You want the labels of what criminals have done to give people some kind of idea of what crime they’ve committed,” he said. “You don’t want to call somebody a rapist if what he did was grope somebody. I’m not condoning groping, but you’ve misrepresented what he’s done. To call people who sell heroin ‘murderers’ seems to distort what they’ve done. Call it like it is—they are drug dealers.”
But prosecutors and police leaders say heroin’s surging death toll has necessitated a tougher and more sophisticated approach to policing. Drug-induced homicide laws are not new—more than 20 states have them, but most were put on the books decades ago at the height of the war on drugs. Prosecutors around the country are now dusting these laws off to combat the raging opioid epidemic.
Tom Synan, police chief in Newtown, Ohio, agrees with this strategy, saying many dealers are well aware of the dangers of heroin and the more-potent fentanyl. “In many cases, not only do they have prior knowledge, they are the ones helping to mix it,” he said. “To me that is more than just a street drug. You are intentionally fueling the addiction and giving [users] a product that is extremely dangerous and could cause their death, and you know it.”
The increasing trend of prosecuting drug dealers with homicide is gaining steam across the nation in the wake of the opioid epidemic. Under normal circumstances, if an individual in North Carolina is suspected of selling another person drugs, he or she would face drug charges and, if found guilty, would be sentenced to approximately five years in prison. However, if the dealer is convicted of murder in the second degree, it could mean life in prison.
Todd Williams, Buncombe County’s district attorney, explains how distributors of opioids could face second degree murder charges: “[It] basically goes to the malice component…second degree murder is the unlawful killing of another person with malice and the legislation has defined an opioid substance sold on the street as constituting that malice.”
What’s Considered Fair?
Many legal experts argue these drug death prosecutions are not only unfair, but probably unconstitutional. As Husak put it: “Heroin distributors are not murderers, and they’re not murderers when their customers die from an overdose.”
The National Criminal Justice Reference Service agreed in its report on the practice, Unconstitutional Fiction. “Regardless of the felony committed by a drug supplier, the act of supplying the drug does not legally cause a user’s overdose and death. Courts that use the rule [felony murder in drug prosecutions] violate the accused’s constitutional guarantee of due process of law by failing to prove the causation of the crime beyond a reasonable doubt.”
It’s not only causation that is problematic, but also intent. Felony murder charges (as distinct from manslaughter) require that intent be proved, legal experts say. Critics charge that politicians and prosecutors are trying to side-step intent with the new drug dealer liability laws.
Advocates and defense attorneys argue that prosecuting people for murder or manslaughter is unfair because the user is ultimately responsible for ingesting the substances. They also argue that “strict liability” is essentially a tool of civil, not criminal law. They say that except for vehicular manslaughter, it’s rare to prosecute someone for accidentally causing death.
“We don’t prosecute people in this country for accidentally killing someone, no matter how horrific,” comments Houston-based defense lawyer Craig Washington. “Strict liability is for civil court, not criminal.”
But prosecutors argue that selling illegal drugs to someone who then overdoses is like driving while intoxicated and then killing someone.
Washington disagrees. He says the state must prove not only that the drugs sold by the dealer caused the death, but that the dealer must also be proven to have intended for the victim to die.
“First, the state must prove that the person died of an overdose and then be able to trace the drugs back to the client,” he said, describing a hypothetical defendant. “And what if my client sold his drugs to someone else, and that person either stepped on the drugs to make them stretch or laced the drugs with something to increase their potency, and that person sells the drugs to someone else who dies? How can my client be guilty of that person’s death?”
It can be said drug use and abuse is as American as apple pie, but there are different ways in which to respond. Will this return to the harsh drug policies of the 1980s work today? Punishing drug dealers then didn’t seem to stop the problem—will it do so now? It all comes down to an individual and the cravings and addictions they fight. The epidemic won’t end until the desire for such destructive drugs is a thing of the past.
For more information or to schedule a consultation, please contact GreeneWilsonCrow Attorneys at Law by calling (252) 634-9400 or visiting www.greenewilson.com.
(Sources: North Carolina Department of Health and Human Services; The Washington Post; National Institute on Drug Abuse; Centers for Disease Control and Prevention; The County Compass; National Public Radio; AlterNet; The Virginian-Pilot; Citizen-Times; Ocracoke Observer; WGHP.com; WRAL.com; and WNCT.com.)