Introduction

In 1971, President Richard Nixon declared the beginning of the “war on drugs,” which set in motion the proliferation of draconian sentencing laws for drug-related offenses and contributed to a new era of mass incarceration. More than forty years later, many experts now agree that the war on drugs, which cost taxpayers trillions of dollars, completely failed to stem drug use or promote public safety. Fortunately, there are signs that the nation has begun to shift away from the misguided drug war. More Americans now see drug offenses as a public health crisis, and not simply a problem that can be solved through the criminal justice system.

Against this backdrop, thousands of Americans are struggling with addiction to opioids, and experts agree that a number of cities and towns across the country are enduring an opioid epidemic. In light of this serious opioid problem and the important lessons from the failed drug war, community leaders, law enforcement, and health care workers are coming together to rely on proven methods like drug treatment, education and the availability of naloxone to help those who are afflicted.

Not everyone is willing to leave the drug war behind, however. In three counties, elected prosecutors are responding to the opioid crises by charging tragic heroin overdoses as murder. Here is a snapshot of this troubling trend. 

Ron O’Brien
Franklin County, Ohioscreen-shot-2016-11-04-at-9-18-09-am

One evening, 27-year-old Lindsay Newkirk and her father shared heroin. When Newkirk woke the next morning, her father had overdosed and died. Franklin County Prosecuting Attorney Ron O’Brien’s office charged Newkirk with involuntary manslaughter. O’Brien has prosecuted at least seven people who sold heroin to people who later overdosed for involuntary manslaughter this year alone under an initiative he has named the “heroin-overdose-death-project.” While O’Brien claims he is going after “dealers” and sending “users” to treatment, his definition of a “dealer” is broad enough to encompass someone purchasing heroin for a friend or someone just supporting a habit. In 2015, O’Brien charged 26-year-old Jamie Maynard with involuntary manslaughter for selling heroin to Courtney Penix in a shopping center parking lot. Penix went across the street and overdosed an hour later in a store bathroom. Maynard had sold Penix a gram of heroin and now faces up to 19 years in prison.

Joe Deters screen-shot-2016-11-04-at-9-18-37-am
Hamilton County, Ohio

Joe Deters, the Prosecuting Attorney of Hamilton County, is no stranger to obtaining homicide convictions in drug overdose cases. While he casts many of these cases as prosecutions of hard-core drug dealers, in fact, at least some of the cases involve friends providing heroin to other friends. In 2014, he filed the first indictment ever in Hamilton County charging an overdose as homicide. In this case, two neighbors, one of whom was a cousin, sold heroin to a young woman who overdosed and died.

In another case, a man named Kenneth Gentry pled guilty to involuntary manslaughter for selling heroin that was used by another man to overdose. Gentry expressed remorse during his court hearing and admitted that he sold small amounts out of his personal stash because he was struggling with addiction.

To up the ante, Deters is advocating for a change in Ohio law so that people who sell heroin can be charged with first-degree murder (instead of manslaughter) if a user dies: “The law needs to be strengthened to allow us to charge these kinds of cases as murder. If the law is changed, drug dealers would then be facing the possibility of life in prison for selling the drugs that take too many lives.”

 

Anthony Gulluni screen-shot-2016-11-04-at-9-19-58-am
Hampden County, MA

Anthony Gulluni, the District Attorney of Hampden County charged Seth Lombard-Hawthorne this year with the death of a teenage girl because he had provided her heroin that she used to overdose. According to the victim’s mother, Lombard-Hawthorne was a co-worker; they had started using heroin together.

In another case out of Hampden County,  Justin Morin was charged with involuntary manslaughter. Morin bought the heroin that his close friend, Darby Fassett, later used to overdose. According to later interviews, Morin said that he feared for his friend who was suffering from withdrawal and had begged Morin to purchase some heroin for him. Morin did not make a profit. Dan Fassett, the victim’s father, requested that the sentencing judge limit Morin’s punishment to probation, noting: “The only thing worse than one dead person is two dead people.” District Attorney Gulluni appears willing to continue the same tactics, promising to “continue to vigorously investigate, arrest and prosecute those people who profit from addiction.”

Conclusion

Certainly, the opioid epidemic will require attention from multiple community figures, including law enforcement. But, using the law as a sledgehammer to punish fellow addicts only compounds the tragedy and fails to learn from the lessons of the failed “war on drugs.” There must be a better way than turning one tragedy into two. 


About the Fair Punishment Project

The Fair Punishment Project uses legal research and educational initiatives to ensure that the U.S. justice system is fair and accountable. As a joint initiative of Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice and its Criminal Justice Institute, we work to highlight the gross injustices resulting from prosecutorial misconduct, ineffective defense lawyering, and racial bias, and to highlight the unconstitutional use of excessive punishment. The Project also closely partners with The Bronx Defenders, which provides invaluable strategic, research, and writing assistance.