Cops Claimed She Set Up A Drug Deal. Now She’s Being Prosecuted For Manslaughter.

On April 8, 2018, the Brevard County Sheriff’s Office initiated an investigation at the Cape Canaveral, Florida, home of Jesse Brackett after he was found dead in his bathroom. The county medical examiner later determined that Brackett, 39, died from a mix of heroin, fentanyl, morphine, and cocaine, and that the fentanyl levels alone were high enough to cause an overdose death.

Brackett’s death is part of a mounting body count in an overdose crisis that claimed more than 70,000 lives in 2017 alone. But instead of treating overdoses as a public health emergency, law enforcement in states like Florida and Pennsylvania are treating them as crimes.

That’s exactly the approach law enforcement took when they investigated Brackett’s death. Brevard County officers examined Brackett’s cell phone records and determined that he communicated with 27-year-old Stefany McIntosh about obtaining $100 worth of heroin that the two would share. On April 13, McIntosh was arrested in an unrelated case on charges of possession of cannabis, paraphernalia, resisting arrest, and “unlawful use of two-way communications device” to facilitate a felony after she allegedly arranged for a heroin sale with a customer who turned out to be undercover with the sheriff’s office.

After being read her Miranda rights, McIntosh confessed to arranging for Brackett to purchase heroin from a dealer who would provide her with free drugs in exchange for bringing him new customers, according an affidavit for arrest warrant filed with Florida’s 18th Judicial Circuit. McIntosh, who has a history of addiction and was described as “homeless” in at least one police report, was not a dealer but a go-between for dealers and other users. According to the sheriff’s office, McIntosh said “she did not have the money upfront to buy the product” and exclaimed  “I’m an addict! I have some needles” during her arrest.

“The crime she appears to have committed was simply being addicted to heroin,” said Greg Newburn, director of state policy for FAMM, a nonprofit that challenges the excessive penalties required by mandatory sentencing laws.

The Brevard County Sheriff’s Office, however, concluded that “Ms. McIntosh’s actions directly contributed to Mr. Brackett’s death due to a toxic overdose on heroin laced with fentanyl.” Even though McIntosh did not sell Brackett drugs and instead only allegedly introduced him to a dealer, she was charged with manslaughter and faces up to 15 years in prison.

Michael Maynard, the man who allegedly sold the heroin to Brackett by way of McIntosh’s introduction, was not charged for his death. Maynard has numerous pending drug possession cases in Brevard County; the Brevard County state attorney’s office did not respond to a request for comment.

“Did she put a gun to his head? No. But did she facilitate him getting the drug, knowing where the drugs were coming from? Absolutely,” Mary Jane Brackett, Jessie’s mother, told NBC affiliate WESH.

Drug induced homicide cases deter good samaritans

Jeremiah Goulka, a senior fellow at Northeastern University’s Health In Justice Action Lab, said  that such cases, often charged as “drug-induced homicide,” do not deter drug crime or drug use. “What they do do is send the wrong message to the wrong people,” he said. “By charging other users—as the majority of these [prosecutions] do—and by treating overdoses as crime scenes, prosecutors are pulling the rug out from under widespread public health efforts to encourage people not to use alone.”

“In the age of synthetic fentanyl, people who use alone die alone,” Goulka said.

Researchers say there is a growing body of evidence that charging users with homicide is having a chilling effect on overdose witnesses. A 2017 study from the International Journal of Drug Policy found that witnesses are reluctant to seek help during an overdose because they fear legal consequences for doing so, undermining Good Samaritan laws that grant special immunity to those who call 911.

Since 2000, McIntosh is one of approximately five people to be charged in Brevard County with manslaughter resulting from a fatal drug overdose. But similar cases are on the rise across the country as overdose deaths shatter records. In 2017, Florida saw 5,088 overdose deaths, and synthetic opioids like fentanyl were the leading cause of overdose deaths. According to data collected by Northeastern’s lab, over 100 drug-induced homicide cases have been charged or prosecuted in Florida in recent years. Florida is also one of six states where the minimum sentence for a murder conviction resulting from a drug overdose is life in prison, according to a 2017 report by the Drug Policy Alliance. In 2017, Florida’s then-Governor Rick Scott signed into law a bill that imposes mandatory minimums for fentanyl possession, as well as the ability for prosecutors to charge “dealers” with first-degree murder if their customers fatally overdose, which is punishable by death.

“When we have enough evidence to prosecute them, then we aggressively seek to prosecute those cases,” Brevard County state attorney’s office spokesman Todd Brown told Florida Today.

No “bright line” between users and dealers

Most low-level dealers are unaware that their product contains illicit fentanyl. A U.S. Sentencing Commission report found only 15.7 percent of people sentenced for trafficking fentanyl in 2016 clearly knew they were selling it, as the white powder is often sold as heroin. McIntosh said that she believed that Brackett was a “tolerant” heroin user who could handle using heroin that contained fentanyl, according to the affidavit for arrest warrant.

Drug-induced homicide prosecutions make little distinction between users and dealers and ensnare many who do not intend to kill, therefore harshly punishing people like McIntosh who set up small deals to stave off brutal withdrawal symptoms. “It is overwhelmingly clear that there is no bright line between users and dealers,” said FAMM’s Newburn. “But all of our laws are premised on that distinction.”

“McIntosh is not quite the big kingpin they told us they’d be using this law against when they passed it,” he added.