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D.A.s Increasingly Treat Overdoses as Homicides. Will November Reel That In?

In New York and Pennsylvania, some DA elections could slow the surge of homicide prosecutions in the aftermath of an overdose.

Activists Call On Gov. Cuomo For Increased Response To Opioid Epidemic
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In New York and Pennsylvania, some district attorney elections could slow the surge of homicide prosecutions in the aftermath of an overdose.

As the opioid crisis has grown, some prosecutors have turned to charging people with homicide if they provided or distributed a drug that resulted in a fatal overdose. 

The practice is now at issue in some 2019 elections. A few of the candidates running for prosecutor in the Nov. 5 elections argue for scaling back this practice, most notably in Lancaster County, Pennsylvania.

Drug-induced homicide charges have rapidly increased since 2011, according to data collected by the Health In Justice Action Lab, a project of the Northeastern University School of Law. The lab found 23 cases total between 1974 and 2000, less than 100 a year through 2011, and exponential growth since: 326 in 2015, 495 in 2016, and 717 in 2017.

This sharp rise risks, once again, crowding prisons with people serving lengthy sentences over drug-related offenses. Relatives of the deceased or people with addiction issues who shared a substance are frequently ensnared, as extensive reporting in The Appeal, the New York Times or Rolling Stone has documented. “We’re seeing an abundance of charges being filed against friends and family members,” Devin Reaves, the executive director of the Pennsylvania Harm Reduction Coalition, told The Appeal in July. Critics also point to studies to argue that fear of punitive responses can dissuade people from calling 911 during an overdose.

Prosecutorial discretion, a key to drug-induced homicide prosecutions

But this is not a uniform story. As is often the case with charging and sentencing practices, this is in part a story about prosecutorial discretion and the politics of prosecutors.

When David Freed resigned as district attorney of Cumberland County in 2017, it flipped a switch for this Pennsylvania county’s approach to opioids. Freed was replaced by fellow Republican Skip Ebert. But whereas Freed was circumspect about seeking homicide charges, Ebert has used them aggressively, The Appeal reported in August. Ebert said then the reason for his approach is “probably more punishment, because the consequences are so high” when someone dies. 

Prosecutors who share Ebert’s views have made Pennsylvania the leading state for charging people with drug-induced homicide.

Just three counties (Lancaster, York, and Westmoreland) account for 162 of the cases identified by the Health In Justice Action Lab. By contrast, in Philadelphia, which is more populous than those three counties combined, the Action Lab only identified five such cases. A separate analysis by PennLive of just 2018 cases drew a similar picture. Lancaster County, where District Attorney Craig Steadman has been a vocal advocate of such charges, leads the way once more, with 30 charges filed over the year, compared with one in Philadelphia.  

To be sure, state laws and reforms shape what DAs can do. If Pennsylvania leads the country in drug-induced homicide charges (with more such cases than California, Florida, New York, and Texas combined), it is in large part due to a 2011 law that enabled prosecutors to charge people with homicide without needing to prove malicious intent, or an intent to harm.

Under this statute, a Pennsylvania prosecutor can charge people with “drug delivery resulting in death” (DDRD) if they give or sell an illicit substance to someone who dies because of using it. DDRD is a first-degree felony that carries a sentence of up to 40 years in prison. Charging someone with this can also make it easier for prosecutors to obtain a conviction on other charges; its harsh sentences provide them leverage during plea negotiations.

But this legislative change also speaks to the importance of DAs and their associations. The Pennsylvania District Attorneys Association lobbied for the 2011 reform, asking lawmakers “to remove that malice requirement.” Other prosecutors demanded statutory changes elsewhere. Expanding prosecutors’ ability to charge people with drug-induced homicide was a priority for the Virginia Association of Commonwealth’s Attorneys this year, for instance. Madeline Singas, the Democratic DA of New York’s Nassau County, wrote draft legislation to the same effect. 

With 49 Pennsylvania counties electing their DAs this year, the surge of homicide prosecutions could have been a core issue up for debate. The same goes for New York, home to 25 DA elections this year, and where prosecutors have also somewhat frequently charged people with homicide in the aftermath of an overdose. I have identified few counties where this has played out, though.

One candidate ruled out homicide charges, and three shared concerns

The Political Report contacted DA candidates running in the nine Pennsylvania counties and two New York counties with contested elections this year that have prosecuted at least six people for drug-induced homicide, based on the Health In Justice Action Lab’s data.

Across these eleven counties, only one candidate ruled out ever charging someone with homicide in the aftermath of an overdose.

It just so happens that this one candidate is running in Lancaster, the Pennsylvania county that has used this approach more frequently than any other county nationwide. 

“We must prioritize treatment over punishment, and DDRD laws prioritize punishment over healing,” Hobie Crystle, the Democratic nominee in the Nov. 5 election, said in a statement emailed via a spokesperson. “That approach sends folks into the shadows. We need light and air to heal, so my office will not pursue DDRD charges. Period.” Crystle said DAs have other tools than homicide at their disposal to hold “profiteers who have caused a death” accountable. “We can punish peddlers of poison severely enough using regular drug delivery laws, without involving the families and loved ones of those who succumb to their illness,” he said.

Crystle’s stance sets up a potentially stark policy shift in Lancaster given the office’s current policies. Steadman, the Republican incumbent, is not seeking re-election. Heather Adams, the Republican nominee and a former prosecutor who now works as a criminal defense lawyer, did not answer multiple requests for comment. The Political Report could not identify her stance from her website or other reporting. Adams and Crystle have publicly disagreed on other issues such as the death penalty, which Adams supports and Crystle opposes.

Three other candidates shared their discomfort with drug-induced homicide prosecutions. 

In Pennsylvania, Lisa Middleman (an independent in Allegheny County) and Jack Stollsteimer (the Democratic nominee in Delaware County) expressed concern that DDRD charges are used excessively against people with addiction issues and people who shared their drugs in the context of using them. Shani Curry Mitchell, the Democratic nominee in New York’s Monroe County (Rochester), said she saw no deterrent effect in drug-induced homicide prosecutions, and worried about the racial disparities in their use.

Indeed, the HIJ Action Lab’s data shows racial disparities in the use and outcomes of drug-induced homicide prosecutions. Leo Beletsky, a professor at Northeastern University who has spearheaded this data collection, attributes this to a prosecutorial culture of “cherry picking” cases for “performative” purposes. “If you’re a prosecutor in a rural Pennsylvania county, the story you want to tell your constituents is that people from Philadelphia and Pittsburgh are coming into your community and poisoning it with drugs,” Beletsky told the Political Report. “It fits in with the overall narrative of what the drug war is about.” 

All three of these candidates declined to rule out seeking such charges, though. Stollsteimer mentioned cases involving “major drug dealers;” Mitchell noted the prospect of a “unique situation;” and Middleman cited the “ultimate goal of finding and prosecuting the highest level of supplier.”

Each is running against an incumbent prosecutor. Stollsteimer’s Republican opponent, DA Katayoun Copeland, did not answer a request for comment. Stollsteimer told the Political Report that the county’s policies toward the opioid crisis are insufficiently focused on public health and that its drug court is much too small. He called for using the magistrate court system to add to its capacity, and for more investments in treatment and reentry programs. Stollsteimer, who has advocated for deprivatizing the local jail and prison, a demand of the Delco Coalition for Prison Reform, argued that “removing the profit margin” would free up resources.

Middleman’s opponent is Stephen Zappala, Pittsburgh’s Democratic DA who has frequently used DDRD charges, as The Appeal reported in January

Mitchell, finally, is running against Republican DA Sandra Doorley, who has used homicide charges in New York’s populous Monroe County. 

Doorley told the Political Report this week that drug-induced homicide prosecutions have helped her county’s response to the opioid crisis. Such charges “can be a deterrent for dealers who knowingly sell life-threatening opioids,” and “can bring justice to families who have lost someone to an overdose death,” she said in a written message. She said she was “proud” to work with local law enforcement “to charge these dealers anywhere from Criminally Negligent Homicide to Manslaughter based on the circumstances of the incident.” 

Doorley added that she has worked with local enforcement partners to expand treatment options because “we cannot arrest our way out of the opioid epidemic,” and that they have “made it clear that we are not trying to punish those suffering from addiction, but those who are trying to profit from it.”

In 2018, Doorley took part in a public event alongside law enforcement officials in which she praised a billboard that publicized her policies on this issue. “If you deal drugs and someone dies, you’re going to prison for homicide,” the billboard said. 

Beletsky, of Northeastern University, said the publicity surrounding drug-induced homicide prosecutions can harm emergency responses. “When people are exposed to this information, they are less likely to seek help,” he said. “If you are at an overdose scene, and you are faced with the decision of whether or not to seek help, you are likely to be highly affected by having seen or heard prosecutors talk about drug-induced homicide prosecutions.”

In Nassau County, the New York jurisdiction with the most drug-induced homicide cases, Singas, the Democratic DA, faces no electoral pushback on the issue. Her opponent Francis McQuade, the Republican nominee, told the Political Report that he “generally” supports homicide prosecutions because “the seriousness of the opioid crisis on Long Island” demands “deliberate and aggressive measures.”

Many other candidates did not answer, including those in Chester, Somerset, and Washington counties. Ebert’s Democratic challenger in Cumberland also did not reply. 

One obstacle to change on these practices, though, is how few prosecutorial elections are even contested. Most of Pennsylvania’s 49 DA races only drew one candidate. In some of the counties making the largest use of DDRD charges—Dauphin, Franklin, and Montgomery—the incumbent prosecutors are running unopposed.

After Pennsylvania, the three states that have seen the largest number of drug-induced homicide charges are Illinois, Ohio, and Wisconsin, according to the Health In Justice Action Lab. All three elect their prosecutors in 2020.