Accident or murder? Use of homicide charges to prosecute fatal overdoses draws controversy

Kimberly Elkins split her prescription fentanyl patch with her boyfriend, Aaron Rost, at their Hibbing apartment. A family member later found both unconscious, and only Elkins would survive.

Terry Richards prepared two syringes of a fentanyl solution inside his Grand Rapids residence. He injected one himself while he watched his wife, Katrina, use the other. When Katrina stopped breathing, Terry tried throwing water on her and administering CPR, but nothing would bring her back to life.

In each case, there were two consenting users. One died. The other was sent to prison.

In the northern Minnesota and Wisconsin area and across the country, the application of homicide charges has become a favored response for police and prosecutors seeking to address the opioid crisis by cracking down on dealers.

But the tactic remains controversial, with critics arguing that such prosecutions have little to no deterrent effect and frequently serve to punish people struggling with addiction.

“Despite this popularly held conventional wisdom that there is a public health-oriented response going on to the opioid crisis, there’s only a little bit of basis for that,” said Jeremiah Goulka, an attorney and academic who has studied the issue. “From the criminal justice perspective, what you’re seeing instead is just a war on drugs-type response.”

Goulka is a senior fellow at the Health in Justice Action Lab at Northeastern School of Law in Boston. He and a team of researchers have compiled nationwide data on cases of what they call “drug-induced homicide” — accidental overdoses investigated and prosecuted as homicides.

The team documented 552 drug-induced prosecutions nationwide in 2018 and 773 cases in 2017. That’s up from just 25 in 2007. Their research tracks known examples as far back as the 1970s, though prosecutions were almost unprecedented prior to the early 2000s.

Wisconsin ranks third nationwide with 351 known prosecutions, while Minnesota is seventh with 119 — both among the highest per capita rates in the country.

Accountability or punishment?

There have been at least nine drug-induced homicide cases opened in the counties of Northeastern Minnesota and Northwestern Wisconsin since 2014, according to a Duluth News Tribune review. Despite frequent legal challenges from the defendants, each adjudicated case has resulted in a conviction and prison sentence, with the exception of one that was later reversed by the Minnesota Court of Appeals.

St. Louis County Attorney Mark Rubin, whose office has brought murder or manslaughter charges in multiple cases, said overdose deaths are “extremely tragic.” But he said he has a duty to pursue accountability and apply the state’s laws “as fair as we possibly can.”

“We show some compassion, some understanding when we charge cases and on the dispositions,” Rubin said. “But I think it’s so extremely dangerous — and it’s knowingly dangerous. It’s not like people say, ‘Well, I didn’t know that would be dangerous.’ They know, and they’re making a choice, and it’s a bad decision. It’s painful, but the cases we’ve actually prosecuted I believe are appropriate.”

The National District Attorneys Association has recommended increasing prosecutions of what it calls “drug delivery cases resulting in death.”

The organization advises treating every overdose as a homicide. It identifies the victim’s cellphone and call records as the “most critical parts of an investigation,” while advocating law enforcement partnerships with medical examiners and hospitals in order to preserve medical evidence.

“Successful prosecutions under these statutes begin by having law enforcement and prosecutors place an emphasis on pursuing these types of cases,” the group wrote in a 2018 guide for state and local prosecutors. “The potential of being charged with homicide also provides an added incentive for a dealer to cooperate with law enforcement and provide other actionable intelligence for broader distribution networks.”

But Goulka said research has found that most people facing charges are friends and family members of the victim or low-level dealers. The team’s analysis also pointed to racial disparities, with people of color facing a median sentence of nine years, while white defendants face a median of just five years.

“There’s this notion that they’ll go out and break up these big drug trafficking rings or take down these so-called kingpins, thereby blocking the supply,” Goulka said. “What’s actually happening, most of the time, is that they’re just arresting and prosecuting the folks who last interacted with the decedent.”

Tougher laws proposed

Goulka said most states’ drug-induced homicide laws were enacted “as an act of political theater” in response to the death of basketball player Len Bias, who overdosed on cocaine just two days after he was picked second overall in the 1986 NBA Draft.

Minnesota added a drug-related provision to its seldom-invoked third-degree murder statute in 1987, criminalizing the act of unintentionally causing a death by “unlawfully selling, giving away, bartering, delivering, exchanging, distributing or administering” a Schedule I or II controlled substance. The crime is punishable by up to 25 years in prison and a $40,000 fine.

The same year, Wisconsin amended its first-degree reckless homicide statute to include the act of “administering or assisting in administering a controlled substance,” without legal authority, resulting in death. That is a Class C felony, carrying up to 40 years in prison and a $100,000 fine.

But those laws largely sat unused until recently, Goulka said, when frustrated prosecutors struck on them as an attempt to address the seemingly unending opioid crisis. He argued that prosecutions may be having the opposite effect.

“There’s no evidence to show that this actually deters people from using or selling drugs,” Goulka said. “There is actually evidence out there suggesting that it makes the drug supply more dangerous and leads to more violence. And that’s no different than any other aspect of the war on drugs.”

The National District Attorneys Association, meanwhile, has advocated for such laws to be broadened — calling for legislation to increase penalties for fentanyl distribution, make every person in the chain of delivery criminally liable for an overdose death and require hospitals to report overdoses to law enforcement.

“Although pursuing drug delivery in death statutes may not work for all jurisdictions, it can be a helpful tool in identifying and prosecuting dealers and distributors in an effort to create a deterrent and turn the tide of opioids flowing through communities,” the group wrote in its guide for prosecutors.

Dan Lew, the chief public defender for Northeastern Minnesota, said stiffer laws tend to punish people with addiction issues and lead to mass incarceration without doing anything to address the underlying causes.

“It’s again another attempt to keep us stuck at sending messages,” he said. “What will we have to show for this? Has it really sent a message to folks who know each other, who love each other? Will it really change anything?”

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