By Rosa Goldensohn
Prosecutors are increasingly treating overdose deaths as homicides, but they aren’t just going after dealers. Friends, family and fellow users are going to prison.
HIBBING, Minn. — In West Virginia, a woman woke after a day of drug use to find her girlfriend’s lips blue and her body limp.
In Florida, a man and his girlfriend bought what they thought was heroin. It turned out to be something more potent, fentanyl. She overdosed and died.
In Minnesota, a woman who shared a fentanyl patch with her fiancé woke after an overdose to find he had not survived.
None of these survivors intended to cause a death. In fact, each could easily have been the one who ended up dead. But all were charged with murder.
As overdose deaths mount, prosecutors are increasingly treating them as homicide scenes and looking to hold someone criminally accountable. Using laws devised to go after drug dealers, they are charging friends, partners and siblings. The accused include young people who shared drugs at a party and a son who gave his mother heroin after her pain medication had been cut off. Many are fellow users, themselves struggling with addiction.
Such cases are becoming more common even as the role of the criminal justice system in combating drug abuse has become hotly contested, and even as many prosecutors — including those who pursue overdose death cases — say they embrace the push to treat addiction as a public health crisis rather than a crime.
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Overdose prosecutions, they say, are simply one tool in a box that should include prevention and treatment. But there is no consensus on their purpose. Some believe they will reduce the flow of drugs into their communities, deter drug use or help those with addiction “hit bottom.” To others, the cases are not meant to achieve public policy goals, but as a balm for grieving families or punishment for a callous act.
“I look at it in a real micro way,” said Pete Orput, the chief prosecutor in Washington County outside Minneapolis. “You owe me for that dead kid.”
Who owes whom for what is less clear in the case of the Malcolm family in Breckenridge, Colo., where Michael Malcolm’s younger son was charged in the overdose death of his older brother, with whom he shared drugs purchased on the internet. The cost of prosecution and incarceration, Mr. Malcolm said, would have been better spent on addiction treatment that the family could not afford. “It’s kind of like blaming the leaves on the tree, you know?” he said. “What about the roots?”
In 15 states where data was available, The New York Times found more than 1,000 prosecutions or arrests in accidental overdose deaths since 2015. Between 2015 and 2017, the number of cases nearly doubled. Dozens more cases were documented in news reports. In all, overdose prosecutions were found in 36 states, with charges ranging from involuntary manslaughter to first-degree murder.
[Could you be charged in a friend’s overdose death? Read our Q. and A.]
In Minnesota, the number of such cases — sometimes referred to as “murder by overdose” — quadrupled over a decade. Pennsylvania went from 4 cases in 2011 to 171 last year after making it easier to prosecute.
A few cases hinged on whether one person injected the other. But in others, the accused may not have even been present when the drugs were taken. Some defendants had tried to save the life of the victims by calling 911, attempting C.P.R. or administering naloxone, an overdose-reversal medication. Prosecutors need not show that the death was intentional, only that the accused provided the drugs or helped the victim obtain them.
Many of those convicted are serving hard time: A Long Island woman whose best friend texted her from a business trip asking for heroin was sentenced to six years after he died taking the drugs she sent him. A former pipe fitter in Minnesota who shot speedballs with a mother of three got 11 years. A Louisiana man who injected his fiancée — both were addicted, his lawyer said — got life without parole.
In Pennsylvania two years ago, Caleb Smith, an aspiring doctor who had just completed a master’s degree in biomedical sciences, gave his girlfriend what he thought was Adderall, purchased on the internet, but was actually fentanyl.
After he was charged in her death, he committed suicide.
Charge: third-degree murder
When Kimberly Elkins needed relief from chronic pain, her fiancé, Aaron Rost, would tape a fentanyl patch to her chest or upper arm.
But when the couple wanted to get high, they shared the patch, swallowing the gel inside. Both were unemployed in Hibbing, a town in the remote Iron Range of northern Minnesota whose economy is bound to the global price of ore. On Facebook, Mr. Rost listed his job as “getting my life straight.”
On a Saturday in December 2015, Ms. Elkins tore off a piece of patch, and Mr. Rost tucked it in his mouth as he left the house to go hunting. That afternoon she woke up in the hospital. The couple had overdosed — she in the laundry room, he at the door, dressed in bright orange and still holding his bow.
Mr. Rost, she learned, had not survived. He was 36. When the police came to take her statement, it never occurred to her that his death would become a criminal case.
Back home, mourning Mr. Rost, she took all the pills she could find and washed them down with vodka. At the hospital, Ms. Elkins promised her adult son she would get sober, then checked in to a nearby crisis center.
When the police came there to arrest her, two months after Mr. Rost’s funeral, on murder charges, she thought it was a mistake. “What are they talking about?” she asked a friend. “I didn’t kill Aaron.”
Mark S. Rubin, the county attorney who brought charges against Ms. Elkins, compared overdose prosecutions to fatal collisions, saying that prosecuting those involved was “painful” but “part of our responsibility.”
“People agree, you know, there’s nobody forcing someone to take the controlled substance. But somebody might agree to take it from their friend or their boyfriend or girlfriend and they end up dying because of it,” Mr. Rubin said. “We feel that constitutes a crime of possibly murder in the third degree, but at least manslaughter in the second degree.”
[See how readers who have personal experience with addiction and the criminal justice system responded to this story.]
Ms. Elkins, now 49, pleaded guilty to manslaughter and is serving a four-year sentence at a prison in Shakopee, 200 miles from home. She arrived out of breath for an interview in the visiting room, apologizing for being late. The dark hollows that circled her eyes in her arrest mug shot had faded, and her initial bewilderment at being accused had given way to the reality of prison drabs and a metal bunk.
“I was like no, this isn’t a mistake anymore,” she said. “And that’s where I struggle really hard with this, is trying to find my responsibility in it.”
After her arrest, family and friends debated that very question on Mr. Rost’s Facebook page.
“How the hell can u sit there and blame her for it all considering whether she gave it to him or not he still had the choice,” one wrote, calling Mr. Rost’s sister, who supported the prosecution of Ms. Elkins, “heartless.”
“I’m heartless?” the sister responded. “I had to plan a funeral for a 36-year-old man.”
Charge: drug delivery resulting in death
The concept of overdose prosecutions took hold after the cocaine-related death in 1986 of Len Bias, the college basketball star, two days after he was drafted by the Boston Celtics. A friend, who called 911 when Mr. Bias collapsed, was accused of providing the cocaine, but was acquitted.
Soon after, states began passing so-called Len Bias or “drug delivery resulting in death” laws. Louisiana made it second-degree murder. Pennsylvania created a crime punishable by up to 40 years in prison. Congress passed the sweeping 1986 Anti-Drug Abuse Act, which included a mandatory minimum sentence of 20 years for federal cases in which drugs resulted in death or serious injury.
The Len Bias laws were supposed to go after drug dealers — “greed-soaked mutants,” Howell Heflin of Alabama called them on the Senate floor.
But the role of dealer is far less clear cut than lawmakers envisioned. The legal definition of drug dealing, or “distribution,” typically covers behavior that is common for even casual users, including sharing, giving drugs away or getting reimbursed for a buy. Under complicity laws, helping to arrange a deal can be treated the same as dealing.
Unlike child endangerment or “social host” laws aimed at holding parents responsible for underage consumption, Len Bias laws make adults criminally liable for the actions of other adults.
Among groups of regular drug users, on any given day the role of “dealer” might be filled by whoever happens to have gas money, a connection to a supplier or a working phone.
Despite the high cost of imprisonment — $33,000 a year on average, compared with roughly $5,000 to $7,000 for treating addiction with methadone — new Len Bias laws have begun to appear. Delaware enacted one in 2016, and West Virginia did so last year. In Rhode Island, Attorney General Peter Kilmartin has proposed a mandatory life sentence.
His proposal was born, he says, out of anguish over an epidemic so pervasive it sometimes seems to have left no family untouched. Yet it is named for a 29-year-old woman, Kristen Coutu, whose case points to the multitude of factors that can contribute to overdose deaths: She was found dead in her mother’s car two days after using up her insurance company’s 30-day limit on inpatient treatment.
In order to gain a better sense of where defendants fit on the user-dealer continuum, The Times looked to Pennsylvania, where overdose prosecutions have soared since a change in the law in 2011 made it unnecessary to prove that the accused had malice toward the victim. The Times examined drug-related death cases filed in criminal court in the first half of last year — 82 cases in all, with 80 defendants.
At least 59 of the accused were drug users themselves, according to police reports, court filings and interviews with law enforcement officials and defense lawyers. Roughly half had a relationship with the victim other than that of dealer. That group included six boyfriends, one girlfriend, a cousin, a brother and a son.
A few of those charged had tried to save the victims. (Good Samaritan laws protect those who call for help from drug possession charges, but generally not homicide charges.)
And while some people say there is never a good reason to help someone obtain drugs, particularly someone with addiction, others insist that there are many, including preventing withdrawal sickness or protecting them from the danger of a street buy.
In one Pennsylvania case, a woman was headed for detox, but knew she would not be admitted unless she tested positive for drugs. Her boyfriend told the police he had not wanted her to drive to Baltimore to buy heroin alone, so he helped her arrange the deal and promised her $40 if she brought him along.
He was not with her later that night when she overdosed and died, but he now faces a charge of drug delivery resulting in death.
Charge: third-degree murder
Pete Orput raised a coffee mug that proclaims, “I am a ray of sunshine,” with an expletive embedded therein. A recovering alcoholic, former Marine and now the prosecutor in Washington County outside Minneapolis, Mr. Orput is not given to sugarcoating.
The opioid manufacturers he is suing are “corporate schlockmeisters.” Prosecutors he deems overzealous are “political hacks.” And as to whether overdose prosecutions have had an impact on the street, the answer is simple: “No.”
He has found no reason to believe that such cases deter users or dealers, and says they rarely lead to high-level suppliers.
But Mr. Orput still prosecutes in overdose cases. He has filed third-degree murder charges against three high school students who sold synthetic drugs to a classmate; a 21-year-old with a drug addiction who sold pills to a National Guardsman; and a woman who gave her husband methadone.
He recognizes the shortcomings of this approach even as he feels compelled to take action. Each time his phone rings late at night with word of another death, he takes half an Ambien, smokes a couple of cigarettes in the bathroom, thinks about the grieving family he will soon meet — and then considers who will pay.
Overdose prosecutions picked up steam under the Obama administration. In 2015, the National Heroin Task Force recommended that cases against heroin dealers whose drugs proved fatal should be prioritized for three reasons: the product might be particularly potent, the prosecutions would serve as a deterrent, and the attention would educate the public about the “severe harm caused by heroin.”
David Hickton, co-chairman of the task force and a former United States attorney in the Western District of Pennsylvania, said he resisted attempts to make exceptions for drug distributors who suffered from addiction. “You’re either a trafficker or you’re a user,” he said in an interview, adding, “But it’s really not a bright line in the real world on the streets, I recognize that.”
In recent years, the overdose prosecution idea has spread from district attorney to district attorney. One PowerPoint presentation instructed investigators to “treat an overdose scene as a homicide scene from the beginning”; to look for remnants of naloxone, the revival agent, as evidence that someone was there when the victim died; and to use the victim’s cellphone to set up another deal before the supplier finds out the victim is dead.
Some cases are handed off to federal counterparts as the basis for larger takedowns, but more often the cases begin and end with bottom-rung sellers.
Even hard-liners like John Walters, the director of the White House Office of National Drug Control Policy under President George W. Bush, question the use of overdose homicide prosecutions without more systematic proof that they reduce drug use and emergency room visits. “In the absence of that, this is all gestures,” Mr. Walters said.
But many law enforcement officers hope that the cases act as a deterrent. When five people overdosed in two months in Twin Lakes, Wis. (population 6,000), the police charged 10 with reckless homicide. “We kind of want to put a bubble around our community and say we don’t — we’re not going to accept this here,” said Adam Grosz, the chief of police.
But one of his detectives, Katie Hall, said that the arrests had little effect on supply and demand: “If we can take one off, well, then they just go to the next one.”
Paradoxically, the punitive approach to overdoses is underpinned by the same rationale as the push to treat addiction as a public health issue. In the prosecutorial worldview, a criminal investigation dignifies victims by treating their deaths as crimes instead of sad inevitabilities.
“The analogy for me is the dead prostitute,” Mr. Orput said. “You know, years ago, the cop would look and go, ‘Well, that’s what happens,’ and that’s what they’d say with the junkie: ‘That’s why we don’t do drugs.’”
Charge: reckless homicide
The case of Nick Klamer and his childhood friend, Chase Thistle, shows just how hard it is to untangle the knot of blame in a fatal overdose.
Mr. Klamer’s death from heroin sent his father, Don Klamer, into a torture of regret and self-reproach. “I was the one that dropped the ball,” he said. “I was the one that was supposed to be keeping him alive.” Because of his addiction, the Klamers had long feared that Nick — dark-haired, green-eyed and lip-pierced, trailed by a cloud of Axe body spray and Acqua di Gio — would die young.
And yet the prosecution of Mr. Thistle, who was with Mr. Klamer when he scored and used, has helped the family cope, organizing an incomprehensible loss into a story in which Mr. Klamer is the victim. Addiction is a slippery adversary that cannot be held to account. But Mr. Thistle can be.
Mr. Klamer, 26, had been doing well in the months before his death in August 2015, living with his father in the rural Wisconsin town of Lodi, where their lawn backed right onto the lake. He worked the 6 a.m. shift with his father at a tool and die shop, and kept himself isolated from old friends and old habits by having no phone and no car.
But then, Mr. Thistle came home.
“It was only like a month,” said Melissa Klamer, a sister, “between when Chase started coming around again and when Nick died.”
Chase was the first friend Nick made when he moved to Wisconsin as a young teenager. The Klamers say they thought he was a bad influence, but it was Nick who first injected Chase with heroin in high school, not the other way around, and Ms. Klamer says her brother felt responsible for his friend’s addiction.
And it was Mr. Klamer who woke his father after midnight one night, asking for a ride. On the way, he asked for $200, telling a cooked-up story about a friend with a broken-down car. Credulous, his father drove the two friends to a parking lot in Madison, where they met up with friends and used the money to score. When they got home at 3 a.m., Nick said that he was going to stay up and go fishing before work.
Instead, the two young men shot up in a cinder-block boathouse at the edge of the Klamers’ backyard. Don Klamer went to work alone. In the afternoon, he came home and found his son’s body on the cracked boathouse floor.
Mr. Thistle later told the police that he had left his friend alive and snoring and walked back to his grandparents’ house, where he shot up again and overdosed himself.
In all, four people from the parking lot were charged in Mr. Klamer’s death. All pleaded guilty — two to reckless homicide, one to distribution. Mr. Thistle alone went to trial. He was convicted of reckless homicide and sentenced to three years in prison.
The Klamers say Mr. Thistle, after he was revived, could have done more to save Mr. Klamer, like telling the police, who went to the Klamer home to do a welfare check but got no answer at the front door, to look in the boathouse.
But Mr. Thistle’s mother, Melinda, said it made as much sense to blame her son as it did to blame her, as the person who gave birth to him. Other people, she said, had played at least as big a role. “Nick’s dad gave them $200 — two drug addicts, recovering drug addicts,” she said.
Don Klamer had told the police much the same thing, sobbing and slamming his fist into a table.
“I drove them right to his drug dealer,” the police report quoted him saying. “I killed my own son.”