When heroin users die from an overdose, some prosecutors pursue full-fledged murder charges against the dealers or friends who provided the drugs. Possible sentences include life without parole.
Sean Harrington has been in jail for more than 16 months. He was extradited from Philadelphia to Polk County, North Carolina, to face a second-degree murder charge. But he didn't shoot or stab anyone. Instead, he allegedly mailed heroin and cocaine to a friend and fellow addict named Elisif Bruun. She ingested them, probably as a speedball, and was found dead on February 11, 2014, lying face-down in her room at the CooperRiis Healing Community in Western North Carolina.
She was 24, her latest go at recovery her last.
Like Bruun, Harrington, now 26, is, a white kid from a middle-class family. He faces a possible 15 years in prison, according to the local prosecutor.
"My philosophy is if you're going to be out peddling the drugs, you're going to have be accountable to what happens on the receiving end of those narcotics," says Greg Newman, the North Carolina district attorney prosecuting the case. "If you give the narcotics to someone, or you sell them to someone, and they end up dead... well, you got to be responsible for that too."
But the victim's father, Peter Bruun, is an outspoken opponent of the prosecution.
"They're the predators, who are after victims like Sean," Bruun, an artist in Towson, Maryland, outside of Baltimore, tells VICE. "Sean is the victim of an illness... He's not the predator. He's the prey."
It can be tough to find a true villain among the legions using and selling opioids, two groups that often overlap. This is especially true given that for many, heroin use was preceded by the abuse of widely-prescribed opioids like OxyContin, which as of 2013, was responsible for more deaths than heroin. That includes Bruun who, according to her father, got started on opioids thanks to a friend selling OxyContin taken from his grandmother's medicine cabinet.
But prosecutors across America are dusting off old statutes to pursue full-fledged murder charges against dealers and even fellow users and friends who pass or sell heroin to a person who then dies of an overdose. Possible sentences include life without parole. The law-and-order crackdown is taking place at a moment when prominent figures in both major parties are, for the first time in decades, seriously considering reducing a jail and prison population that has grown to well more than 2 million—and curbing a war on drugs that has persistently failed to dampen the appetite for the stuff.
The Bruun case is a sobering reminder that even if reform is in the air, punishment remains America's favorite antidote.
"This is a reflection of a broader tendency of prosecutors in all capacities to identify what they perceive as a serious crime problem, and come up with creative ways that go beyond their basic standard approach," says Douglas A. Berman, an expert on criminal law and sentencing at Ohio State University's Moritz College of Law.
So far, the number of such charges that have been filed, and the criteria by which prosecutors are deciding to use them, remain murky. The phenomenon has received little attention from legal scholars and activists, and the charges have surprised defense lawyers who end up handling the cases.
"Has this become just a new tool, and one that they'll use every time they can link a death to a particular dealer?" Berman wonders. "Or is this something that prosecutors will calibrate with some culpability metric? Are they unlikely to bring this to bear when we're just looking at a small-time dealer?"
So far, it seems like plenty of smalltime hook-ups are getting caught in the fray. In September 2013, Joseph L. Robinson, an Illinois man living near near St. Louis, was sentenced to 20 years in federal prison for selling a man who later died two-tenths of a gram of heroin—for $30. Jim Porter, a spokesperson for Southern District of Illinois US Attorney Stephen Wigginton, says there was nothing else that made the crime particularly heinous. If there had been, he says, the sentence could have been even longer.
The prosecutions also run counter to the widespread adoption of harm-reduction policies like equipping first responders with the overdose-reversing drug naloxone, as well as "good Samaritan" laws, which offer limited legal protection to people who call 9-1-1 to report a drug-related medical emergency. But those laws typically offer immunity from low-level possession charges and not for drug dealing, according to the National Conference of State Legislatures—let alone for drug-related murder charges. Prosecutors hope that harsh charges will deter dealers and keep drugs away from users, but they could also convince drug addicts to flee the scene and leave someone dying on the floor.
The charges could even encourage violence on the part of dealers determined to silence informants.
"To bring punitive criminal justice responses to these situations will not prevent the underlying concern and will likely only exacerbate the situation due to those involved not speaking to police or emergency personnel, or even becoming violent to avoid such charges," Art Way, Colorado director for the Drug Policy Alliance, an organization critical of the drug war, writes in an email. "Much of the violence involved in and around the drug trade involves the intimidating or killing of informants or those considered to be informants."
In February 2014, beloved actor Philip Seymour Hoffman became the public face of the heroin crisis after he died from an overdose involving heroin, cocaine, amphetamines, and benzodiazepines. The New York Police Department was eager to find a culprit other than the actor's long-term addiction, and quickly settled on Robert Aaron—legal name Robert Aaron Vineberg—a musician and addict who said he sometimes sold heroin to friends. But it was never proved that Aaron's heroin was involved in Hoffman's death, and charges were later downgraded from serious distribution to possession, to which he pleaded guilty.
"At some level it's like the Salem witch trials," Aaron, who did not respond to an interview request, told the New York Times last year. "You can't have a witch hunt without a witch. I'm just unlucky enough to be the guy. You gotta have a human sacrifice, and that's what I am."
We have, of course, seen this movie before.
It was in the late 1980s that some states and the federal government enacted laws specifically intended to punish dealers for drug-related deaths. Basketball star Len Bias's high-profile death from a cocaine overdose in 1986 helped mobilize political sentiment in favor of a crackdown just as the crack epidemic began to dominate headlines. Today, met with a new drug crisis, putting people behind bars remains the US government's default approach.
In the Cleveland and Toledo area, Steven Dettelbach, the US Attorney for the Northern District of Ohio, is charging dealers under a federal law that potentially carries a 20-year mandatory minimum sentence for a drug-dealing offense resulting in death or serious injury—and mandatory life for someone with a prior felony drug conviction. In Cuyahoga County, there were 198 heroin-related deaths in 2014, according to the Northeast Ohio Media Group.
"Federal penalties are extremely serious, and the people who are out there dealing what amounts to poison need to get the message that this is going to be treated like a homicide," Dettelbach tells VICE in an interview.
Though former Attorney General Eric Holder instructed federal prosecutors to pursue harsh mandatory minimums more judiciously in 2013, that doesn't mean they won't seek long sentences for drug crimes, according to Dettelbach. Rather, he says his office is focusing such charges on the most serious of offenders, particularly those dealing heroin mixed with the powerful synthetic opioid fentanyl, which has been linked to many overdose deaths.
"The fentanyl issue is actually now becoming more acute than the straight heroin issue," Dettelbach says. "In my mind, I will just tell you it's hard to be a dealer in fentanyl and claim that you don't know its going to kill some people."
Federal prosecutors in states around the country, including Oregon, Texas, Pennsylvania, and West Virginia, are filing these kinds of charges in response to opioid deaths. In Southern Illinois, Porter says that their office began to file such charges after Wigginton's 2010 appointment, and that he has so far won 11 convictions. In July, a federal judge in Kentucky sentenced a man to life without parole for dealing oxycodone to a user who died; that district's US Attorney's Office said it was "the first time in Kentucky that a life sentence was imposed in an overdose death case involving prescription drugs." (There is no parole in the federal system for crimes committed on or after November 1, 1987.)
Some law enforcement officials are no doubt embracing a bluntly indiscriminate approach—in July, David J. Hickton, US attorney for the Western District of Pennsylvania, announced that "it is the policy of this office that if we can establish that a seller of heroin caused a death, we are going to charge it. This heroin crisis requires that response."
That would add up to a hell of a lot of federal murder charges. Heroin contributed to at least 799 overdose deaths in Allegheny County, Pennsylvania, between 2008 and July 1 of this year, according to OverdoseFreePA.
State prosecutors also appear to be pursuing harsh charges with growing frequency. In Wisconsin, prosecutors charged 71 people with first-degree reckless homicide by drug delivery in 2013, an increase from 47 in 2012, according to USA Today.
In New Jersey, Ocean County Prosecutor Joseph Coronato has made these sorts of charges a focus, and his office is training police around the state on how to investigate heroin-related deaths.
"We kind of call it our checkmate charge," says Al Della Fave, a spokesperson.
Coronato's office first secured a conviction under the state's strict liability for drug-induced deaths statute soon after his 2013 appointment, according to Della Fave. So far, he says, they have secured more than 20 such convictions, and each defendant has pleaded guilty and received a sentence of about eight years.
State and federal laws don't limit these charges to major dealers, or to those who act with malicious intent. In New Orleans, Chelcie Schleben and her reported ex-boyfriend Joshua Lore currently face life without parole for the February 2014 fatal overdose "murder" of 23-year-old Kody Woods.
The charges are severe "even by extreme Louisiana standards," says Stephen Singer, a professor at Loyola Law School and Schleben's lawyer.
Louisiana already has the highest number of nonviolent offenders serving life without parole, according to a 2013 American Civil Liberties Union report, and state drug sentences tend to be extraordinarily harsh. Last year, Governor Bobby Jindal signed legislation lengthening the possible sentence for repeat heroin dealers to 99 years.
Schleben had been in rehab before the charges were filed, and had been doing well, he says.
"Seems a bit much for somebody with no prior record and no intent," Singer tells me. "These are three friends sharing heroin."
In Charleston, West Virginia, prosecutors have charged Steven Craig Coleman with murder in connection with a February heroin-related death. Rico Moore, Coleman's lawyer, is mystified by the charges.
"He's a drug user," Moore says. "He's not as they allege—he's not a drug dealer... It makes absolutely no sense to punish someone who's an addict."
According to Moore, Coleman's opioid addiction stems from his abuse of lawfully-prescribed drugs. Coleman is poor, he says, his mother died from drug use, and his father is an addict. While the crack epidemic tore through poor urban black neighborhoods, the opioid crisis is hitting white communities from rural Appalachia to suburban Staten Island the hardest. The fact that addicts are often white may be encouraging a less punitive reaction to heroin users than it did for crack addicts. But by that same token, the pressure to put dealers behind bars might be just as great, if not greater.
In Ohio, prosecutors don't yet have the ability to seek the harshest penalties available under state law for these deaths—but they want them. Last September, Hamilton County Prosecutor County prosecutor Joseph T. Deters announced involuntary manslaughter charges for involvement in a fatal intoxication, the first time, according to their office, such charges had been filed in county history. Deters took the opportunity to complain that the the law should "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."
Last year, legislation to that effect passed the state house in Ohio with Attorney General Mike DeWine's enthusiastic support. Republican State Rep. Jim Butler, who introduced the legislation, plans to reintroduce a bill altered to better ensure that mere users are not the ones prosecuted for deaths. But he wants to tack on an increase in sentences for drug trafficking as well.
"I think what we need to do is be tougher on drug traffickers and be more compassionate to drug users," he says.
But it's not always easy to tell the difference.
During the summer of 2013, Elisif Bruun lived around Bar Harbor, Maine, with a young man named Gordon Falt, whom she had met at the Spring Lake Ranch Therapeutic Community, a treatment center in Vermont.
According to Falt, Bruun had a dealer from back home in Maryland mail heroin to her while they were in rehab, which the two used together. They soon checked out, and moved to Maine, where they met Sean Harrington. Harrington, a rock musician who grew up in South Philadelphia, would sell small amounts of heroin to supply his own habit, Falt says. Harrington went to Maine, according to his father, in an effort to keep stay away from Philly's thriving heroin market.
But addicts are resourceful. And heroin is now plentiful almost everywhere in America.
"They shared artistic tendencies and, unfortunately, drug issues," emails Michael Harrington, Sean's dad, referring to his son's friendship with Bruun. "Sean had a difficult summer, he was homeless and jobless for awhile. Elisif was one of the few bright spots for him. He always spoke well of her, I think he looked up to her."
The summer quickly unraveled. Bruun would get fired from jobs, and kicked out of apartments; Falt was arrested for burglary. Bruun agreed to give rehab another try. Once in North Carolina, Bruun apparently requested that Harrington send her heroin. Peter Bruun, Michael Harrington, and Falt all agree that Sean had no idea that Elisif was in rehab at that time. "People who use drugs help other people who use drugs out by providing the drugs," her father says. "People who use drugs, if they don't use drugs and they're not in treatment, they're ill. They're literally sick."
In February, Elisif Bruun was found dead in her room.
"Sean was a mess, crying, suicidal, but he still couldn't quit the drugs," writes his father.
That May, Michael Harrington found his son on the street, and tried to convince him to come home and clean up. Sean refused rehab. But to his father's surprise he did agree to get a psychiatric evaluation at Friends Hospital, a psychiatric facility not far from Philadelphia's busiest drug corners. Sean quickly checked himself out, crossed the street, and was arrested for shoplifting at a Home Depot, his father says. When police ran his name, the North Carolina warrant for his arrest showed up.
"When a Philly homicide detective called the next morning, I assumed Sean was dead," Harrington writes. "What he told me was maybe more shocking."
The local media greeted Sean Harrington's August 2014 extradition to North Carolina triumphantly. It was, Polk County Sheriff's Detective BJ Bayne told reporters, vindication for Elisif's family.
"They don't want this to happen to any one else's daughter," Detective Bayne said, according to a September 2014 article in the Tryon Daily Bulletin.
That was misleading. In May 2014, Peter Bruun had written to Bayne, informing her that he did not want to see Sean Harrington prosecuted, according to an e-mail he provided to VICE.
"I hold this young man as little to blame for Elisif's death as I hold Elisif: in each case, an evil disease is at play; in each case, a young person is more victim than perpetrator," wrote Bruun, who has since become close to the Harrington family. "I feel nothing but compassion for this young man in jail, and I personally hold him unaccountable for Elisif's passing. I do not want him punished—I want him to receive treatment, or at least the option of treatment. He deserves the chance to get well."
Bayne never responded, Bruun says.
"When I saw those stories, really, I was both horrified and angry and sort of shocked. Everything about it was wrong. Everything," he says.
Asked why she misrepresented the family's view, Detective Bayne told VICE that the family had supported her approach "at that time... and I was later notified that they did not."
But it's unclear how that could be true, since Peter Bruun had written her months prior. Bayne demurred, insisting should couldn't recall "the dates," and suddenly adding that she couldn't have further discussions while the case was being prosecuted.
As for Newman, the local prosecutor, he has not spoken to the Bruun family at all. And he won't let their opposition sway him.
"Well, my job is not to base the decision to prosecute on people's opinions, including the victims' opinions," he says. "I received correspondence from them. And I will speak to them when I get ready to try the case. I will."
Sean Harrington's lawyer declined an interview request on his behalf.
It's unclear where the cocaine came from. Peter Bruun says his daughter must have gotten it in North Carolina. Gordon Falt agrees, as Sean Harrington has admitted sending the heroin but denied having anything to do with the cocaine.
"We talked about it," Falt says, recalling a conversation soon after Bruun's death. "Because he felt so awful. He was beside himself."
The fact that Bruun took cocaine might present Harrington a chance at beating the charge. In 2014, in the little-discussed case Burrage v. United States, the Supreme Court ruled that under federal law, a prosecutor must prove that a dealer provided a drug that decisively caused a user's death rather than having merely contributed to it. Elisif Bruun's preference for speedballs may have doomed her, but it might help save Sean Harrington.
Though Burrage decided a question of federal sentencing law, it could have impact on local courts' interpretation of state statutes, according to attorney Angela Campbell, who argued the case before the Supreme Court. In North Carolina, the murder statute may require proving not only that a supplied drug definitely caused a death but also that the dealer acted with malice. Unfortunately for Harrington, the state Supreme Court has interpreted the mere provision of drugs to potentially imply malice.
Peter Bruun believes that ending the stigmatization of drug users, and not prosecution, is the best way to fight addiction, and he has launched the arts-based New Day Campaign to spread that message. But the criminal justice reform project remains, it seems, one drug crisis or a spate of urban shootings away from a major setback at the hands of prosecutors, a hammer that sees almost any social problem as a nail.
Asked whether he had ever reviewed any sort of social scientific evidence that might suggest murder prosecutions for providing drugs that kill would do anything to reduce substance abuse, Newman, the prosecutor, came up short.
"I can't, no," he tells VICE. "The only thing that I can say is that in our community here we routinely are rated as a top place in the country to come live. And that's not by accident. That means you have a low crime rate, and the low crime rate does not occur by accident."
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