More states push homicide charges in heroin overdoses

As legislators across the country pass anti-heroin bills and health officials hold community summits, prosecutors in more states are pursuing homicide, and similarly serious charges, against those who provided the deadly doses.

Whether heroin came from a drug dealer or a friend, overdose deaths increasingly yield homicide charges in states like Wisconsin.

Wisconsin prosecutors charged 71 people with first-degree reckless homicide by drug delivery in 2013, up from 47 in 2012. The tally is on pace to rise again this year, with 36 charges through May.

"We do want to send that message to the community that using heroin and selling heroin does have these significant ramifications," said David Lasee, district attorney in Brown County, the fourth largest county in Wisconsin, where overdose deaths soared from 93 in 2010 to 227 last year.

Wisconsin was among a flurry of states to criminalize drug delivery causing death in the late 1980s after the 1986 cocaine overdose death of college basketball player Len Bias, a top NBA prospect. The charge applies to an array of illegal drugs linked to an overdose death, but it has been used almost exclusively for heroin cases in Wisconsin.

The definition and penalties of drug homicide charges vary by state, but the offense typically applies to anyone in the supply chain leading to a death. This gives prosecutors leverage to force plea agreements and get information on larger dealers.

"It's a growing trend, but still a tactic used in a minority of states around the country," said Ron Sullivan, director of the Criminal Justice Institute at Harvard Law School.

Federal prosecutors have long been able to seek increased penalties in drug delivery cases involving death, but a growing number of states are also enabling such prosecutions.

Illinois and Pennsylvania passed drug-induced homicide laws in 2011, and Kansas in 2012. Ohio legislators are considering such a law, but some prosecutors there are already charging heroin-related deaths as reckless homicide or involuntary manslaughter.

Other states have had the law for years but rarely invoke it. Officials in Minnesota recorded 10 drug homicide convictions from 2010 to 2013, and Washington State nine convictions in that span.

Michigan is among the states that use the charge heavily, filing it against 75 people from 2010 to 2013, according to the Michigan Supreme Court.

Even within states, however, use of the charge is uneven.

Wayne County, Michigan, which includes Detroit, has filed no drug-related homicide charges in the last few years because "police have not brought us any cases where we have been able to charge," said Maria Miller, an assistant prosecutor. Milwaukee County, Wisconsin's largest, filed 19 drug-related homicide charges from 2010 to 2013 despite having 198 heroin overdose deaths, while the smaller Waukesha County had 40 heroin deaths but filed a state-high 26 charges.

Successful prosecution of drug-related homicides require coordination between prosecutors and those who first arrive on the scene, said Waukesha County District Attorney Brad Schimel.

"You've got to have your law enforcement and even your EMS trained to know how to do these kinds of investigations, to recognize the signs, to know how to preserve the evidence," said Schimel, who is running as a Republican to become Wisconsin's next attorney general. "It's a lot of legwork. It's old-fashioned policing — calling people, knocking on doors."

The drug homicide charge typically carries a heavy penalty — up to 25 years in prison in Wisconsin — and yields substantial prison time. The 21 heroin death convictions from 2013 yielded an average of six years in prison in Wisconsin. Similar sentences from the past four years averaged eight years in Minnesota, six years in Washington State and 14 years in Pennsylvania, according to the respective state courts.

Overdose deaths may not be intended, prosecutors say, but they are a foreseeable consequence of illicit drug use — not accidents. They liken the cases to deaths caused by drunken driving.

But there is disagreement on the fairness of homicide charges in drug deaths.

Robin Shellow, a Milwaukee attorney who has defended about a dozen drug homicide cases, said prosecutions have risen because of the wider demographic of heroin users. A recent study found 90 percent of those who began using in the last decade are white, and Shellow said that means pressure on prosecutors from people "capable of bringing power and influence to bear."

Sullivan, the Harvard Law professor, said he thinks prosecutors will pursue drug homicide cases "much more aggressively" over the next 10 to 15 years — but he doesn't think it's right.

"The level of punishment should not be based on fortuity," Sullivan said. "It should be based on the intent of the individual at the time the crime was committed."