Bystanders To Fatal Overdoses Increasingly Becoming Criminal Defendants

Alexis Santa Barbara is a 39-year-old mother of three from a working-class suburb of Philadelphia.

Santa Barbara's addiction story follows a familiar course: She had been prescribed Percocet years ago to treat back pain. When the drug became unavailable, she turned to heroin. And she became hooked — not long after getting laid off from her job at a local deli.

Across the street from her, her neighbor, identified just as "J.M." in court papers, was also in the grip of an opioid addiction.

How the two of their lives intersect next dramatically altered their connection, from two people in the same community dealing with the same sickness to something else: an alleged victim and a perpetrator, cast that way because of a drug transaction that took a deadly turn.

One evening in late March, that neighbor handed Santa Barbara $10 and asked if she'd score him a fix of heroin.

"He just asked her to grab it, so she did," said Emily Mano, Santa Barbara's 18-year-old daughter. "She doesn't always do stuff like that. It was just a favor. She'd never mean to harm someone. Never."

To prosecutors, it wasn't just a favor. It was crime. Authorities say Santa Barbara obtained heroin, and whether she knew it or not, the batch was laced with the powerful and often deadly synthetic drug, Fentanyl. Shortly after, court records show, Santa Barbara texted her neighbor: "Are you OK??"

He wasn't.

"His wife comes home and finds him collapsed on the floor of a bedroom," said George Yacoubian, Santa Barbara's defense lawyer.

Emergency responders pronounced the neighbor dead on the scene. Santa Barbara is now in jail awaiting trial on third-degree murder charges. Before she turned herself in, she revealed to her daughter the scourge of addiction that she had managed to long keep out of her view.

"She sat me down and she said that something bad happened. She said that she would be getting into trouble," Mano said.

The definition of drug dealer

More and more, trouble is following fellow drug users, friends and relatives of those dying from overdoses. With the country's opioid crisis widening – having killed more people in 2016, for instance, than the deadliest year of the AIDS epidemic – bystanders to fatal overdoses are increasingly becoming criminal defendants.

Pennsylvania prosecutors in Delaware County who are pursuing the case against Santa Barbara declined an interview request. But among the criminal charges they are pressing against her is drug delivery resulting in death, a first-degree felony carrying the maximum punishment of 20 to 40 years in prison.

In Pennsylvania, the number of people charged with this version of third-degree murder from an accidental overdose went from 15 in 2013 to 205 last year.

In roughly the same period, news reports of such cases tripled nationwide, according to the Oakland-based nonprofit Drug Policy Alliance. Twenty states have drug-induced homicide laws on the books that criminalize helping someone obtain drugs. And in recent months, the alliance found that 13 additional states have created or beefed up drug-induced homicide laws.

"It really misplaces the blame for their loved one's death on another person who really has no more culpability than the one who died," LaSalle said.

Many of the laws, according to the alliance, were passed during the crack epidemic in the 1980s to combat dealers and major distributors. Now, the laws are being revived as law enforcement officials search for new ways to curb the opioid-driven overdose crisis, which claimed the lives of more than 63,000 people the U.S. in 2016

But the Alliance's LaSalle says prosecutors are stretching the definition of dealer to include almost anyone tied to drug use.

"You are often charging someone who themselves was using or sharing with the person who died, and with a different twist of fate, it could've been that person who died and the other person being charged," she said.

In some of the cases, those now defending against criminal charges tried to save the person who overdosed by using Narcan, the overdose-reversing drug, or even calling 911 for help. Most states have Good Samaritan laws making someone immune from drug charges if they seek medical assistance for a fellow user. But the protections generally do not cover drug-induced homicide. And so, LaSalle worries some overdoses that could have otherwise been averted will be fatal because someone was too afraid to call the authorities.

"If they don't call 911, that's often used as evidence of this additional level of culpability that they left the person to die," LaSalle said. "But of course, in the moment, that was really the rational decision for the person to make."

Treating overdose sites as crime scenes

There is little evidence that increasing penalties and sending more people to jail serve as effective deterrents to those struggling with addiction. And often if a drug supplier is arrested, another one quickly pops up.

To LaSalle and other critics of the prosecution push, attacking the root causes of addiction does not mean going after supply — the people obtaining drugs for users — but rather addressing the demand, the drug users, by helping people enter detox and other rehabilitative treatment.

"Part of this is about prosecutors wanting to feel responsive to the gravity of the moment," she said.

That is certainly true in the Cincinnati area, which is seeing a surge in opioid deaths. Police commander Tom Fallon leads a dozen investigators on call 24-7 for the Hamilton County Heroin Task Force.

It used to be, Fallon said, that when investigators arrived at the site of an overdose, they would look around for signs of foul play, notify next of kin then, most of the time, the case was closed. But now there is a new norm. Fallon and many police departments nationwide are treating overdose sites as crime scenes.

"We're documenting overdose scenes just as we would any other homicide scene: with photos, with measurements, and we look for any kind of key evidence that would lead back to the supplier," Fallon said.

He said drug-death prosecutions dignify someone's passing by showing families of victims that, "their life mattered. And the message we want to get out to drug dealers is: if you sell drugs that kill somebody, you're going to go away. And you're going to go away from a long time."

The threat of hard time, Fallon said, could scare dealers or casual buyers of opioids out of participating in the drug trade. In addition, he said, the heavy charges could be used as leverage against low-level dealers to identify major drug traffickers who are responsible for the spread of a massive supply of drugs.

Advocates for Santa Barbara, meanwhile, say prosecutors are pointing the finger at her as a way of having a culprit. They insist her actions do not amount to murder. She was not present when her neighbor died, for instance. In the criminal complaint filed by police, she allegedly told a friend that she thinks she "gave the guy across the street a bad bag." But whether what she gave directly caused his death is inconclusive.

To win in court, prosecutors do not have to show that Santa Barbara intended to kill her neighbor, only that the drugs she gave him were lethal.

"While his death is tragic," said Yacoubian, Santa Barbara's lawyer. "It's challenging for Alexandra to come to kind of grips with the fact that she is being alleged to have been part of a death."

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