Experts: Pa. law intended to punish drug dealers in overdose cases could be backfiring

Jun. 28—A decade ago, amid rising casualties from drug abuse, a Pennsylvania drug law was revised to target dealers responsible for overdose deaths. The new statute was termed "drug delivery resulting in death," or DDRD in legal shorthand. It called for 20- to 40-year prison sentences for anyone who sells or transfers drugs to someone who then dies from their consumption.

Today, legal experts and researchers from Pennsylvania and beyond have come to a grim observation: The harsher law is causing overdose deaths.

The paradox is based on fear. A series of studies compiled by the Drug Policy Alliance shows that many people suffering from substance use disorder who witness an overdose will either not call 911 or delay calling because of their fear of arrest and prosecution.

Such prosecutions, said Jonathan Fodi, a former assistant district attorney-turned defense attorney, potentially do the opposite of what the law intends: reduce fatal overdoses.

He said the last person holding the drugs often is the one to take the fall, and that could keep people from calling for help if someone they're with overdoses.

"The practical application here is that if you were part of the transfer of the controlled substance to that person that's (overdosing), and you're on the scene watching it happen and you know these types of prosecutions are out there, you very well might flee the scene rather than call for help," said Fodi, who is vice president of the western district of the Pennsylvania Association of Criminal Defense Lawyers.

Pennsylvania for years has led the nation in the number of DDRD charges, also called drug-induced homicide. Between 1974 and 2018, prosecutors filed the charge 781 times, according to research from the Health in Justice Action Lab, which is part of Northeastern University's School of Law in Boston.

About 625 of those filings came during 2015-18, numbers from the Administrative Office of Pennsylvania Courts show. Another 246 came in 2019.

A 2019 Penn State Law Review piece took aim at the statute, calling such an approach to reducing overdose deaths "ineffective" and noted it "often punishes the wrong individuals."

"As it stands," review author Stormie Mauck wrote, "drug addicts may face imprisonment of up to 40 years for simply sharing drugs with a friend who overdoses and may never receive the possibility of treatment."

A Tribune-Review analysis of dozens of criminal complaints filed against defendants in DDRD cases in parts of Southwestern Pennsylvania in recent years indicated many facing these charges are relatively low-level dealers. Though criminal complaints do not always give all of the facts of the case — they need only present enough information to support charges — investigators themselves note in many cases the suspect is not the source of the drugs but rather the last rung in the supply chain above the victim.

Often, one defense attorney said, the person facing charges was doing someone a favor: A friend calls and says they're running low and they're getting dope sick, or suffering the pain of withdrawal. The seller obliges, hoping that when the tables are turned, someone will help them out, too.

In one 2019 case, a Westmoreland County man died from an overdose of drugs he'd gotten from a friend of a friend of a friend. Though the drugs ultimately came from a man called "Bee" in Penn Hills, the three individuals between the victim and Bee were all charged with drug delivery resulting in death.

One pleaded guilty to drug delivery resulting in death and received a 5- to 10-year prison sentence. Another pleaded guilty to the same charge and was sentenced to a minimum of one year minus one day in jail and a maximum of two years minus one day. The third person is awaiting trial.

In 2014, a Delmont woman called paramedics when she found her boyfriend unresponsive in their bathroom. She had waited 2 1/2 hours to call, police discovered, and she said she had first tried to wake him herself and then called the man who had sold them the heroin, who also failed to revive the man and took the evidence with him.

The woman and her boyfriend bought the heroin together. The woman was sentenced to 11 1/2 to 23 months in jail and five years' probation. The man who sold the couple the drugs pleaded guilty to DDRD and was sentenced to 5 to 10 years.

New Kensington police in 2018 responded to a call about a man who had died of an overdose in his truck in a Taco Bell parking lot. Security camera footage showed two friends maneuvering him into his truck as he lost consciousness. Two friends admitted to buying heroin and then taking some to the man at Taco Bell. One of the two was charged with DDRD but pleaded guilty to drug possession for eight years' probation.

In a Pittsburgh case from 2017, the victim and a friend went to the defendant asking him to get them heroin. He agreed and, according to the criminal complaint, explained that "he had to go through a person who then had to see another person to obtain the heroin." The man was sentenced to time-served — about 126 days — in 2019 after pleading guilty to involuntary manslaughter.

In 2017, a Monessen woman sent her cousin to buy a brick of heroin, though court records do not indicate who the drugs were purchased from. The woman sold five stamp bags to a friend, who then sold four bags to an Elizabeth Borough man who died from a fatal overdose.

Only the Monessen woman was charged. She pleaded guilty last year to involuntary manslaughter and was sentenced to three to six months in jail.

The Tribune-Review's analysis looked at 63 adjudicated cases in Allegheny, Beaver, Butler, Washington and Westmoreland counties. In 34 of the cases, the defendant was convicted, pleaded guilty or pleaded no contest to the original DDRD charge. In 29 cases, they pleaded to or were convicted of a lesser charge, almost exclusively involuntary manslaughter or possession with intent to sell or deliver.

A similar 2017 analysis found that prosecutors statewide filed DDRD charges 317 times from 2011 to Sept. 30, 2017. Only 189 had been resolved by the end of that year, and of those, 43% ended with a conviction or guilty or no-contest pleas to the original charge of drug delivery resulting in death.

The other 57%, the analysis found, resulted in pleas or convictions of lesser charges. Twenty-two percent of the time, those lesser charges were involuntary manslaughter.

The 2019 report from the Health in Justice Lab, in an analysis of news reports on DDRD and drug-induced homicide charges, found that defendants are about equal parts friend/family member/acquaintance and "traditional" buyer/seller.

The analysis, which looked at 213 media reports from 2000 to 2017, found 106 defendants — about 50% — were a caretaker, family member, friend or partner. About 100, or 47%, were considered a traditional buyer and dealer relationship. Seven cases, or 3%, involved a doctor and a patient.

More cases have fallen into the friend/family category in recent years. When previous decades — going back to 1974 — are taken into account, the percentages are approximately 70% buyer/dealer, 27% family/friend/caretaker and 3% doctor/patient.

Fodi said cases handled by the group's members have fallen heavily on one side of the spectrum.

"Anecdotally, several have handled cases where a fellow user has been charged with the DDRD statute," he said. "None of us, on the flip side, have represented what you might categorize as a higher-level 'true' dealer — what we might say is the type of individual who should be targeted by this type of legislation."

The law itself has been around for decades, and the charge was a type of third-degree murder. Using the charge as a type of third-degree murder means the crime itself must include certain important elements: malice and intent.

That was the ruling from the Pennsylvania Supreme Court in 2005 in an opinion that noted "the applicable mental state for a conviction under the statute is malice."

Lawmakers revisited the statute in 2011 and ultimately voted to reclassify the statute as a first-degree felony rather than a type of murder charge. The change did away with the need to prove intent.

In the Legislature, there was overwhelming support for the change, and it passed both the state House and Senate unanimously.

Former Rep. Jeff Pyle, R-Armstrong County, played upon the inherent tragedy of overdoses when he expressed his support for the bill on the house floor in April 2011.

"If you have ever been to a funeral of a young lady or young man who has made the mistake of taking illegal drugs and giving up their life for it, that is not the hard part," he said. "The hard part is looking the parents in the eye and telling them you are trying to do something positive out of this."

At the time, Pyle called the change one of "very subtle nuance."

That nuance made it far easier to sentence someone to a murder-length prison term without the need to prove malice: The statute, though no longer considered a kind of homicide charge, still carries a sentence of 20 to 40 years.

Federal law has included a sentencing enhancement of 20 years to life in prison that can be tacked on to federal drug charges when there has been a fatal drug overdose. That penalty resulted from the 1986 Anti-Drug Abuse Act.

Jeremiah Goulka is director of justice policy at Northeastern's Health in Justice Action Lab. He said many of the statutes, including at the federal level, landed on the books in the 1980s amid a nationwide drug panic.

"These things were rarely used until the overdose crisis got enough popular attention and political attention to prompt prosecutors to do something about it — or at least be seen doing something about it," Goulka said.

In Pennsylvania, a state hit hard by a rising tide of opioid overdose deaths that started in the 2010s, prosecutors have touted the updated charge as way to get justice for overdose victims and deter dealers. Deterring dealers, in theory, would mean less product on the streets.

Eugene Vittone, district attorney for Washington County and vice president of the Pennsylvania District Attorneys Association, was an early adopter of the statute as a tool to disrupt the drug supply.

"There wasn't any blueprint on how to address this when it was thrust upon us," he said of the overdose crisis.

There were 36 overdose deaths in Washington County in 2012, the same year Vittone took office and formed a countywide task force meant to target the ballooning epidemic. Now, in 2021, there have been at least that many in just the first half of the year.

Nearly 10 of those came in a three-week span in February and March, when the county saw a spate of deaths caused by fentanyl-laced cocaine.

"You're not going to get a lot of sympathy from me for somebody that's coming into Washington County and putting fentanyl in the cocaine," Vittone said. "That's flat-out poisoning, in my mind — particularly if they aren't a user and they're doing it just to make a quick buck."

He said those are the types of dealers his office is interested in, and his team tries to screen cases for instances where someone might be equal parts dealer and struggling with addiction themselves.

"We're interested in the guys coming in from Philly, from Detroit, from New Jersey that are setting up shop here and putting fentanyl into the heroin supply or the cocaine supply," Vittone said. "They know what they're doing. They know how dangerous that drug is."

He said the prosecutions are working, noting there have been several instances in which a large-scale supplier has been arrested and overdose rates have dropped for a month or two. He said a similar drop happened early this year when authorities warned residents that cocaine circulating in the area was cut with fentanyl.

Mike Manko, a spokesman for Allegheny County District Attorney Stephen A. Zappala Jr., said his office, too, works to weed out individuals who are lower-level sellers and aren't the ones bringing the drugs into the area. He said the office has one of the lowest rates of filing DDRD cases in the state.

"Each of these cases goes through a thorough, detailed and exhaustive review to determine if charges are appropriate and to ensure that those charges are directed only at individuals we believe provided and are trafficking in the controlled substance that was responsible for the overdose," he said.

Goulka, the Northeastern analyst, said it's difficult to tell whether such prosecutions are actually disrupting the wider supply chain, because "these cases are rarely brought against major players." While attorneys general and district attorneys nationwide might be filing felony drug charges against large-scale traffickers, they're often not charged with drug-induced homicide.

"It's harder to do," he said of bringing death-related charges against major traffickers, noting the separation between traffickers and users often is so wide that it's difficult to prove specific drugs in question can be traced between the two.

"It's hard to prove that up the supply chain, so people only go for the, essentially, easier person to get, which is whoever was the last person to hold onto the drugs, which is so often the fellow users," Goulka said. "And when it's not a fellow user, it's just like a street seller or something."

Megan Guza is a Tribune-Review staff writer. You can contact Megan at 412-380-8519, mguza@triblive.com or via Twitter .