Pennsylvania code is written to allow an individual to acquire a prison sentence of up to 40 years for the delivery of a drug that results in death.
§ 2506. Drug delivery resulting in death.
(a) Offense defined.–A person commits a felony of the first degree if the person intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance or counterfeit controlled substance in violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, and another person dies as a result of using the substance.
(b) Penalty.– (1) A person convicted under subsection (a) shall be sentenced to a term of imprisonment which shall be fixed by the court at not more than 40 years.
That little clause in this law is not pragmatic, but it’s draconian. It’s a relic from the Reagan era and Clinton era, and worst of all ripe for judicial or prosecutorial abuse and fake political campaign stump uses. It has no effectual purpose.
Governor Tom Wolf has emphasized the necessity to evolve in how communities respond and treat the escalating opioid crisis. He has intentionally sought the advice and counsel of medical doctors when deciding how to legislate. The common consensous and reoccurring theme among experts is that the opioid crisis needs to be approached as a public health problem, and not approached as a criminal justice problem.
Despite these reform initiatives, the criminal justice system seems reluctant to let that control go or to let medical opinion and change influence their handling of the drug fatality crisis.
The war on drugs began under the Reagan administration, but the approach to over-incarcerate drug addicted defendants was intensified in the 1990s under the Clinton administration when the rate of incarceration for nonviolent drug related offenses disturbingly sky-rocketed. It was a reactionary move by the Clinton administration, and one which they would later publicly admit was a mistake.
There is no question that when Governor Wolf announced Pennsylvania was in a state of “crisis” as a result of opioid fatalities, he wasn’t being dramatic. The statistics are alarming.
The 2016 figures, released Thursday, show more than 63,600 Americans died of drug overdoses in 2016. Of them, 4,627 were from Pennsylvania. That’s up from 3,264 fatal overdoses in Pennsylvania in 2015. In 2016, Pennsylvania’s drug overdose death rate was 37.9 per 100,000 people. Only West Virginia, Ohio and New Hampshire had a higher overdose death rate than the Keystone State.
One reactionary measure employed by politicians is to treat drug fatality cases as you would a homecide case, and there is legislation on the books that supports this approach. Pennsylvania really saw this trend of treating drug delivery death cases as homicide cases begin to really be abused the Kane administration, when the rising trend of drug related fatalities really began to dramatically escalate, only to continue that trend to present.
These fatality statistics were of course alarming to the public voting populations, who was at that point demanding legislative action. Suddenly the idea of jailing criminal defendants for 30 to 40 years seemed like a serious enough sentence to hand down that it would manifest into some eventual abatement in the fatality statistics. Despite these aggressive and very serious punitive measures, there has been no mitigation of the statistics. Instead, they continue at their disturbing upward trend, and we lose thousands of people in Pennsylvania due to opioid epidemics per year.
If the legal theory that delivery of a drug that results in death should be processed like a homicide case, than we are also jailing thousands of people per year (in equal numbers to fatalities).
Office of Drug Administration (ODA)Statistics reflect that the majority of drug trafficking related offenses resulting in deaths are perpetuated by addicts. Yet the criminal justice system in Pennsylvania, as well as the unclear laws on the books, have yet to clearly discern or define the difference between a “drug dealer” and a “drug addict.”
The pressure on elected officials, particularly in economically-devastated small-town rural areas, is that they must do something about the drug epidemic. Having a shortage of answers, it is the trend to start treating these cases as homicides. This trend has been going on for a number of years and we have seen zero mitigation to the statistical increasing trend of drug fatalities. In short, the approach is defective.
Logically it follows that with the rising trend to approach an opioid fatality as you would a homicide case, Pennsylvania has also seen an alarming increase in the homicide convictions rate. But if you look closer at the numbers, the mounting homicide statistics are largely due to the mounting drug fatality statistics, as a great number of these drug delivery fatalities ultimately result into the equivalent of a third degree murder charge.
So when you look at the spike in the number of homicides, you shouldn’t be thinking that the world is becoming a more terrible or violent place, you should have that understanding that the criminal justice system and laws on the books are trending to now encourage prosecutors to treat opioid death investigations with the intention of eventually charging someone with third degree murder for “delivering” drugs.
This Pennsylvania legislation that allows for treating “drug delivery cases resulting in death” as murder cases is a law that has been in effect since the late 1980s, but it was seldom called upon until recently in the last decade when politicians began to react to pressures that were inflicted by public alarm at the dramatic changes to statistics pertaining to opioid fatalities. And I just want to emphasize (as I have previously, many times) that despite employment of this previously little used clause allowing for homicide charges in drug delivery deaths, there has been no direct causative mitigatory effect on the opioid fatality death statistics in Pennsylvania. Despite use of this very rarely used clause allowing this charge, we are seeing not seeing a change or even a plateau of the opioid fatality statistics. Instead, they are intensifying at the same steady evenly incremental increasing rate as when we were charging drug delivery cases as drug delivery cases, and not using the homicide clause.
The general voting population is beginning to develop a more enlightened understanding of the defective mechanics of this trend to charge drug cases as homecide. When before I could turn on the news and get a sense of comfort in knowing another drug dealer was taken off the street, now with the crisis in full bloom, I have a a deeper understanding. And I also can clearly see that despite these drastic measures we are getting deeper and deeper into the hole, and losing more and more people to drug overdose deaths with each passing year. I think a lot of people are developing that heightened concious as this problem toils on.
Politicians are not ignorant to the statistical trends and the ineffectual drastic measure utilized by the criminal justice system. They are (for the most part) poignantly aware that the present approach to the drug epidemic is defective in decreasing or leveling out the ever increasing rate of drug fatalities.
Lately politicians have changed their language as they are becoming more aware that the public is also “onto” this defective approach. What we are seeing is politicians in the media, such as Attorney General Josh Shapiro, claim they are taking a “multi-faceted” approach. What this equates to is that they are not going to stop charging these cases as homecide, but they are looking into other methods to curb the statistics.
The effects of a defective criminal justice system approach to the opioid crisis is far reaching. At these rates we are incarcerating people, we cannot maintain the costs. Non-violent drug offenders account for the biggest portion of our inmate population in Pennsylvania.
Some of the more predominant statistics in opioid fatalities occur when a drug offender is released from prison. They re-enter the population “clean” off drugs, and their system is not adapted and their brain is hungry and eager for another fix. This is where we are seeing a large amount of overdoses, as the inmate re-enters society and goes nuts within the first week out in free population and overdoses the first time he/she re-uses.
A stay in prison is ineffective, and actually contributes to the overdose rate. Inmates re-enter society with after doing time for a “drug possession charge”, and the first thing they do is go out and use, likely as a coping mechanism to deal with whatever sort of trauma goes on in prison. County jails and prison do not treat underlying mental health conditions or provide inmates with physician access and success proven medical intervention of prescribed drugs to treat an individual suffering from an opioid addiction.
There are prescription alternatives available that have proven tract records of reducing or eliminating an individuals dependency on drugs like heroin. Methadone, for example, is one such drug that has been effective in permanently weaning people off heroin. More effective than any therapy or any sort of confinement and forced abstinence.
Yet for some reason, we are not allowing inmats access to these prescription interventions or medical expertise to treat the underlying condition. As a result we are also seeing a growing trending upward increase in recidivious offenders. In other words, we are cycling people through jails repeatedly and not getting any different results.
But the politics are strong. Years of ingraining jail as a solution affixed a myopically one sided approach to public attitude. There is now the battle of educating away a decade of “tough on drug dealer” campaign stump speeches, and bringing people back into the reality of the crisis we are are facing. Politicians are essentially left to combat an stagnant ideology that prison is the answer to the opioid epidemic, when that stagnant ideology is a best seller and propelled them into public office in the first place.
If prosecutors and court systems spent as much time attempting to partner, cooperate and lean on the expertise of medical doctors and the medical community as they did on prosecuting drug delivery deaths as third degree murder cases, then we would arguably be in a much better position. Unfortunately politicians are politicans and the reality of the situatiion is not necessarily what “sells” them to voters and puts them into office, so of course they are willing – most of them to the most extent – to shamelessly pander to an outdated and stagnant ideological approach, and they are willing to do that EVEN if they are fully aware of the numbers and that the “jail our way out of the opioid epidemic” is not one that has any proven record of success.
In the court’s new “multi-thronged” approach, we are now beginning to see the emergence of drug courts, as a viable alternative to jail. Prosecutors who are beginning to face public scrutiny that the “jail our way out of it” system is defective, and prosecutors who live in communities educated enough to have this heightened understanding are reacting. The new sales pitch is that drug courts provide “access to treatment,” and “second chances.”
The problem is that drug court can’t just be part of a sales pitch, real community effort and thought has to lay behind it. It’s profoundly interesting to me that if you read about drug court “panels” or “boards” most of them consist of individuals who are judges or lawyers. We are again alienating the medical community. If opioid addiction is a public health issue, then where is the medical expertise sitting on these boards. There should be a qualified board certified medical doctor on every drug court panel participating in making judicial decisions, ordering treatment and establishing treatment plans, as well as assessing progress. Judicial officers are not qualified to form medical opinions, make medical assessments or develop medical treatment plans of care.
The drug court sale pitch by politicians has been largely a reaction to the heightened public awareness that there is a gray matter area that exists between drug addiction and crime. Drug courts without the input of the medical community lack an intelligent design and are merely just sales pitches, designed to win votes. It’s the same “stagnant” and false politicking as we saw with the highly pitched idea that it was possible to jail our way out of the opioid epidemic.
What’s been most shocking to me is the stubborn resistance by the judiciary and criminal justice community to allowing the medical community to have any authority or input. There is resistance by court authorities to relinguish any small slice of their control, power or influence, and it is this precise sort of arrogance that is rendering some devastating results. There is a resistance by criminal judges and criminal prosecutors to initiatives to introduce medical doctors into the jails and prison systems. Almost 99% of the time the excuses you will get from administrators of our criminal courts is that involvement of the medical community is expensive, which is true. But jail is more expensive, and at this continued rate we will be unable to sustain affordability incarcerating this many people.
Bernie Cantorna stated that using heroin was like “playing Russian Roullette,” and seems to have some awareness that this is a problem that is more complex and outside of the scope of expertise of the legal authorities. There is science and biology involved. Addiction in a large part is physical, medical intervention and expertise is an absolute necessity to combat the fatalities.
Most disturbingly, not only is the legal community unwilling to allow the intervention of medical expertise, they are deliberately alienating the medical community by through the prosecution of prescribing physicians. There have been more doctors arrested in opioid related prescribing practices under the Shapiro administration then many years before that combined. Yet the Shapiro administration has rebuffed attempts at medical physician experts to intervene, likely unwilling to give up any small portion of power, control or authority. Despite exhaustive efforts by Governor Wolf, we have yet to see any real incorporation of the medical community or any real small authority rendered to the people (doctors) who are most qualified and most likely to be successful in handling the opioid problem.
While the criminal justice system can provide accountability to drug offenders, what they have failed at is acting as a deterrent.
Centre County recently had a case involving some confusion over who was to be charged with homicide as the agent who delivered the drugs. The case involved a decedent who bought drugs and who had a third individual inject them. Magisterial Judge Carmen Prestia even seemed very perplexed on how to apply the case law. The decision must have been a tough one for the Judge as the question ultimately became: Do I charge two people with homicide or just one? If I charge just one person, who is responsible? The person who injected the drugs or the person who sold them.
This dry sort of analytical stale application of the law failed to take into consideration the status of the two defendants in question. As were these legal drug dealers, or did they fall into that “gray matter” area where they were addicts who sold occasionally to support their own addiction. This methodology in applying outdated laws also fails to address another question: If the decedent hadn’t purchased the drugs from one of the two criminal delivery defendants in question, would that decedent/addict found and purchased the drugs elsewhere? I can, with confidence, answer that question with an affirmative yes. If addicts are willing to break into cars and homes and steal, or rob us, or commit violent acts against us to support their drug addiction, than they will be equally as resourceful in finding a source from which to buy the drugs. This is the point I am trying to really get through: The criminal justice system can act as a deterrent, but it will never be a preventative measure. Prevention comes with treatment, which can only really be provided by interference of a qualified medical doctor in many cases.
In looking at the prosecution of the two defendants in the death of Chris Hagens in Centre County, I see an excited prosecution going after “drug delivery resulting in death” third degree homicide charges, and I pause and think to myself: What’s the point? Why are we wasting the money, when all those time and resources could be better spent with more intelligent solutions, such as following the leadership of Governor Wolf or in the footsteps of Philadelphia District Attorney Larry Krasner, and attempting to really engage and work collaboratively with the medical community.
Einstein’s definition of insanity is doing the same thing over and over again and expecting a different result. While former District Attorney Parks Miller may have used tough opioid prosecutions to promote and sell herself to “win” votes, the measure was not pragmatic and in the end it really didn’t benefit the community. It only benefited her.
There is a large amount of prosecutorial discretion available for application of the drug delivery/third degree homicide charge. I would like to see Centre County begin to trend that out, and some of these resources and time and efforts be expended more practically in actual solutions.
We hired Bernie Cantorna because what we had and what we are doing was ineffective. Nobody said this job would be easy, and nobody could likely imagine how hard it is. However, the idea is not to just keep winning elections but the idea should be to institute change based on a higher, more intelligent, and longer lasting level.
Centre County, with all it’s resources and academic community, should be leading the innovation in changing the damning opioid statistics. We aren’t as hopelessly overcome by the epidemic as places like Lackwanna or Scranton or Philadelphia or Allegheny County. There is a small manageable population where we can try new approaches, engage the medical community and explore different ways to manage this crisis.
I don’t think we can eliminate opioid or heroin related deaths from occurring, but we can slow the rising statistics and ideally bring them to a plateau. I think the community is expecting a lot from the Cantorna administration, but what they aren’t expecting for and what they are not voting for is the defective Parks Miller tactics had no residual effects on slowing the alarming opioid fatality statistics. These “death by delivery” homicide charges, for the most part, are a clear waste of everyone’s time. Centre County is burnt out by door-to-door politicians and educated enough now not to buy into these big busts that people like Stacy Parks Miller or Rich Consiglio or Josh Shapiro or the usual suspects are pandering.
Time for a more intelligent Larry Krasner like approach, otherwise these numbers (at this rate) will bury us in this crisis.