FLORENCE, Ky. – Should heroin dealers do prison time for overdose deaths?
That’s the question Rep. Addia Wuchner, R-Florence, plans on posing come January. And her answer is yes.
As lawmakers gear up for the next state legislative session in Frankfort, they will resurrect a version of last session’s heroin bill that failed to pass, Senate Bill 5.
The bill will have several tentacles to combat heroin’s carnage in Kentucky, including the controversial proposal to prosecute heroin dealers whose customers overdose and die as a result of their sale of the illegal narcotic.
“All of us are deeply concerned, passionately concerned. We’re watching this ravage our community, our young people, and they are losing their lives,” Wuchner said.
“It’s my No. 1 issue. We’re not leaving Frankfort without a law this time.”
Kentucky to dealers: ‘Closed for business’
Wuchner plans to cosponsor the bill with with Rep. Joe Fischer, R-Fort Thomas. It will pick up where the bill sponsored last session by Sen. Katie Stine, R-Southgate, who was not re-elected in the May primary, left off.
“There’s no one-prong approach, it’s multifaceted,” Wuchner said.
The revamping of SB5 will include proposals for increased treatment, increased awareness, intervention, prevention and liability, and an effort to be tougher on crime, Wuchner promised.
That begins at the source, she said.
“You’re battling the dealer, and battling what the addiction does to the person who’s addicted. The dealer is the driver of addiction,” she said. “The laws in Kentucky have to be tougher than Ohio. We don’t want there to be a business opportunity for a drug dealer. We want to send a loud, clear message.”
“Prevention begins with tougher laws,” Wuchner said.
Wuchner wants the Kentucky law to look at overdose deaths as homicides and be prosecuted as such.
“Trafficking a controlled substance, you’re selling something illegal and deadly. Causing the death of another is a foreseeable result,” she said.
Wuchner, who is keeping a keen eye on New Jersey’s prosecution of heroin dealers for overdose deaths, said a stricter law would eventually curb the addiction. But a homicide proposal could again face challenges as some trial attorneys have called it unconstitutional, saying it violates due process guarantees.
Covington defense attorney Shannon Sexton also said that, while well intentioned, the law is duplicative since heroin dealers can already be charged with wanton endangerment in the case of an overdose death.
A new law criminalizing people who can already be criminally charged is a waste of money that should be spent elsewhere to combat this issue.
“War on drugs not working; need a smarter war,” Sexton said.
“I’m not soft on crime, but increasing penalties on drug offenses is only bankrupting our community. [It's] just taking people of the streets who may not be that violent,” Sexton argued. “We always default to incarceration. Our society should have some pause for incarceration for nonviolent offenders.”
What the region needs, he said, is more money going toward treatment centers.
“Use those resources to create more drug treatment facilities,” he said. “They need a chance to fix themselves.”
Overdose deaths haven’t stop climbing.
Kentucky’s Office of Drug Control Policy reported 1,007 overdose fatalities in 2013, compared to 1,004 identified in the 2012 report.
Of the 722 deaths autopsied by the Kentucky Medical Examiner last year that were determined to be from a drug overdose, 230, or 31.9 percent, were attributed to heroin, compared to 143, or 19.6 percent, in 2012.
In 2011, there were 1,023 overdose deaths in Kentucky, 3 percent of which were attributed to heroin.
N.Ky.’s heroin overdose deaths at a glance
2013 as of October- 32
Latest heroin numbers
Northern Kentucky is topping the charts for possession and heroin trafficking arrests in Commonwealth.
A five-year comparison for Northern Kentucky, according to a WCPO analysis, showed that both trafficking (to manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance) and possession (to have an actual physical possession or otherwise to exercise actual dominion or control over a tangible object), arrests had doubled since 2009; going from 210 possession arrests to 477 as of August; and from 38 trafficking arrests in 2009 to 76.
Trafficking arrests by counties with highest numbers for 2014 (as of August)-
*76 total trafficking arrests in Northern Kentucky
Possession arrests by counties with highest numbers for 2014 (as of August)-
*477 total possession arrests in Northern Kentucky
Prosecutor makes dealers pay for peddling lethal doses
Wuchner hopes to model a Kentucky law after successful prosecutions in heroin overdose deaths in New Jersey. Beginning in 2013, Ocean County, N.J. Prosecutor Joseph Coronato began prosecuting heroin dealers in the deaths of overdose victims. In his county alone, there were 112 overdose deaths as a result of heroin that year, up from 53 in 2012.
To date, Coronato has charged eight dealers. Three of those pleaded guilty and were given six- to seven-year sentences.
“We will relentlessly pursue those responsible for every overdose death in Ocean County, especially those who embellish their product with deadly additives,” Coronato said. “My office will do everything possible to help those stricken by drug addictions, but will show no such kindness to dealers ignoring the tragic consequences of their actions. At this point it should be abundantly clear to drug dealers that Ocean County is not a wise place to do business.”
In July, Coronato announced the arrest of Dahmir A. Jones, 23, of Trenton, N.J., for the drug-induced death of Brendan Novak, 18, of Stafford Township, N.J. It was his eighth arrest.
Coronato gives credit to catching dealers because of the change in how emergency personnel responds to overdose calls.
When a dispatch receives an overdose call, they are required to send a homicide detective to accompany the EMTs in order to gather evidence like packaging and needles, as well as interview witnesses fresh on the scene.
“People are emotionally charged on the scene and more apt to talk, more so than four to six weeks later,” Al Della Fave, Coronato’s spokesman, explained. It’s a more succinct method for the prosecution’s case, rather than waiting on the medical examiner to declare an overdose death and then everyone shuts up and all evidence is gone, he said.
Treating the scene like a crime scene as opposed to an accident is crucial to prosecuting heroin dealers, said U.S. Attorney Kerry B. Harvey. He's been prosecuting heroin dealers on a federal level for about three years in Kentucky. In that time, he has prosecuted six cases.
“Our opiate problem was so severe that we needed to put a special emphasis on these cases,” Harvey said about his office’s decision to crack down on dealers in his district which spans Northern Kentucky.
They have a “complete and utter disregard for the lives of the people they are preying on, so it’s entirely reasonable for me that they are held responsible,” Harvey said of heroin dealers.
The federal prosecution, however, is not a homicide statute; it’s a penalty enhancement. If a person traffics heroin in his district, he said, and a death results from the heroin sold, then the penalty for trafficking is enhanced to 20 years minimum, up to life in prison.
“We have communities throughout our district who are just being devastated by overdose deaths, in heroin in particular. Northern Kentucky is really ground zero for the carnage,” Harvey said.
“The people selling this poison are acting out of greed,” he said. “People trafficking heroin know the significant risk that [the addict] will die from the poison that they are peddling.”
Most recently Harvey prosecuted Timothy Tingle-Brown, 29, who pleaded guilty on June 23 to distributing heroin that resulted in death.
“This case exemplifies the commitment of our office and our law enforcement partners to the fight against heroin trafficking,” said Harvey. “Tingle-Brown faces at least 20 years in prison because he chose to sell heroin, a decision with deadly consequences in this case. Others who are tempted to engage in this destructive behavior should take heed of the price to be paid.”
In that case, Tingle-Brown, of Covington, admitted to selling heroin to a man at an apartment in Taylor Mill who subsequently died as a result of an overdose.
He is slated for sentencing on Sept. 30, and faces a minimum of 20 years in prison and a maximum of life. He also faces a maximum fine of $1 million.
Harvey’s office is currently investigating similar cases, but would not divulge details. He said that he does hope the minimum 20 years behind bars looming over heroin dealers will detour others from distributing in his region.
“[I’m] hopeful that dealers are sitting back and thinking, ‘Is selling a $50 bag of heroin worth 20 years in prison?’”
But it’s not enough, he admitted.
“This alone will never be sufficient to end this problem, but it is one of many tools that we need,” Harvey said. “It’s so devastating, we need to use every tool to mitigate this heroin epidemic.”
Federal prosecution is not enough, said Bill Mark, director of the Northern Kentucky Drug Strike Force.
“Most state felonies have a comparable federal statute. In this case the only remedy is through federal court,” Mark said.
That means there are fewer cases prosecuted. But a statewide law would give Kentucky leeway to prosecute more dealers, he said.
“These people know that every person they sell to could potentially die. We prosecute bartenders who over-serve patrons who drive drunk and kill someone,” Mark said.
The legislative session will open on Jan. 6. This year, the legislature will have only 30 days in session to hash out the details of a new heroin bill. Fischer said they hope to pre-file the bill by November or December.
“We need to get on the fast track as fast as we can, since it was stopped last minute in 2014.”
Heroin: The Societal Cost is a series, pinpointing and documenting what the heroin epidemic is costing the Northern Kentucky region.