Frosh: Charge deal­ers in ODs

At­tor­ney gen­eral wants more man­slaugh­ter cases for drug fa­tal­i­ties

Baltimore Sun Sunday - - FRONT PAGE - By Phil Davis

Mary­land’s top lawyer says lo­cal pros­e­cu­tors should con­sider man­slaugh­ter charges for more deal­ers and sup­pli­ers whose drugs cause fatal overdoses after the state’s high­est court has swept away le­gal doubts.

At­tor­ney Gen­eral Brian Frosh said he be­lieves some deal­ers who sell par­tic­u­larly deadly drugs should face charges if some­one dies from an over­dose.

“The dis­tri­bu­tion of dan­ger­ous drugs like heroin runs a risk of killing peo­ple,” Frosh said in an in­ter­view with The Baltimore Sun. While he would not rec­om­mend homi­cide charges in ev­ery fatal over­dose case, he said pros­e­cu­tion is war­ranted when some­one sup­plies drugs “in a way that’s grossly neg­li­gent.”

Nearly 1,900 peo­ple died from fen­tanyl in Mary­land last year. The pow­er­ful syn­thetic opi­oid is of­ten mixed with heroin to give users a stronger high but also eas­ily causes overdoses.

While Frosh sees charg­ing deal­ers as a de­ter­rent, other states that, like Mary­land, al­low man­slaugh­ter and other homi­cide charges in such cases have failed to stem the ris­ing num­ber of over­dose deaths. And some ar­gue the le­gal tac­tic could make overdoses more likely.

“It’s a real prob­lem be­cause it won’t de­ter

drug deal­ing,” said Brian Sac­centi, head of the ap­pel­late di­vi­sion of Mary­land’s Pub­lic De­fender’s Of­fice. “But the big­ger con­cern is that it will de­ter peo­ple from call­ing 911 to re­port a po­ten­tial over­dose be­cause you threaten peo­ple with decades in prison if they hap­pen to be caught there.”

The de­bate comes after Mary­land’s Court of Ap­peals ruled 4-3 in June that a Worces­ter County man was rightly con­victed of man­slaugh­ter in con­nec­tion with an­other man’s heroin over­dose death in 2015. The court over­turned a lower court rul­ing that had in­val­i­dated the con­vic­tion.

The opin­ion could en­cour­age sim­i­lar prose­cu­tions through­out Mary­land, as at­tor­neys from across the state say it es­tab­lishes a more con­crete stan­dard for such cases.

Over the past two years, Mary­land pros­e­cu­tors have brought as­sorted homi­cide charges against al­leged drug deal­ers — rang­ing from man­slaugh­ter to sec­ond­de­gree de­praved heart mur­der. Po­ten­tial sen­tences range from 10 to 40 years un­der Mary­land law.

Fed­eral pros­e­cu­tors have also charged al­leged drug deal­ers with homi­cide, as U.S. law al­lows them to charge deal­ers with drug dis­tri­bu­tion “in re­la­tion to death.”

Au­thor­i­ties charged Narada Walls, 39, of Sal­is­bury, with the fed­eral of­fense in Oc­to­ber after pros­e­cu­tors say his girl­friend, Stacy Lynn Figgs, died from a fen­tanyl over­dose while clean­ing a blender in Walls’ kitchen that con­tained traces of the drug.

In 2017, Gov. Larry Ho­gan praised St. Mary’s County State’s At­tor­ney Richard Fritz for bring­ing sec­ond-de­gree mur­der charges against eight al­leged drug deal­ers. At the time, the Repub­li­can gov­er­nor called it “the level of tough pros­e­cu­tion that we need in or­der to turn the tide in this deadly fight.”

But in June 2018, Mary­land’s sec­ond­high­est court, the Court of Spe­cial Ap­peals, ruled that Pa­trick Joseph Thomas, 57, of Berlin, was im­prop­erly con­victed in Worces­ter County in the over­dose death of Colton Lee Mal­trey.

After that rul­ing, St. Mary’s County pros­e­cu­tors started to see sim­i­lar cases be­ing af­fected as de­fense at­tor­neys and judges be­gan to cite the Thomas case.

“They were pro­hibit­ing us from pros­e­cut­ing re­ally big cases,” said Jaymi Ster­ling, a se­nior as­sis­tant state’s at­tor­ney in St. Mary’s County.

Cit­ing the rul­ing, a judge ac­quit­ted one of the eight charged in the county, Mark Steven Gar­ner, of in­vol­un­tary man­slaugh­ter in 2018. Pros­e­cu­tors said he sold a fatal dose of heroin to a 31-year-old woman in 2016, but the judge deter­mined the Court of Spe­cial Ap­peals opin­ion dic­tated he be found not guilty.

As a re­sult, Fritz and Ster­ling helped the At­tor­ney Gen­eral’s Of­fice build its ap­peal to Mary­land’s high­est court, the Court of Ap­peals.

Frosh said the June rul­ing by that court clears “a cloudy is­sue” and al­lows “state’s at­tor­neys to en­force what we be­lieve the law to be.”

“The rule ought to be what the Court of Ap­peals [found] ... that there are some cir­cum­stances that some­one can be charged with man­slaugh­ter,” Frosh said.

A 2017 Baltimore Sun re­view found pros­e­cu­tors in fewer than a third of Mary­land’s coun­ties had charged drug sup­pli­ers with homi­cide, and pros­e­cu­tors said the cases were dif­fi­cult to prove.

Yet the tac­tic of charg­ing deal­ers and other providers has drawn crit­i­cism from some groups that point to years of sim­i­lar tac­tics in other states even as the coun­try’s drug over­dose rate con­tin­ued to climb.

The Drug Pol­icy Al­liance found in a 2017 re­port that 20 states have drug-in­duced homi­cide laws. Some states — in­clud­ing Wis­con­sin, Min­nesota, Ohio and Illi­nois — have pros­e­cuted hun­dreds of such cases from 2011 to 2016.

In Wis­con­sin, which pros­e­cuted 882 such cases from 2011 to 2016, the num­ber of fatal drug overdoses dou­bled from 2011 to 2017. The state’s growth in overdoses out­paced the na­tional in­crease of 75% dur­ing that pe­riod re­ported by the Na­tional In­sti­tute on Drug Abuse.

Crit­ics com­pare the prose­cu­tions to failed poli­cies born out of the “War on Drugs” era of the 1980s and 1990s, which saw prison pop­u­la­tions sky­rocket as a re­sult of min­i­mum manda­tory sen­tences for drug deal­ers.

“Drug-in­duced homi­cide laws, then, might ful­fill an in­stinct for ret­ri­bu­tion and of­fer a pur­ported solution to the in­creas­ing rates of over­dose, but they do noth­ing to re­duce de­mand or de­ter selling,” ac­cord­ing to the Drug Pol­icy Al­liance’s re­port.

“Ac­cord­ingly, fu­ture deadly drug overdoses will not be pre­vented,” it con­tin­ued.

Sac­centi echoed the group’s points, adding that such prose­cu­tions could in­hibit the state’s push to get more peo­ple into treat­ment.

While pros­e­cu­tors could tar­get high­level drug deal­ers, Sac­centi said, they also could charge street deal­ers and peo­ple who are ad­dicted them­selves who sell or give some of a drug to some­one who then dies of an over­dose.

“What do we want when peo­ple are over­dos­ing?” he said. “Try­ing to solve the opi­oid cri­sis with crim­i­nal penal­ties ac­tu­ally gets in the way of med­i­cal treat­ment.”

While some county and mu­nic­i­pal jails of­fer med­i­cally-as­sisted treat­ment to those who are in­car­cer­ated, a bill that would have re­quired state prisons to fol­low suit was halted in the Gen­eral Assem­bly this year after correction­s of­fi­cials ex­pressed con­cerns over cost.

In Anne Arun­del County, then-State’s At­tor­ney Wes Adams be­gan pros­e­cut­ing deal­ers in 2017, in­clud­ing Gabrielle DelValle, who sold a fatal dose of fen­tanyl to Christo­pher King that year. DelValle was charged with in­vol­un­tary man­slaugh­ter.

At the time, DelValle’s at­tor­ney, Caitlin O’Don­nell, said DelValle didn’t know he was selling King fen­tanyl and that DelValle was him­self ad­dicted to heroin and did some of the drugs him­self.

“It’s im­por­tant for peo­ple to know ... the state presents these peo­ple who sell drugs or give drugs to their friends as a mono­lithic pop­u­la­tion of peo­ple out there not car­ing about what hap­pens to their friends,” she said at the time. “He in­gested from ex­actly the same sub­stance.”

Cit­ing the lower ap­peals court’s rul­ing, an Anne Arun­del County cir­cuit judge ruled last year that DelValle could not be con­victed of the man­slaugh­ter charge.

Adams’ Demo­cratic suc­ces­sor, Anne Arun­del County State’s At­tor­ney Anne Colt Leitess, said she sees homi­cide charges as ap­pro­pri­ate in some cases. “We have to prove that the facts sup­port a dis­re­gard for hu­man life,” she said.

For ex­am­ple, Colt Leitess con­tin­ues to pros­e­cute Ja­son Pat­ton Baker, who was charged by Adams with drug dis­tri­bu­tion and man­slaugh­ter in the death of Josiah Christo­pher Klaes, a 16-year-old Glen Burnie res­i­dent who is the county’s youngest fatal over­dose vic­tim since po­lice started keep­ing records in 2014. Baker’s trial is scheduled for Novem­ber.

Frosh, mean­while, pushed back on the no­tion that pros­e­cut­ing sup­pli­ers mir­rors failed poli­cies of the past. “It’s not a manda­tory min­i­mum or au­to­matic charge,” he said.

But he said given the state’s dire sit­u­a­tion, it’s a tac­tic he wants to see em­ployed as a mea­sure of re­tribu­tive pun­ish­ment.

“We’ve had cases where you have a very dan­ger­ous drug on the street and peo­ple are over­dos­ing like crazy,” Frosh said. “When that per­son keeps selling the drug, it seems ap­pro­pri­ate to hold them ac­count­able.”

ALEX MANN/BSMG 2018

Anne Arun­del County State’s At­tor­ney Ann Colt Leitess takes re­porters’ ques­tions.

Thomas

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