‘I’m not calling 911:’ Should drug overdose deaths be treated as felony murder?

The best way Jordan Siebert knows to describe it is simple: chaos.

The 39-year-old Richmond woman has battled drug use on-and-off since she was an adolescent and she’s seen overdoses. She’s seen strangers carry an unconscious woman from a room. She’s been the subject of those emergency calls for help.

“There’s such panic and chaos,” Siebert said. “You’re not actually thinking, other than this very — how do I explain this — it’s very instinctual. It’s ‘Oh my God, that could’ve been me. We’re shooting out of the same bag. Why did this person go out, and I didn’t go out?’ It’s awful.”

Siebert’s drug of choice was heroin, one of several opioids that have caused the fatal drug overdose rate to surge in Virginia. And a potential new law that is sitting on Gov. Ralph Northam’s desk awaiting his signature, she said, will do nothing to help people in the throes of addiction — but she does think it will deter them from calling emergency services for help.

The bill, sponsored by Del. Tim Hugo, R-Fairfax, states that a person is guilty of felony homicide if they manufactured, sell, gift or distribute drugs that cause a fatal overdose.

On one side, law enforcement officials argue they need the legislation to go after dealers and suppliers who are putting dangerous drugs on the streets after a 2013 appeals court decision impeded their ability to do so.

But groups like the ACLU of Virginia and the Substance Abuse and Addiction Recovery Alliance, or SAARA, argue that the legislation continues to treat the disease of addiction as a crime, and would allow prosecutors to press charges against friends and fellow users rather than big-time dealers.

Several states have grappled with the question of whether fatal overdoses should be treated as homicide cases, particularly as fentanyl — an incredibly deadly synthetic opioid — has become more prevalent. According to the Drug Policy Alliance, which argues that drug-induced homicide laws are misguided, 20 states have such laws on the books.

The appeals court decision

A 2013 appeals court decision in a case called Woodard vs. The Commonwealth of Virginia set a new standard for felony homicide, requiring not only a causal connection between the felony and the death, but that it also has to occur at the same time and place as the underlying felony.

Before that case, prosecutors would handle drug overdose deaths as felony murder because the distribution of drugs is a felony, explained Mike Doucette, executive director of the Virginia Association of Commonwealth’s Attorneys. But the Woodard case changed things.

“Contrary to what usually happens in a drug deal, you now have to show the transaction took place, that the user used the drugs basically in the same time and same place as the distribution and died on the spot,” Doucette said. “Well, that almost never happens.”

Most often, a dealer will sell drugs and the buyer will go around the corner, to their car or go home to use them, he explained.

The General Assembly has tried to pass legislation to address the Woodard decision over the past several years, to no avail until this year.

The legislation includes a clause dictating a less severe punishment when the substance was given “as an accommodation” to an individual without the intent to profit. In those cases, the crime is punishable by one to 10 years in prison, compared to the five to 40 years that a felony murder charge carries.

Northam took a stab at changing the bill that limited the felony act to sale or manufacturing of drugs, and added an affirmative defense if the seller helped the individual overdosing.

But the House rejected his recommendation on a 51-47 vote.

“I stood with the commonwealth’s attorneys and opposed the amendment because the time has come to say enough is enough,” Hugo said in an emailed statement. “This is about standing with opioid victims and their families and saying if you give somebody drugs and they die, you are going to be prosecuted for felony homicide.”

In a statement, a spokeswoman for Northam’s office, Alena Yarmosky, said “the bill would criminalize individuals who are struggling with addiction instead of providing them with the necessary treatment,” adding that the governor “was concerned that the overly-broad language of the legislation could discourage people from seeking medical help for a friend or family member in need.”

Now, the legislation sits in limbo on Northam’s desk. He has until midnight on May 3 to act. Yarmosky did not say if the governor intends to veto the bill.

Going after suppliers

As a former commonwealth’s attorney himself, Doucette said he’s seen the understanding of drug use and addiction change within law enforcement over the past 35 years.

“When I started, I thought, ‘these people should just quit,'” he said. “It took me a long time as a prosecutor to understand it’s not a moral failing on these peoples’ parts.”

Prosecutors want to go after those putting the drugs on the streets, he said, but the Woodard decision has created problems for commonwealth’s attorneys all over the state.

“Every single drug overdose death is going to be a potential case,” he said, but right now, law enforcement officers are treating those cases as accidental death scenes. If Northam signs the legislation, they’ll have to change their mindset, he said, and treat them as crime scenes.

During a Senate Committee for Courts of Justice hearing in February, Matthew Lowry, assistant commonwealth’s attorney in Prince William County, said his office runs into problems prosecuting drug dealers all the time.

“There is a gap in the law where we cannot go after the superior drug dealers for the deaths they’re causing,” he told the committee. “I don’t think it’s a mystery to anybody on this committee that when we talk about drug dealers, we’re talking about people who peddle poison for profit.”

He was joined by the Chazen family, who spoke of the death of their daughter, Amanda Chazen of Manassas. She developed an addiction to opioids after she suffered an injury as an EMT and died of an overdose last year.

Chazen’s mother, Mary Ellen Chazen, told the committee that she knows her daughter wasn’t completely innocent, but that there should be a stiffer penalty when a death occurs.

That’s what Doucette said the Association of Commonwealth’s Attorneys is hoping for, too.

“In our opinion, there does need to be some accountability because someone has, in fact, died,” he said.

Punishing an illness

Groups against the legislation argue that it punishes people who have the disease of addiction. Kathy Harkey, executive director of the Substance Abuse and Addiction Recovery Alliance, said the word “gift” used in the legislation can just mean “handing it to your buddy next to you.

“If a person is manufacturing drugs and they’re distributing them for money and they sell somebody a drug that kills, then in my opinion that is a true drug dealer: They should know what they’re putting out there on the street and if somebody dies as a result of their negligence then they certainly do need to go to jail,” she said.

But it’s different in cases when someone is giving drugs to a friend or just passing them along. Charging people in those cases with felony homicide is punishing them for their sickness, she said, because they’re not intending to kill anyone.

The ACLU of Virginia is against the legislation in all forms, said spokesman Bill Farrar, who said it reverts back to tactics from the war on drugs, “that have been proven over and over to be wrong-headed and designed for failure.”

In an op-ed in the Roanoke Times, Claire Guthrie Gastañaga, executive director of the ACLU of Virginia, argued that the legislation will not solve the drug problem.

“Expanding the law to allow someone to be charged with murder for selling a drug to another adult who takes it voluntarily and dies or prosecuting as felons friends who gave a drug to a friend who takes it and dies will not end overdoses,” she wrote.

Siebert has been through addiction. She’s seen those she loves go through it, too. And the legislation, she said, would punish people with an illness.

“It would be really difficult for you to find any addict, especially a heroin addict, who has never given someone else drugs,” she said. “This affects someone who has an addiction.”

People with active addictions are always looking for a way to get an opiate in some form, she argued. That means relying on friends to buy or give them drugs — and at times it means selling and providing drugs to friends, too.

“And a lot of times, that means I’m going to be sharing what I have because I need more money to get some later, or vice versa,” she said.

Siebert has been in recovery for over three years now. As a peer counselor, she helps others who are transitioning into recovery. But she still remembers what it’s like to be in the grips of addiction, and worries about the impact the legislation will have if it becomes law.

“I think what you’re going to see because of this is going to be a higher rate of death because people are not going to call,” she said. “If I am in the midst of my addiction, you’re not thinking clearly and your entire existence hinges on getting your fix. I’m not going to be able to do that very well in jail — it’s difficult and more expensive. I’m not calling 911, and that person is absolutely going to die.”