Opioid Death Investigations
The image of heroin overdose no longer evokes the portrait of wasted junkies with track marks in their arms and lives of addiction told in their empty eyes and sunken faces.
Today it is a tiny toddler in pink princess footed pajamas, crying out as her mother lay motionless in the floor of a Family Dollar store. Barely old enough to form the words, she shakes her mother, picking up her hand and pulling her as she screams, ‘Mommy, get up!” between her tears.
It is the widely-circulated image of a small child still buckled into his car seat while both his parents lay unconscious in the front seats of their vehicle on the side of a busy road. In Kentucky, it’s a high school cheerleader lying in her dealer’s bedroom, still wearing her school t-shirt, her head lying in her own vomit and the breath gone from her lips.
Stories of record-breaking levels of heroin overdoses have become a routine part of Kentucky’s news reports recently. Along with them have come the wake of survivors left to pick up the pieces. It is because of those survivors that Kerry Harvey, U.S. Attorney for the Eastern District of Kentucky, says drug trafficking is not a victimless crime. Using federal law 21 U.S.C. § 841(a)(1), Harvey’s office has devised a strategy, working together with first responders, to bring justice to these survivors.
The law has been on the books for decades, but as the number of overdose deaths continued to climb, Harvey and his team gave it a fresh look to determine if its applicability could ultimately lead to saving lives.
“We have prosecuted overdose cases for some time,” Harvey said. “In the past year and a half to two years as the opioid crisis worsened, heroin and fentanyl hit the streets in significant quantities and the number of overdoses skyrocketed, we decided to undertake a focused initiative to pursue these overdose cases under federal law.”
Enacted in 1970, 21 U.S.C. § 841(a)(1) gives federal prosecutors the advantage of severe penalties for anyone convicted of causing the death or serious bodily harm of a person to whom they sold heroin, fentanyl, carfentanil and other potentially-lethal drugs. A person convicted of trafficking under this law can be sentenced to no less than 10 years in federal prison with the possibility of a life sentence. However, if the victim dies as a result of the drugs they received, or if they were on the brink of death but revived with Narcan, the sentence is increased to a mandatory 20-year to life sentence.
After two or more prior felony drug convictions, a federal judge can impose a mandatory life sentence.
“We think it is important to prosecute these cases for a number of reasons,” Harvey said. “One is the significance of the sentences and the certainty of severe punishment. We hope that has a deterrent effect. Second, there is a tremendous incentive for the defendants facing these charges to cooperate with the authorities. Our goal is always to prosecute as high up the drug distribution chain as possible.“Thirdly, trafficking in these substances, particularly now with heroin and carfentanil, it is not a victimless crime,” Harvey continued. “Anybody who believes trafficking is a victimless crime should come to one of our USA HEAT (U.S. Attorney's Heroin Education Action Team) meetings with a group of parents, brothers, sisters and children who have lost someone they love to an overdose death. You will find out very quickly that these sentences are appropriate in cases where the conduct is particularly aggravated, and these victims are entitled to justice.”
For law enforcement, pursuing an overdose death under this law requires a mental shift. As Versailles Police Detective Keith Ford noted, many times law enforcement historically has not been called to the scene of an overdose death. If they were called, often it was not for the purpose of an investigation unless there was obvious evidence that led first responders to get police involved.
“Overdoses typically were just a medical run,” Ford said. “The police were called if EMS workers discovered some sense of a crime with the death, but that was very rare. Because by the time EMS got there, the people around the victim usually would have cleaned up the evidence. So it just wasn’t a police matter.”
Overdose in Versailles
About 1 p.m. on a July afternoon in Versailles, a woman overdosed at a local business near the sheriff’s office.
“It was a block away from the sheriff’s office, so a deputy went over because it was across the street, but the police were not called,” Ford said. “We were not summoned to the scene at all and we wouldn’t have been. But the sheriff’s deputy called our sergeant at the time and said, ‘Look, we have her, she’s being taken to the hospital, we have some stuff here.’ It was a syringe, spoon, phone, that kind of thing. We were simply there as a police department to collect drug paraphernalia. There was no thought other than somebody had died as an overdose victim — though it was very tragic, we didn’t have any tools available to prosecute in this way with state laws.”
However, just a few hours earlier, Ford had listened to Harvey explain his new initiative to a group of law enforcement encouraging them to treat each overdose scene as a crime scene.
“So when the sergeant came back with the items he collected, I said, ‘I just went to a meeting about this,’” Ford said. “‘Let me call Todd Bradbury,’ the assistant U.S. attorney who was leading the charge from this office at the time. I asked him what he thought, and he said it was exactly what they were trying to do.”
The victim was being transported to the funeral home when Ford intercepted and sent her body for an autopsy. After reviewing her phone, Ford said some of the message windows were still available on the phone even with it locked that identified a local drug dealer the officers knew well as the person on the other end of the conversations. Their interest was piqued and with the help of the Kentucky State Police e-crimes, the officers were able to retrieve the rest of the text messages, which unfolded the whole story, he said.
“We emphasize in all our trainings that quantum shift between accident and crime scene,” said Jason Parman, assistant U.S. Attorney in the Eastern District of Kentucky. “This is a good example — the heroin at the scene, needles, spoons, phones — those are the fundamental building blocks to build a case.”
It’s Not a Murder Case
While pursuing prosecution of someone who caused the death of another typically is considered a homicide investigation, it is important to note that applying this federal law does not equate to a state level murder charge. As such, the investigations also do not reach the depth of murder investigations.
Versailles Police Detective Steve Sparkman has worked together with Ford to establish a protocol among all the first responders in their community from EMS and the local coroner to their own co-workers and other local law enforcement. He encourages his fellow officers faced with an overdose investigation to make that leap from accident to crime scene and then just start with the basics.
“When you go into a scene, look for signs of paraphernalia and drugs, obviously, what the victim was dealing with,” Sparkman said. “If EMS are there, is the victim alive or dead? Was Narcan administered? It is really a simple, basic investigation. It is not as complex as people might think.”
Before taking on these overdose investigations, Sparkman said he was not very familiar with working in the federal system, but Harvey’s team has helped make the transition an easy one.
“Some officers may be misled thinking that it’s a federal initiative, so this could get extreme,” Sparkman said. “I think that’s the misconception of a lot of officers — including myself at one time. I hadn’t dealt much with federal agencies, especially on a death investigation. But Mr. Harvey has done a great job of telling us, ‘This is what we can do,’ and working with us to make it very simple. It really is very simple compared to some other investigations.”
“People often think this requires a great amount of time and is a resource drain on law enforcement agencies, specifically smaller agencies,” he said. “Basically this is a normal drug case with an extra element. If you treat the overdose like a crime scene, that is the very first step of the process — taking evidence — that’s what we need to make the case. Document your scene, take evidence, let us know what you have.”
One of the key pieces of making these cases work is garnering cooperation from all parties involved. In Versailles, Ford and Sparkman established a protocol that now has seen them through several successful cases. The detectives also have communicated with neighboring jurisdictions to help them understand the initiative and be able to work together.
“We work with EMS every time we have a medical run to an overdose, we have at least one officer going with emergency services to assess the situation and determine whether or not it will qualify under this initiative,” Ford said. “We had local training to discuss what we are looking for and how we get this done. We had EMS present and the coroner’s office present so we could all get on the same page and know what we were doing as far as custody of phones, paraphernalia and interviewing witnesses.”
Establishing that protocol is necessary because following the guidelines of this initiative is not traditionally how first responders have handled overdose deaths. Requesting an autopsy on an overdose victim, for example, is necessary to identify if it was the drugs they purchased from the suspect that caused their deaths.
“You need buy in from the medical examiner,” Ford said. “The victim might have a cocktail of drugs in their system. The toxicologist can determine if the level of fentanyl in their system was the cause of death.”
Harvey’s office urges cooperation and communication in their trainings. Parman agreed that getting everyone on the same page can make the difference in being able to prosecute the case or not.
“Many times without that buy in from local first responders, these cases are viewed as an accident, the victim is taken to the funeral home and we lose some valuable evidence in the process,” Parman said. “If somebody overdosed in the past, they didn’t get sent to the medical examiner. They went straight to the funeral home.”
Harvey said his office already has conducted trainings in northern Kentucky, Lexington and Louisville, as well as speaking to the Kentucky Coroners Association, and they will offer training to anyone interested in partnering on these cases.
“The first thing we did essentially was invite not only our law enforcement folks, but also our mayors, county judge-executives and community leaders in for an informational meeting,” Harvey said. “We explained the federal law, and how we’re going to try to use it in the middle of this horrible epidemic. We are all struggling to find a response that will help, and we thought this was something we can do — but we can only do this with very strong partnerships with our state and local authorities.”
Under this law, the life of the overdose victim does not have to be lost for the trafficker to be prosecuted. Anyone who sells or distributes these drugs that leads to serious bodily injury also is subject to punishment for their involvement. The first case Parman ever prosecuted under this law was a survivor case, he said. The question then turns to whether or not the drug contributed to a substantial risk of death.
“If you literally have somebody in the process of overdosing, and what brought them out of that was designed exclusively to counteract the effect of an opiate, there is not a problem finding an expert who will say the victim was at a substantial risk of death, if not but for the Narcan,” Parman said.
“Then you have a live witness at that point,” Parman continued. “If anybody is ever in the mood to be cooperative, it is somebody whose life you just saved. Many times they are willing to say, ‘I need help. This is where I got my drugs.’ We are not out to throw addicts in prison for using or abusing. That’s not our point. We want to try to keep them from becoming a death statistic. What we try to do is partner with them to remove the traffickers who are creating this epidemic.”
Because Narcan saves, Ford said having a tangible victim makes moving forward with these cases even easier. Sometimes they experience some resistance, but as Parman noted, most will offer a statement after their lives have been saved.
“These survivor cases really have a lot of potential,” Harvey said. “We have more survivors because of Narcan, and it does eliminate some difficulty of the proof issue and getting autopsies. We know that’s a tremendous burden for a medical examiner.
Utter Disregard for Human Life
Some critics have been quick to question the idea of applying such strict penalties to offenders when the victims voluntarily consume the drugs. But Harvey vehemently disagrees.
“You have to start with the proposition that it is the law,” he said. “What we do is enforce the law. Sometimes that means you set aside your subjective views of it because it is the law. I certainly think in appropriate cases, these charges and penalties are very important. If you have a professional drug trafficker selling heroin and fentanyl, do you really believe that person doesn’t understand that what they are selling is likely to kill somebody?
“We don’t apply these penalties just by reflex,” Harvey continued. “We choose appropriate cases. Many of these cases see aggravated behavior. I am aware of cases where defendants have traded heroin for sex to young females. We prosecuted a case where the defendant sold a mixture to a woman who was obviously pregnant. I could go home and sleep good at night after I prosecuted that case. These cases where defendants are bringing in counterfeit pain pills by the thousands that turn out to be fentanyl or who knows what else and people are dying. Those are the kinds of cases where we see complete and utter disregard for human life.”