Emma Semler, 24, cried in a Pennsylvania federal courtroom as she waited for the judge to hand down her sentence.
On trial for the death of her friend, 20-year-old Jenny Werstler, she told the judge, “I have extreme remorse. If I could go back and change anything, I would.”
Although Semler and Werstler had met in rehab, they often shared drugs. On May 9, 2014, Semler gave Werstler some money, and Werstler bought some heroin from a dealer she knew. Semler got the needle. The two women, along with Semler’s sister, holed up in a KFC bathroom in West Philadelphia and shot up. Soon after, Werstler went into distress. Semler and her sister collected the signs of drug use and ran out.
A KFC employee discovered Werstler, but by then it was too late. She died soon after.
In the courtroom last June, the judge noted that despite her claims of remorse, Semler had yet to apologize to her friend’s family (although if she had, it could have been seen as an admission of guilt, undercutting her defense).
But by that day, her sentence was already set, thanks to the charges brought by prosecutors and federal mandatory minimums. She turned and mouthed, “I’m sorry” to Werstler’s family, continuing to cry.
“I should be dead as well. I don’t know why I’m still here and not Jenny,” Semler said.
The judge handed down her sentence, ruling that she would spend the next 21 years in prison.
First Assistant U.S. Attorney Jennifer Williams justified the stack of charges against Semler. “This defendant acted with complete disregard for another human life, the life of a supposed friend,” she said. “The defendant continued to engage in criminal behavior and was arrested for possession of heroin again after the victim’s death. Aggressively prosecuting egregious drug crimes like this case is part of this office’s multilayered approach to confronting the opioid epidemic ravaging our neighborhoods. The sentence handed down today is in the interest of justice.”
Semler’s case is not unique. In the last few years, state and federal prosecutors have increasingly pressed murder charges against people who sell or share drugs that result in a death. Dozens of states have passed new drug-induced homicide laws or stricter ones. Other states, as well as the federal government, have had them on the books for years, but the number of prosecutions have jumped in the drive to “do something” about the opioid crisis. According to Drug Policy Alliance, a nonprofit that supports science-based drug regulation over criminalization, media mentions of drug-induced homicide prosecutions rose over 300% between 2011 and 2016. In Pennsylvania, where Semler was tried, such cases spiked from 15 in 2013 to 205 in 2017, global health organization Vital Strategies reports. “Sadly, many jurisdictions, including Pennsylvania, continue to use the criminal justice system to address what is actually a public health crisis,” National Association of Criminal Defense Lawyers President Nina Ginsberg said in a press release.
In many cases, prosecutors don’t have to show premeditation, malice or intent. They don’t have to demonstrate criminal negligence. In states with the harshest laws, all prosecutors have to prove is that a drug made it from person A to person B—and that person B died as a result. It doesn’t matter if the person overdosed because they had alcohol or other drugs in their system that they got elsewhere.
“They don’t have to prove that there was an intentionality to do this act, so there’s not much of a defense available here,” says Leo Beletsky, professor of law and health sciences at Northeastern University. “It doesn’t give you much ammunition. The balance of power is very much on the prosecutorial side.” And they’re redefining what constitutes murder.
Pennsylvania state Rep. Sara Innamorato gets why there’s a drive to punish people who sell or share drugs that result in a death.
In the mid-1990s, Innamorato’s father got into a car crash, breaking his hip. He was prescribed OxyContin. At the time, no one (except for, arguably, the pharmaceutical industry) knew that the drug posed a high risk for addiction.
His drug habit threw her family into turmoil. “Dad was the breadwinner,” she says. “We really struggled.” He spent years in and out of treatment—court-ordered rehab for poor people, fancy rehab for rich people. But he couldn’t stop using drugs. “Nothing seemed to stick with him,” she says.
One day, while he was on vacation with his second wife in Florida, he disappeared. The family had no idea where he had gone—until they got the phone call they’d been dreading for years. Police had identified the body of a middle-aged man who had overdosed on the street.
“He died alone on the sidewalk,” she says. “Without anyone. Without dignity.”
Innamorato’s dad died in 2004. In the decade-plus since, fatal opioid-related deaths have skyrocketed.
According to the Centers for Disease Control and Prevention, between 1999 and 2017, more than 702,000 people died of opioid overdoses; in the 12 month period ending in May, the CDC estimates that 67,071 people died of all drug overdoses, with opioids involved in the vast majority of fatalities. Now, lawmakers and public servants in communities ravaged by addiction—urban, suburban and rural—have begun to embrace public health policies based on the concept of harm reduction.
More first-responders carry Naloxone, a life-saving drug that almost instantly reverses a dangerous overdose if it’s administered in time. In medically assisted therapy, drugs like Methadone and Buprenorphine (aka Suboxone) curb cravings, lowering the chances of a relapse. Good Samaritan laws shield drug users from legal trouble if they call 911 to report an overdose, even if there are drugs at the scene.
“Dead people don’t recover,” Innamorato points out, neatly encapsulating the attitude behind harm reduction. Instead of shaming addicts and throwing them in jail for failing to kick their habit, the idea is to help people struggling with addiction so they can stay alive long enough to recover.
It’s a welcome break from the punitive approach that has characterized the racist war on drugs.
At the same time, police and prosecutors are literally redefining murder to punish people struggling with addiction, recasting them as evil dealers who don’t care about the lives of other addicts who overdose.
“It’s the classic scapegoat model—prosecutors needing to go out and saber-rattle and say, ‘We’re getting in front of this issue,’ ” Beletsky says. “They engage in all of these theatrics and steamroll over these people—a lot of them are literally the most vulnerable in the community—and they feed them into the mass incarceration machine.”
On their face, the laws are meant to take down drug kingpins. In practice, they’re applied to low-level street dealers (most of whom are addicts who sell to fund their habit) and cases where one user shared drugs with another.
“In many cases, it’s friends or family or loved ones,” Beletsky says.
He points out that resources allocated to prosecuting addicts and dealers and keeping them in prison for decades could be spent addressing the root problems that drive unhealthy drug use. “We’re paying for these prosecutions and prison terms at the same time that there’s no money to provide treatment or housing.”
Innamorato understands why grief might drive some families and public officials to demand vengeance.
They might see 20 years in prison—even life—as suitable punishment for engaging in drug use that led to someone else’s death. Prosecutors cite a deterrent effect, saying that making an example out of someone might make the next addict or dealer think twice before selling or giving away dangerous drugs.
The problem is, it might actually make an addict think twice about reporting an overdose, because it might put them on the hook for murder, resulting in decades—even life—in prison. In a recent case in Florida, prosecutors are seeking life without parole in a case where a woman smuggled drugs in jail and shared them with a fellow inmate who died.
And even a short stint in jail can be disastrous: People who do drugs are at their most vulnerable to fatal overdose after they’ve been to jail, because their tolerance is lower.
Innamorato doesn’t see how putting another addict in jail or in prison is going to bring her father back. She’d rather have resources go to helping people who are alive and struggling.
“What’s most important is keeping that person alive and allowing for the possibility they might recover and get better for the people who love them,” she says.
That Semler fled instead of helping her friend makes her seem villainous and selfish. But harm reduction specialists note that this aspect of the case shows exactly why these prosecutions are so misguided. Semler was not a violent kingpin, building a fortune on the misery of others. She was a young, struggling addict.
When she cried that it should have been her that died and not Werstler, she hit on another important aspect of why these types of cases can backfire. It could just as easily have been her dying on the floor, with Werstler too scared to call 911.
Devin Reaves, a specialist at the Pennsylvania Harm Reduction Coalition, is friends with Semler. “Twenty-one years. A fucking long time,” he says. “She’s going to be 56 years old by the time she gets out.”
He explains why bringing murder charges against addicts and dealers is counterproductive and inhumane.
“First of all, we really need to interrogate the social construct of why drugs are bad or good. Coffee is a drug,” he says, noting that while opioids obviously are more dangerous than coffee, focusing on a particular drug isn’t particularly helpful. “It’s not the problem. A better way to think about it is that it’s a symptom of the racist war on drugs.” (Semler is white. But many of the tropes about “dealers” vs. “victims” harken back to previous, more overtly racist drug panics.)
“Politicians say that we can’t arrest our way out of this problem; it’s just rhetoric. Drug delivery resulting in death drops even the semblance of the idea that you’re taking an anti-punitive approach.”
He hits on the most shocking fact about these prosecutions—how far they deviate from most people’s understanding of what constitutes murder.
“When most people think about murder, they assume it’s inspired by malice: ‘I meant to do something bad to somebody.’ But a lot of people who share drugs are doing the opposite. Their friend is sick and need some kind of opioid to ease withdrawal symptoms. It’s more like ‘I’m trying to hook my buddy up.’ ”
Beletsky says that it’s hard to process such cases. A drug user is grieving the loss of a friend, a spouse, a family member—and on top of that he or she is deemed a murderer by the state and packed off to prison for decades.
“It’s an absolute travesty,” he says. “It adds insult to injury to people whose friend or family member died.”
At the same time, clearance rates (a crime is solved) for violent crimes of malice such as premeditated murder and rape are statistically low. According to FBI Uniform Crime Reporting statistics, in 2017 only 61.6% of murder and non-negligent manslaughter cases were cleared by an arrest. Only 34.5% of rape cases were resolved with an arrest. And although murder rates remained more or less steady between 2016 and 2017, rape rates showed a slight increase across the board.
So it’s not surprising that law enforcement personnel are drawn to cracking down on drug-induced homicide cases. They get to feel like they’re eradicating the scourge of opioid addiction and solving a murder. These cases are extremely easy to win. Often, all it takes is for the state to have a text or two between the person who lived and the person who died, proving they’d plotted to get and do drugs.
In November, Vital Strategies organized a conference of defense attorneys in Harrisburg, Pa. During a presentation, Beletsky asked the roomful of lawyers how many of their clients had been prosecuted based primarily on texts.
Almost all of them raised their hands.
“It’s surprised me, honestly, that people would be so reckless with texting,” he says.
And cops are exploiting a legal loophole. When they get to the scene of the crime, they might immediately take the deceased person’s cellphone. Technically, they shouldn’t. The dead person no longer legally owns anything, so the police should either get a warrant or obtain permission from the next of kin or arbiter of estate.
But how many people know—or remember—that? Especially when they’re grieving a loved one who just died?
A recent court case further eroded reasonable expectations of privacy.
On June 22, 2018, the Sixth Circuit Court of Appeals ruled that a defendant had no reasonable right to expect “privacy in the location information collected by the FBI because he had shared that information with his wireless carriers.”
Beletsy is not optimistic. There are very few legal strategies for defense attorneys to use to counter drug-induced homicide cases.
“All these defense lawyers are basically getting steamrolled by prosecutors, and people are going away for long sentences. As a lawyer, there’s not much you can do. And in many places, they’re trying to expand these laws,” he notes. “Like in Pennsylvania, every session there’s an effort to make laws even more draconian.”Print