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Who’s to blame when someone dies after ingesting a fatal dose of illegal drugs?

It’s a bleak question that thousands of grieving families are cursed to live with each year, and one that state and federal authorities wrestle with at alarming levels.

In a decade when fentanyl-laced opioids have killed nearly a half-million people nationwide, the answer, more and more, has been criminally prosecuting dealers who sell the drugs behind overdose deaths.

Prosecuting attorneys across the country filed murder charges in 29 so-called drug-induced homicide cases in 2007. By 2017, that number mushroomed to more than 700, according to a data study by the Northeastern University School of Law’s Center for Health Policy and Law.

Here in East Baton Rouge, such cases result in fewer than a handful of murder indictments a year. District Attorney Hillar Moore said the degree of difficulty is often higher than it is in traditional homicide prosecutions.

“They’re just unusual. We might have one or two a year and that’s because the cases are extremely hard to prove as to exactly what caused that person’s death,” he said. “You have to show that that is the drug and it’s the direct cause of death.”

While the cases are relatively rare, they come with severe consequences. Malcolm Hall III, a 29-year-old Baton Rouge man, was indicted on second-degree murder and obstruction of justice last month in the fentanyl overdose of a 41-year-old woman who died in her Baton Rouge apartment last September.

According to arrest reports, the victim’s father called East Baton Rouge homicide detectives in November after he found her old cell phone while removing property from her apartment. The father said he recovered text messages and phone call logs that linked Hall to her overdose. Sheriff’s deputies later determined the father was right and used it as evidence that Hall sold the woman Xanax and Percocet pills over several months, including the day before she was found dead Sept. 6.

When questioned in January, after deputies raided his house and seized a “large quantity” of fentanyl and prescription medications, Hall admitted he sold the woman blue and white pills on Sept. 5, then returned to her residence the following day and found her unresponsive in her bathroom, arrest records state. He told detectives he took the woman’s phone and threw it in a dumpster to keep law enforcement from learning about their history of drug transactions, deputies indicate.

Hall now faces a mandatory life sentence if he’s convicted of murder. Critics of drug-induced homicide prosecutions argue that’s too harsh a penalty for low-level drug dealers, friends and fellow users indicted for selling or sharing drugs.

Baton Rouge advocate Linda Franks, executive director of the Fair Fight Initiative, called for reforms to address poverty and substance abuse issues that are at the root of addiction and drug trafficking.

“When I see things like trying to increase the penalty or charge drug dealers with murder, what I think is anytime there’s an outcry in the criminal justice system from White and suburban people, we’re always looking for the punitive reaction,” she said. “It’s always let’s just tack on more prison time, or more charges. And we’re never going to solve the problem doing that. I think it’s been shown historically that we cannot prosecute our way out of crime, across the board.”

Laws used to charge drug dealers with murder were first introduced in the midst of another watershed period in America’s rampant drug war. Striving to rein in the devastation of the crack cocaine epidemic, Louisiana legislators expanded the state’s murder statutes in 1987 to include criminal liability if the distribution or dispensing of a controlled substance is shown to have been the direct cause of a death. It was a drug enhancement that prosecutors used sparingly before the opioid crisis, but such cases weren’t unheard of in East Baton Rouge.

In 2002, Randall Corbett and his girlfriend Heather Smith became the parish’s first two people indicted on second-degree murder from an overdose in the 2001 death of Marsha Fisher. Authorities alleged Corbett gave Smith the money to buy the MDMA ecstasy tablets that she shared with Fisher, her best friend. Smith got 10 years after pleading guilty to manslaughter and possession with intent to distribute in 2005, court records show. Eight months later, a jury found Corbett guilty of negligent homicide by a 10-2 vote and he was sentenced to five years in prison.

Fighting a rising tide

The rise in the United States’ rate of overdose deaths has been drastic over the past eight years with an annual body count that’s steadily increased, more than doubling since 2015, according to U.S. Centers for Disease Prevention and Control statistics. Public health officials attribute much of that uptick to fentanyl-laced synthetic opioids, which have been blamed for more than 400,000 deaths since 2013.

Experts say the opioid crisis came in three waves, initiated by profit-hungry pharmaceutical manufacturers that misled consumers by marketing highly addictive pills like OxyContin as a cure all for pain. What followed were years of opioids being over-prescribed and relatively uncontrolled. After regulators reined in the flood of prescriptions and law enforcement began cracking down on so-called pill mills, a new trend kicked in when opioid-addicted patients turned to street heroin. The most recent break in the wave is the advent of synthetic opioids laced with potent chemicals like fentanyl, which have proven to be highly lethal.

Anne Milgram, the DEA’s head administrator, described fentanyl as the “single deadliest drug threat our nation has ever encountered.”

Moore, East Baton Rouge’s lead prosecutor, said he’s bracing for the arrival of medetomidine, a synthetic drug used by veterinarians as an animal tranquilizer, that Mexican cartels and U.S. trafficking crews have begun mixing into counterfeit pills and powders sold on the street. The sedative slows the human heart and has caused of mass overdoses in major cities like Chicago, Philadelphia and Pittsburgh.

“We haven’t seen it here yet. Generally, it’ll take a year or two for things to hit Baton Rouge, but I assume it will come,” he said.

EBR’s overdose deaths hit a record high in 2021 when they eclipsed 300. Moore said there’s been about a 30 percent reduction in fatal overdoses through the first five months of 2024 compared against the same period last year, when the parish saw 289 deaths from drugs for entire year.

Moore said his office must be selective when choosing which cases. The prosecutors track a culprit’s history to see if they have a history of selling drugs, or if the government can establish the accused as the main supplier to the person who overdosed. As revealed in Malcolm Hall’s case, conversations and text messages on cell phones are key pieces of evidence to help prove a set of circumstances that could convince a jury to convict unanimously. The medical examiner’s death investigation is also a crucial piece of the puzzle.

“It has to be beyond a reasonable doubt and it does offer some unique issues that we have to deal with because of the cause of death,” Moore explained. “Like with a gunshot wound, there’s no doubt usually that you shot them and they died from it. This kind of case isn’t as clear. How many other drugs did they take, who’d they get them from, and what did the drugs have in them?”

Drug-induced homicide statutes spread nationally during the opioid crisis. More than 30 states have now empowered their prosecutorial agencies to pursue criminal charges in accidental overdose deaths.

In 2015, Jarret McCasland was convicted of second-degree murder for giving his 19-year-old girlfriend Flavia “Cathy” Cardenas heroin that she overdosed and died from in 2013. When the Denham Springs man was sentenced to a mandatory life sentence in 2021, his father, Douglas McCasland, called it “a sad day for the Louisiana judicial system.”

While proponents of drug-induced homicide prosecutions say pursuing the traffickers who played a role in fatal overdoses helps families heal, opponents decry those cases as an ineffective tool that’s overly punitive and too often targets low-level dealers, friends or family instead of large-scale kingpins and cartel leaders.

Others argue that dealers have no specific intent to harm overdose victims — a key element required in traditional murder indictments — and often aren’t even aware of the deadly chemicals mixed into the drugs when they sell them illegally.

“Our families and friends are losing loved ones and it’s tragic,” said Emily Kaltenbach, the Drug Policy Alliance’s senior director of state advocacy and legal criminal reform. “We recognize that families want answers and an opportunity to heal from their loss. However, embracing harder criminalization of people who sell drugs, or share drugs or give them away is not the answer.”

She said the harsh prosecutions have a chilling effect that keep people from calling for help or taking measures to save people’s lives in the crucial minutes after they have overdoses. The advocacy group calls for more evidence-based, health-oriented solutions to the opioid crisis like overdose prevention programs, better access to harm reduction services where users can check the content of their drugs, centers for syringe exchange and long-term treatment.

“We need to destigmatize drug use so that people feel safe seeking help and treatment,” Kaltenbach said. “We think it feels good when we punish people. But it’s not going to save lives. And we need to invest in and prioritize health services that will save the lives of our friends and family.

“It’s a false promise to think that when we charge a person with homicide for selling or sharing or giving away a drug, that we’re going to end the overdose crisis,” she added. “That’s just a false promise.”

Email Matt Bruce at matt.bruce@theadvocate.com or follow him on Twitter, @Matt_BruceDBNJ.