Despite talk of a public health approach to dealing with substance use and addiction, the criminal justice system continues to carry the brunt of the response to the overdose crisis.
Despite efforts to not repeat the incarcerative response of the crack epidemic of the 1980s and ‘90s, the number of people charged with possession of illicit drugs in Cumberland County has nearly doubled since 2013, according to court records.
Despite calls to end the decades-old war on drugs, the fight wages on.
One tool in the criminal justice arsenal being used with greater frequency in the face of rising drug overdoses it to treat the cases as homicides.
In Pennsylvania, a person can be charged with drug delivery resulting in death, which is considered a homicide and can carry up to a 40-year prison sentence, for providing drugs to a person who overdoses and dies.
Seventy-seven people were charged with the offense in 2016, according to court records, and if local trends are an indicator, that number will increase this year.
Since 2013, nearly half of all homicide cases in Cumberland County have been for drug delivery resulting in death.
The law has been on the books since 1989, but has undergone changes because of constitutional challenges and was rarely used locally until recently.
Between 2009 and 2011, Cumberland, Perry, Adams and Franklin counties combined prosecuted only two cases, according to an analysis of court records conducted by The Sentinel.
In 2015 alone that number reached six cases and as of Nov. 30, more than 20 cases have been filed this year, according to court records.
The bulk of the cases — 17 — were filed in Franklin County, up from just four cases a year prior, court records show.
In fact, more cases of drug delivery resulting in death have been filed in Franklin County in 2017 than in the eight years prior combined.
District Attorney Matthew Fogal said this was part of a two-part approach to dealing with the overdose epidemic.
“I often describe this current response in terms of the heart and the fist,” Fogal said. “(Drug delivery resulting in death) prosecutions are punitive for drug traffickers, as they should be. That is the fist. But there is also the heart.”
The county has also seen a large uptick in bail amounts for people charged with selling drugs. Median bails rose $25,000 in 2012 to $100,000 in 2016, according to an analysis of court records conducted by The Sentinel.
Median bail for similarly charged people in Cumberland County was $25,000 last year, according to court records.
Franklin County’s jail population has surged to average more than 500 inmates per day, according to Franklin County Prison Board reports. This is more than 200 inmates more than the jail’s rated capacity, causing the county to pay to house inmates at other facilities across the state.
For comparison, about 460 inmates were being housed in Cumberland County Prison on Dec. 1. Cumberland County has a population roughly 50 percent larger than Franklin County and the court system handles roughly 2,000 more cases a year, according to court records.
“An uptick in the amount of prosecutions for (drug delivery resulting in death) has been conversely matched by the time and effort partnering with the treatment community in order to find help for those that want it,” Fogal said.
The county recently began a treatment court for people in the criminal justice system with substance-use disorder, and Fogal said time and resources have been put into finding treatment for those who “want it.”
The treatment court currently handles about 20 people, which is about 0.74 percent of the county’s yearly caseload, according to court records.
“While much must be done in order to combat addiction and the scourge illegal drugs bring to our front doors, our current efforts move us yet closer to understanding the grayness of the line between addiction and crime,” he said.
U.S. Attorney David Freed said prosecutions are a way of holding defendants responsible but are likely not a deterrent to future crime.
“The person who used has died. Prevention would be treatment for that person,” Freed said. “It’s a culpability and punishment thing more than it is a crime prevention down the road.”
At the time of the interview, Freed was the district attorney for Cumberland County.
Proponents of the drug delivery resulting in death law generally argue that the law is aimed at drug traffickers.
A review of more than 200 cases of drug delivery homicides nationwide conducted by Health In Justice, a program run by researchers from Northeastern University, found less than half of the charged cases involved a typical dealer/buyer relationship.
More than half of the cases involved defendants who were caretakers, family members, friends or romantic partners of the person who died, according Health In Justice.
“The calculous that has to be engaged in is, is it a sharing situation or is it a sale situation,” Freed said. “If that’s what we have to do to impact street-level people, I’m OK with that and I understand why somebody else may not be.”
During Freed’s tenure as district attorney, Cumberland County was one of the most aggressive counties in the state in using the charge, averaging about three cases a year between 2013 and 2017.
“What’s the tougher case?” he said. “When it’s a dealer who’s dealing to support a habit … I think depending on the level of habit, we’ve handled that both ways.”
Pennsylvania Attorney General Josh Shapiro drew a less blurred line when it comes to using the charge.
“If you’re peddling this poison in our communities and someone dies from it, we’re going to charge you to the fullest extent of the law,” Shapiro said when asked about using the charge when two people using drugs share and one person dies. “The Legislature has said and the governor has said that I can charge someone with drug delivery resulting in death.
“We try to use that in the (Attorney General’s) office on bigger dealers and the ones who are dumping this poison in our communities, and we try to be very responsible when we charge,” he said. “We try to charge people with crimes we know we can convict them on, too.”
Shapiro spoke to a room full or reporters in November saying the charge was an “important and effective” tool for his office.
Nearly half of all the cases filed in Franklin County this year involve multiple defendants charged in connection to one death, including one case where three people were charged in connection to a single death, according to court records.
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