The afternoon of July 24, Baton Rouge police officers arrived at the Red Roof Inn, where they discovered an unresponsive 40-year-old woman who later died at the hospital.
Her toxicology results revealed she had died of multidrug toxicity: Several different drugs, including fentanyl — a powerful synthetic opiate — were found in her system.
Overdose deaths in East Baton Rouge Parish in 2019 hit the highest number recorded, a worrying pattern that has galvanized officials as they s…
Months later, officers arrested a man named David Johnson on a second-degree murder count for his alleged role in her death. Johnson was at the hotel with the woman and had called 911. He told officers the two were friends and had consumed several pills together when the woman asked for another, according to his arrest report.
Johnson purchased what he believed to be two more pills of oxycodon in the hotel parking lot, the arrest report says. After ingesting the pills, however, the woman became unresponsive.
If convicted, Johnson could face life in prison without the possibility for parole.
The so-called drug-induced homicide statute under which he is being prosecuted was intended to crack down on dealers, and some family members of overdose victims wish the prosecutors would charge people with murder more often. But there have been fewer than 15 such arrests in the parish in the past decade.
There are several reasons for this. Police say it's hard to meet the high standard of proof for a murder arrest in most drug cases; the district attorney says the charge isn't always appropriate; and advocates say it deters people from reporting when they need help and treatment.
"We have families that would like us to use that statute more, but because of proof and trying to decide what is the right thing, we can’t always give them what they’d like to see," East Baton Rouge Parish District Attorney Hillar Moore said.
Opioid overdose deaths have also risen dramatically during the coronavirus pandemic. There have been 201 fatal overdoses since the start of 2020 through Nov. 3, according to the most recently available numbers from the East Baton Rouge Parish Coroner's Office. By comparison, there were 126 overdose deaths in 2019.
At the outset of the coronavirus pandemic, no one knew if drug overdose deaths would increase or decrease.
Friend vs. dealer
A section of Louisiana’s second-degree murder statute allows arrest and prosecution for second-degree murder if the distribution or dispensing of an illegal drug is the direct cause of a death. Federal drug statutes, meanwhile, impose a 20-year mandatory minimum sentence if death or serious bodily injury results from providing the drug.
In East Baton Rouge, the state statute is used sparingly.
"You don’t want to (over)use the statute that somebody would be afraid to call the police, which would lead to more overdose deaths," Moore said. "We’re not focused on prosecution. We’re focused on help."
Moore said although there has been a handful of second-degree murder arrests in the past decade, only one person was actually convicted on that charge.
In 2016, Jarret McCasland was sentenced to mandatory life imprisonment after the 2013 heroin overdose death of his girlfriend. McCasland, like many people arrested on these counts in the parish, had a relationship with the person who overdosed.
However, according to records from his appeal, McCasland showed a "pattern of conduct" that depicted him as someone who had a history as a drug provider.
A number of the cases that did not result in a murder conviction involve friends, partners and roommates. These are not the people Moore intends to target when deciding whether to prosecute for this crime; he said he recognizes the complexity of each individual situation when determining whether a murder charge is "appropriate."
"The idea is to actually just hone in on the person that is the actual dealer of drugs, not just a friend who gives folks drugs," he said. "We want the dealer to be at risk and subject to penalty."
Most arrested for providing drugs to an overdose victim have either avoided indictment or been convicted on lesser charges, such as heroin possession or negligent homicide. In addition to Johnson, there have been three other arrests this year for overdose deaths. All remain pending.
Brycen Stubbs first witnessed a fatal overdose was when he was only 22 years old.
Although overdose deaths continue to climb, this category of murder arrest remains infrequent.
Moore says this is due to several factors. His primary goal is to focus on treatment options for people who use drugs, "so they don’t die and aren’t victimized." If his team can identify those struggling with addiction early, they can help them find pathways to recovery.
Then there is the issue of identifying dealers — the clear targets in the epidemic. All deaths are investigated in the parish by law enforcement, but not every overdose death reveals the type of evidence that can open a homicide case.
It makes no difference if someone receives money for the drugs, calls for help, or uses drugs themselves, according to Moore. If a person directly supplies someone with drugs that cause an overdose, that person could go to jail.
But in many cases, like the hotel room overdose, there are multiple drugs present in someone's system, making it difficult to determine exactly which drug caused an individual's death.
For a good number of overdose deaths, people are found alone — in cars or bathrooms, with no witnesses. Relying on cellphones for information can be a complicated investigative process. Many times dealers use burner phones, for instance.
Spokespeople for both the Sheriff's Office and Police Department were unequivocal in saying their officers follow the second-degree murder statute. If there is insufficient evidence, there can be no arrest.
And, like in most of the cases where arrests have been made, sometimes the lawful charge is possession or intent to distribute, Moore said, rather than murder. This can anger some families who want to see punishment for their loved one's death.
"I don’t think I’ve waived on a heroin dealer," he said. "A heroin dealer knows that it’s inherently dangerous to deal heroin. But people who are possessing heroin and are not the dealer? Surely the mindset is much more treatment alternatives and not prosecution."
Health experts warn that people who use drugs are particularly vulnerable to COVID-19, the deadly disease caused by the coronavirus.
A chilling effect
Despite their relatively limited use locally, some advocates and treatment providers say these types of laws still have a chilling effect on people seeking help for friends or loved ones if they've overdosed.
"Not only are the laws not effective in deterring use or sales, but they have the tendency to undermine the willingness of folks to come forward, so they’re undermining legislation put in place, like Good Samaritan laws," said Grey Gardner, senior staff attorney with the Drug Policy Alliance, a New York City-based nonprofit.
Louisiana's Good Samaritan law provides immunity for someone who acts "in good faith" and seeks medical assistance for another person experiencing a drug overdose. The catch is that, if the same person who called 911 also provided or administered drugs to the overdosing victim, their immunity disappears.
Janzlean Laughinghouse, executive director for Capital Area Human Services, said her clients who use drugs are not educated about such laws and their relationship with law enforcement is fraught.
Moreover, their fear discourages them from remaining with a friend or partner who is overdosing. Some may leave and call for help anonymously, but the fact remains: No one wants their friend to die of an overdose, she said.
Gardner added that "more often than not," those prosecuted "are not the high level distributors." Instead, those with a relationship to the user are the ones who face charges. In this way, the law bypasses the intended targets.
"Sometimes laws have unintended consequences," Laughinghouse said. "We want to divert people from the criminal justice system into treatment. That’s the goal."
Laughinghouse said her organization promotes a treatment model for drug use, one that views addiction as a brain disease. Each person's course of recovery will not be identical, but the more the options are discussed publicly, the more likely someone will seek help.
"You cannot get a dead person into treatment," Laughinghouse said. "As long as there’s life, there’s hope."
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