The Wall Street Journal, 10/2/17
By Kate King
Less than four months after New Jersey resident MaryAnn McKinnon died of an overdose, police arrested the man accused of selling the opioids that killed her.
Cleveland Spencer, 26, of Paterson, N.J., was charged in late September with four drug offenses, the most serious of which was a felony alleging he sold the drugs that resulted in Ms. McKinnon’s death.
As New Jersey searches for new ways to contain its worsening opioid epidemic, prosecutors are increasingly turning to an old law that seeks to hold drug dealers accountable for fatal overdoses.
“I think anybody who understands the nature and scope of this epidemic is led to the same conclusion,” said New Jersey Attorney General Christopher Porrino. “Which is, you’re better off spending your time prosecuting the dealers than you are prosecuting a small time user.”
Mr. Spencer, who was charged under the state’s Strict Liability for Drug-Induced Deaths statute, faces up to life in prison because of prior convictions. He has pleaded not guilty and his attorney declined to comment.
The Strict Liability law has been on the books in New Jersey since 1987. It is being enforced more frequently since the state attorney general’s office issued a 2014 directive urging law enforcement and county prosecutors to investigate and charge drug dealers in fatal overdose cases whenever possible.
State records show that annual arrests under the law, which typically numbered in the single digits, rose to 13 in 2014 and to 15 in 2016. Annual convictions have numbered up to three a year since 2010, but a spokesman for the attorney general’s office said the cases can take years to resolve.
Mr. Porrino said the law acts as a deterrent that can help reduce the distribution of dangerous drugs. The charge carries potential sentences of 10 to 20 years, and those convicted must serve 85% of their prison term before becoming eligible for parole.
Mr. Porrino said that in addition to “street-corner drug dealers,” the state is actively pursuing charges against doctors who overprescribe painkillers. In March, the attorney general’s office charged a general practice doctor with prescribing oxycodone to a 26-year-old man who later died of an overdose.
“We call drug dealers in white coats worse than regular drug dealers, because doctors are licensed,” Mr. Porrino said. “You walk into a doctor’s office and believe you can trust him or her to look after your best interests.”
The doctor, Byung Kang, 77 years old, of Little Falls, N.J., has also been charged with money laundering and tax fraud. Prosecutors allege he sold 90-count prescriptions for oxycodone pills to numerous patients, including an undercover officer, for years without medical justification.
Dr. Kang’s attorney, Stephen Turano, said his client is contesting the charges and has rejected a plea offer that would have sent him to prison for up to 10 years.
Mr. Turano said he is concerned that the state’s strict-liability statute carries heavy criminal penalties but doesn’t require prosecutors to prove that defendants intended to cause overdose victims’ deaths.
“The intent element is I think very, very problematic for me,” he said.
Twenty states, including New Jersey, have laws providing extra penalties—ranging from two years in prison to death—in drug-induced fatalities, according to the Drug Policy Alliance, which will release a report on these laws in late October. Thirteen states have introduced legislation this year to either enact laws or increase penalties.
Addiction and drug policy experts, however, say there is no evidence that prosecuting dealers in connection with fatal overdoses helps reduce drug use.
Rosanne Scotti, New Jersey director for the Drug Policy Alliance, a nonprofit advocacy group, said government resources would be better spent on expanding access to treatment, the opioid-antidote naloxone and on other public health interventions.
“The people who are supplying drugs are meeting a demand that people have,” she said. “You really want to have a demand-side solution.”
Bob Budsock, president and chief executive of Integrity House, a nonprofit addiction treatment provider in New Jersey, said he understands why families and law enforcement seek accountability after an overdose death. But he said the law often ensnares low-level dealers who are themselves suffering from addiction.
“In the long run, it’s not really addressing the core problem,” he said.
In New Jersey, there were more than 1,000 fatal overdoses in the first six months of 2016, the latest data available, according to state records. New Jersey Gov. Chris Christie, a Republican, has made battling opioid and heroin addiction the cornerstone of his final year in office and chairs a presidential commission on the epidemic.
Ms. McKinnon’s mother, Betty McKinnon, said her daughter had struggled with addiction for several years but seemed to be doing better before a string of bad news knocked her off kilter.
“It was like she couldn’t really handle any hurt,” Ms. McKinnon said. Her daughter died at 33 years old after overdosing in June on heroin laced with fentanyl, a synthetic drug 50 times as powerful as heroin.
Ms. McKinnon said she was glad Mr. Spencer had been arrested and considered him culpable for her daughter’s death.
“Was it her fault? Some people think so. But I don’t, because he was old enough to know better.”