Trish’s son Billy McCall got out of jail about a week ago, and right now he’s on Vivitrol (the brand name for naltrexone), which blocks the effects of opiates, and he is hoping that this time sobriety sticks.1 At the kitchen table in his modest trailer in Newark, he stares through a mostly curtained window to the street. His long, dark hair is pulled back in a ponytail and smooshed down by a beanie. He has a handsome, round face and well-trimmed beard. He admits he’s not used to how sober he is feeling right now—it makes him anxious. “The best I can describe it is like, for most people, sex is probably the best feeling they’ve ever had in their life or whatever and then, say, taking that away for the rest of your life. The thing you like the most, the best, most pleasurable thing you’ve ever had. Now, all the bullshit that comes with it and the consequences that come with it aren’t good, but physically it’s just euphoria. To take that away and say you can never have it again is overwhelming.”
Billy has struggled with substance use disorder for years now. His use is intertwined with his short list of crimes, mostly theft that leads to probation violations and more complications. He’s been to prison twice and jail often enough. Inevitably, it’s just more traumatic experiences that don’t address the underlying problems. And now he’s overwhelmed by probation—the fear that if he slips, he’ll go back to jail again. He has to call every day to see if he is going to be tested. He checks outside the window again. “I’m paranoid looking out my window thinking they’re just going to show up here.”
When they don’t call him, he gets nervous that he’s doing something wrong. When they do call him, he gets nervous that he’s doing something wrong. His main worry? “That at any moment they’re just going to come snatch me out of my life again.” Because that’s what happens, he says, when you go to jail.
“Right now I just want to be a father to my son, I want to be respected by my peers, I want to help people. I got to get myself together first, but ultimately I’d like to take this experience and be able to help some people, man.”
He has a lot on his plate, just dealing with life, with the people he has lost, and he doesn’t think being wrapped up in the criminal justice system is helping very much.
But Billy is not alone. One of the central narratives of the current overdose crisis is that there has been a softer touch than during the crack epidemic of the 1980s and ’90s. There is some truth to that. It’s hard to imagine, now, how many lives racist drug policies have destroyed—all the families disrupted, all the men and women killed, all the human beings imprisoned. On the one hand, there is a growing push for criminal justice reform in Ohio. Senate Bill 3, for example, reclassifies some drug possession charges—if possession is for personal use—to misdemeanors.2 On the other hand, the old drug-war playbook is still in use and some prosecutors have adopted a decidedly “tough on crime” approach—through the usual charges around possession and trafficking.
Also, and increasingly, this has meant treating overdose deaths, one of the key features of the current crisis, as murders and seeking to level harsh penalties against dealers, even small-time drug users, who have supplied people with the drugs that killed them. The federal government and twenty-four states have, as of this writing, what are known as “drug-induced homicide” laws on their books, under which anyone involved in the illegal manufacture, sale, distribution, or delivery of a controlled substance that causes death can be charged with murder or manslaughter.3 Penalties for charges under the state laws range from two years in prison to capital punishment, which is the case in Florida and Oklahoma. (To date, however, no one has been sentenced to death in a drug-induced homicide case.) Midwestern states, including Ohio, Wisconsin, Illinois, and Minnesota, have been among the most aggressive in prosecuting drug-induced homicides.4 According to a New York Times investigation, there have been more than a thousand prosecutions or arrests in connection with accidental overdose deaths since 2015 in fifteen states where data was available.5
While this trend began prior to Donald Trump’s election, it has accelerated since he assumed office. According to the U.S. Sentencing Commission, a federal agency, there was a 10 percent increase in 2017 in the number of people who received federal prison sentences for distributing drugs resulting in death or serious injury, and a nearly 200 percent increase since 2013.6 Trump has made it clear that he favors an aggressive approach to the opioid crisis. “My take is you have to get really, really tough—really mean—with the drug pushers and the drug dealers,” Trump said in February 2018 during a speech in Blue Ash, Ohio.7
Trump has pushed this rhetoric to its logical conclusion, suggesting that drug dealers should face the death penalty, an idea he said he got from Chinese president Xi Jinping.8 He has also expressed admiration for President Rodrigo Duterte of the Philippines for his violent approach to curbing drug trafficking.9 In March 2018, then attorney general Jeff Sessions issued a memo to the ninety-three U.S. attorneys reminding them that they have the power to pursue capital punishment in certain drug-related cases.10
This aggressive approach has filtered down to the local level. During the summer of 2017 in Middletown, Ohio, a city of fifty thousand near Cincinnati, city council member Dan Picard proposed a “three strikes and you’re out” policy for overdose rescues.11 Overdose victims would be required to perform community service to make up for the cost of treatment—and if a 911 dispatcher determined that someone who is overdosing has not performed community service, they would not dispatch emergency services. “We’ve got to do what we’ve got to do to maintain our financial security, and this is just costing us too much money,” Picard told a local news station. First responders balked at this dehumanizing proposal, but the frustration that bred it persists and can foster other misguided “get tough” responses. And according to Health in Justice—an “action lab” out of the Northeastern University School of Law—Ohio is one of the most active states, second only to Pennsylvania, with 385 media mentions of drug-induced homicide charges since 2000.12 And in Licking County, at least five people were charged for supplying drugs that led others to overdose between 2016 and 2019.13 One of those cases involved Billy’s friend Chad Baker.
The evening before Chad Baker died, his fiancée, Katie Offenburger, came home from her job as an account manager at a credit card company, let the dog out, and smoked a cigarette on the back porch of their three-bedroom house in Newark.14 The couple had bought the house a few years earlier, after meeting while in recovery.
The next morning, Katie woke up and walked to the bathroom. The door was closed, but the shower was running. She called Chad’s name. No answer. She pushed on the door, but it barely moved. Through the narrow opening she could see Chad’s feet. She pushed hard and made her way in. “I saw Chad lying on the floor. There was a needle between his legs,” she later testified.
The paramedics who arrived on the scene shortly before 8:00 a.m. found Chad Baker unresponsive. His skin was pale, he had no pulse, and his pupils had shrunk to pinpoints. The paramedics performed CPR and attempted to revive him with epinephrine (adrenaline) and Narcan, and then rushed him to the hospital, but he never recovered. Chad Baker was pronounced dead at 8:29 a.m. on May 29, 2015, just three days before his birthday. A toxicology report revealed heroin and cocaine in his system.
Two years later, a man named Tommy Kosto sat in the Licking County Courthouse awaiting a jury’s verdict after a three-day trial. Chad and Tommy had met while serving time for drug offenses in a community-based correctional facility for nonviolent offenders about eight years earlier. Tommy struggled, however, and by the spring of 2015, he was using heroin again, sending desperate daily text messages to his dealer, hoping to buy more.
But the county prosecutor alleged that Tommy wasn’t just a struggling user—he was a dealer and had sold Chad Baker the drugs that killed him. Tommy admitted to using heroin with Chad days before he died but denied that he sold the drugs that killed him. The jury sided with the prosecutor, finding Tommy guilty of involuntary manslaughter, corrupting another with drugs, possession of heroin, and tampering with evidence—for deleting text messages between him and Chad.15 Together, these offenses could result in at least fifteen years in prison. As the jury announced its verdict, Tommy wore a look of disbelief, and his attorney just shook his head.
After Tommy was convicted, Licking County prosecutor Bill Hayes—who was present at the reading of the verdict but was not the prosecutor for the case itself—told The Newark Advocate that drug-induced homicide laws would help stem the opioid crisis in Ohio.16 “The jury sent a strong message that cavalier use of drugs in our community isn’t going to be tolerated,” he said.
The concept of prosecuting individuals in connection with drug-related deaths goes back more than a century. In 1885, a doctor in New York was charged with manslaughter after a patient died from a morphine overdose.17 The doctor was accused of administering the drug “with wicked, wanton, willful, and reckless disregard of the life of the patient.” In 1916, less than two years after Congress passed the Harrison Narcotics Tax Act, which regulated the sale of opiates and coca products, three people were arrested in connection with the death of a fifteen-year-old boy who died of a heroin overdose.18 And in 1970, a Bronx grand jury indicted two men for second-degree manslaughter and criminally negligent homicide for giving heroin to a seventeen-year-old Barnard freshman.19 Many drug-induced homicide laws date to the 1980s, however, when states and the federal government used them as part of the war-on-drugs approach to the crack cocaine epidemic. After University of Maryland basketball star Len Bias died of a cocaine overdose in June 1986, Congress passed the Anti-Drug Abuse Act, which mandates a sentence of twenty years to life in prison for dispensing a controlled substance that results in “death or serious bodily injury.”20 Despite their creation as a knee-jerk response to a social crisis, these laws were rarely used for decades. That is changing. Recently, North Carolina passed the “Death by Distribution” law, which reads that someone is guilty even if there is no malice. There are even stiffer penalties when prosecutors can prove malice.21
Passing these laws and prosecuting individuals under them might help lawmakers burnish their tough-on-crime bona fides. But there’s almost no evidence that stiffer penalties have reduced drug overdoses. Northeastern School of Law professor Leo Beletsky told me that, in many ways, drug-induced homicide prosecutions are a form of political theater: “It’s an episode out of a multiseries sort of American story.”
A 2018 report by the Pew Charitable Trusts points out that there’s no relationship between drug imprisonment rates and a state’s drug problem. “The theory of deterrence would suggest, for instance, that states with higher rates of drug imprisonment would experience lower rates of drug use among their residents,” the report notes. But according to the study, incarceration is one of the least effective methods for reducing drug use and crime.22 “With addicted people, it doesn’t deter behavior or deter people who have multiple felonies and can’t do anything else to make a living,” said Kathie Kane-Willis, director of policy and advocacy with the Chicago Urban League, who has been tracking the outcomes of Illinois’s drug-induced homicide law since the early 2000s.
And yet incarceration is still a common policy for addressing America’s addiction crisis. One in five of the almost 2.3 million people currently in prison in the United States is there because of a drug-related offense.23 Most of these people are not violent drug kingpins; mandatory minimum sentencing laws have filled jail cells with low-level drug offenders, primarily minorities.
Tommy Kosto and Chad Baker are both white, and the prevailing narrative around the opioid crisis presents it as a white problem. This isn’t factually the case, of course—and the prosecution of drug-induced homicides is likely to affect minorities disproportionately as well. African Americans are dying from opioid overdoses at a rate higher than the general population in a number of states, including Illinois, Wisconsin, Missouri, Minnesota, and West Virginia.24 In Illinois, deaths from opioids among African Americans increased by 123 percent from 2013 to 2016, faster than those in any other racial group. And Kane-Willis told me that, as the opioid crisis spreads and drug-induced homicide prosecutions become more common, even more people of color are likely to go to prison.
Moreover, while many states, including Ohio, have Good Samaritan laws that are meant to encourage people to call 911 if someone appears to be overdosing, the fact that you could be charged with manslaughter discourages some people who use drugs from seeking help. Besides, Ohio’s Good Samaritan law has some serious limitations: it excludes people on parole and probation; you’re only allowed to receive immunity twice; and the person who overdosed must seek help from a “community addiction services provider or a properly credentialed addiction treatment professional” within thirty days.25 Restrictions (and the misunderstandings they create) can have a chilling effect. In a 2017 study, Johns Hopkins public health researchers Amanda Latimore and Rachel Bergstein found that some people who use drugs said that if they knew someone was overdosing they would hesitate to call 911 or not call at all, because they feared being charged with the person’s death.26 Illinois’s Good Samaritan law specifically includes language that says it will not protect individuals from drug-induced homicide charges.27
Drug-induced homicide laws are ostensibly meant to fight serious drug traffickers. For example, New Jersey’s 1987 statute targets “upper echelon members of organized narcotics trafficking networks.”28 In 2003, Vermont used similar language, claiming its law targets “entrepreneurial drug dealers who traffic in large amounts of illegal drugs for profit,” rather than people who sell drugs to support their own habit.29
In practice, however, the laws often lead to prosecutions against friends and family members. Twenty-five of thirty-two drug-induced homicide prosecutions identified by the New Jersey Law Journal in the early 2000s involved friends of the person who overdosed rather than “upper echelon” traffickers.30 In 2013, Jarret McCasland of Baton Rouge, Louisiana, was sentenced to life in prison because his girlfriend died of an overdose after the couple shot heroin together.31 In 2016, Lindsay Newkirk injected heroin into her arm and then into her father’s arm in a motel on the outskirts of Columbus, Ohio. When she woke up hours later, her father was dead. Facing up to eleven years in prison for involuntary manslaughter and corrupting another with drugs, she pled guilty and was given a three-year sentence.32 Later that year, Samantha Molkenthen, a young woman in Jefferson County, Wisconsin, was sentenced to fifteen years in prison for delivering the drugs that led to the overdose death of her friend Dale Bjorklund.33
A 2017 investigation by a Fox News affiliate in Wisconsin into one hundred drug-induced homicide prosecutions in the state found that in nearly 90 percent of the cases the people charged were friends or relatives of the person who overdosed.34 According to Lindsay LaSalle, director of public health law and policy at the Drug Policy Alliance, an advocacy organization focused on ending the war on drugs, one reason the last person who touched the drugs is typically charged is because it’s easier to get a conviction. “The further you get up the supply chain and the further removed you get from the actual hand-to-hand sale or exchange, the more difficult they become [to prosecute],” she said.
At Tommy Kosto’s sentencing hearing in July 2017, Clifford Murphy, the assistant prosecutor, pointed out that Tommy had been in the court before and had been given multiple chances to turn his life around. This time, he asked the judge to “impose a prison sentence that will deter other people from similar type conduct”—a sentence “consistent with the expectation that the community should be aware that people that are going to participate in these endeavors, especially when someone dies, are going to be held accountable.”
“We’re asking that this court send a strong message through a serious prison term for Mr. Kosto,” Murphy told the judge.
Judge David Branstool addressed the court before the sentencing and pointed out that he knew both Chad and Tommy—that Chad had graduated from his drug court, weeks before he died, and that Tommy was also someone with substance use disorder who had been in his courtroom before.
Branstool sentenced Tommy to a mandatory four-year prison term, plus one additional year, a fairly lenient sentence. In May 2018, however, the Fifth District Court of Appeals found there was not enough evidence to convict Tommy of the charges of involuntary manslaughter and corrupting another with drugs.35 Chad Baker had died from a combination of heroin and cocaine, but Tommy had been charged with supplying only the heroin. The other two convictions still stood, and Tommy would serve another year while the prosecutor appealed the appellate court decision to the state supreme court.36 At his resentencing, a visibly tired Tommy told the court, “I just want this nightmare to be over.”
From 2016 to 2019, at least 131 people died from an accidental drug overdose in Licking County, Ohio. If drug-induced homicide prosecutions are intended to send a message to dealers, there is no discernible evidence that they have been deterred. In a speech at the White House on August 4, 1986, as lawmakers in Washington wrestled with how best to address the drug crisis in the wake of Len Bias’s fatal overdose, President Ronald Reagan acknowledged that it would take more than criminal prosecutions to win the war on drugs. “We’ve waged a good fight,” Reagan said. “Drug use continues, and its consequences escalate. All the confiscation and law enforcement in the world will not cure this plague.”37
That is as true today as it was three decades ago. And yet when Reagan signed the Anti-Drug Abuse Act into law that October, political theater won out over more rational thinking. Out of the law’s total $1.7 billion budget, $1.1 billion was allocated for law enforcement: more boats, planes, and weapons with which to fight drug traffickers on land, sea, and air; more federal agents, boots on the ground in the ever-expanding drug war; and, most telling, more prosecutors and more jail cells.38
According to Leo Beletsky, handing down harsh prison sentences will do little to address the current addiction crisis. Doing so is simply an emotional response, he said, by people who are looking at a crisis and seeking a quick solution. If the goal is to reduce overdoses, Beletsky told me, then the state has to approach the problem differently. “We’ve had these laws, and we have more people on drug-related charges behind bars, per capita, than any other nation on earth currently, and yet heroin is more widely available and cheaper than it’s ever been,” he said. It would be much more effective to focus instead on harm reduction—measures that seek to change user behavior and save lives.
If people are overdosing around loved ones, that’s a sign that a community could use better access to naloxone so that people can be quickly revived and have access to treatment, a policy U.S. surgeon general Jerome Adams and others have called for.39 But programs like these require funding, as well as a dramatic transformation in the country’s approach to addressing addiction—and that hasn’t happened. Every dollar that goes to a drug-induced homicide prosecution is a dollar not going to support harm reduction, treatment, or prevention of overdoses. These laws underscore the reality that the war on drugs has been a resounding and dangerous policy failure, and that primary policy failure telegraphs other failures that cripple communities and lead to more deaths.40 To underscore this reality, in 2019, The Philadelphia Enquirer’s ever-on-point opinion writer Abraham Gutman coined the slogan “Every Overdose Is a Policy Failure” and made it his Twitter name for a time.41
Louise Vincent, executive director of North Carolina’s Urban Survivors Union, a group of people who use drugs and who advocate for policy change, says that these laws are about “manipulating people’s grief.” Her daughter overdosed while in a treatment center. Afterward, she says, she was angry and wanted someone to pay for what had happened. At the same time, she knows what it is like to be in withdrawal, to have dope sent to you in treatment. “And so I’m battling with this emotion,” Vincent says. “And it becomes very clear to me that it’s grief. Those stages of grief, nobody made that shit up. The anger, blame, all of that stuff. And so we’ve got a society that’s manipulating these feelings, knowing that parents and people that love us typically have a lot of guilt, because we don’t have good hard-and-fast answers. Anger feels good and powerful. Anger feels like you’re doing something. Sadness and grief feels like you’re powerless. And feeling powerless is pretty horrific, especially for somebody who’s lost a child.”
She wanted to change the narrative, though, to step back and acknowledge that a prosecution wouldn’t solve the problem. So Vincent, along with Jess Tilley, founder of the New England Users Union, launched a project in 2018 called Reframe the Blame that allows people who use drugs to sign a “Do Not Prosecute” document, asking that if they overdose no one be held criminally responsible for their death.42 This is a way, though not legally binding, for people to announce their own desires, to speak, and hopefully to be heard. In an essay she wrote, Vincent noted, “The war on drugs is a war on people and their human rights.” Now, it seems, she is fighting back.
When Billy thinks about Chad’s death and Tommy’s imprisonment, he thinks only of loss. Like Chad, like Tommy, Billy has been through it all. He started using “one thing or another,” he says, when he was twelve. By the time he was twenty-four, he was using a needle. He met Chad and Tommy in a community-based correctional facility, a transition space from prison. They were all trying to recover together.
Billy remembers Tommy as an introvert—almost the opposite of gregarious Chad. “He was just a nice, quiet guy. He was content to get his drugs and sit at home.” He certainly wasn’t the dealer he was made out to be in the courtroom, Billy says. He was just a user engaging in user behavior. In Licking County, he said, that can mean pooling money and driving to Columbus to buy cheaper heroin and picking up a little extra for four or five other people. Today you help them out; tomorrow they help you out. He recalls a time when he and Chad were working together assembling grills and bicycles for Walmart in western Pennsylvania. They were both sober at first, but months into the work they began using again. “If we were sick and we couldn’t get nothing there,” Billy says, “we would drive all the way back to Columbus, a five-and-a-half-hour drive, grab our stuff, and then go all the way back.”
Billy says that one of the main reasons users feel compelled to buy and share is that they know what it means to go through withdrawal. “If you’re compassionate, if you’re a human,” he says, “you wouldn’t want to see anybody go through that, you know?”43
According to the prosecutor, Tommy purchased $450 of heroin.
“Is that Trump’s death-penalty dealer?” Billy asks. Tommy wasn’t living the high life, Billy says.
Billy remembers that one year at the county fair, Chad was playing in a cornhole tournament with a friend. A random guy walked up to him and said, “Man, that’s a really nice shirt.” Chad replied, “You know what, you can have it.”
“He just gave him the shirt off his back,” Billy says. “He was like, ‘Yeah, you can have it.’ But not in a sarcastic way.” That trip to the fair stands out in Billy’s memory because he was not using then. “When you get clean and you actually do social stuff like that, it’s like, ‘Wow, maybe we can make it.’ When you’re getting high you’re thinking, ‘There’s no other life but this. Life isn’t going to be fun.’ You can’t have any good times without using.” But then he pauses and adds, “You don’t really have any good times while you’re using.”
He continues, “None of us are bad people. At times we just decide this is our life and we’re going to accept it. Eventually you want change, you know what I mean? You get tired of disappointing everybody in your life, you get tired of disappointing yourself, you want more for yourself, you know what I mean? I’m sure he had more of a life planned out than living in his parents’ house at almost forty or thirty-five.”
As Billy slips from first person plural to second to third, he nervously glances out the window. It’s not clear, at times, if he’s talking about Tommy or Chad or himself. He sees it from so many sides because that’s how he has lived it and, he says, he thinks about it all the time.
Several years ago, Billy and his girlfriend Michelle bought some heroin together and shot up in her car, in the parking lot of a Columbus-area Nordstrom.
“I hope we can feel this,” she told him.
“Yeah, me too,” Billy said. “There’s only fifteen dollars’ worth apiece.”
She shot up and said, “It’s really good.”
“Don’t overdose before I get mine,” Billy responded, joking.
“I’m gonna step out and walk around the car.”
Billy hit his and then joined her to take in the beautiful July day.
“I gave her a big hug,” he remembers, “and said, ‘Let’s go to Newark.’”
Suddenly she collapsed on the ground.
“I remember saying, ‘Michelle, I’m gonna have to call the squad if you don’t start breathing,’” Billy says. Then he, too, lost consciousness. “Then I came to, and I’m spread out, and there’s all kinds of paramedics around me.”
At the hospital he learned that Michelle was in a coma. He wanted to see her, but he wasn’t allowed in her room. Seventy-two hours later, she passed away, and Billy was alone in the hospital at eleven at night with his car impounded, no phone—he didn’t even have his shoes anymore. A hospital social worker paid for a cab ride back to his mother’s house in Newark. She was shocked to see him.
“What the hell’s going on?” his mother, Trish Perry, asked when he knocked on her door.
Trish got Billy back into treatment down south in Pike County, but this time it was even more difficult—now he was dealing with the fact of Michelle’s death. Three weeks in, he bought some black tar (a crudely processed form of heroin that is tar-like) off someone inside, locked himself in the bathroom, and shot up. He tied a belt tight around his left arm, found a vein, and pushed the needle in, pulling back dark blood. It felt, he remembered, like the first shot he’d ever taken.
A guy working in the kitchen noticed that he had been in the bathroom for some time. He put his ear to the door and heard Billy gasping. He kicked the door in and found Billy face-first on the floor. He started CPR, stuck him in a cold shower, and called 911. He was rushed to the hospital. According to the ER report, after he became alert again, Billy told the doctor that he wasn’t attempting suicide, that it had been “three weeks since he had last used.”44 The last time he used, he said, was when his girlfriend Michelle had “died in his arms.”
And then a sheriff’s deputy came in and began asking him questions. He told Billy he was being charged with “abuse of harmful intoxicants,” a first-degree misdemeanor under Ohio law. Billy responded to the officer, “I’ve been charged with felonies and sent to prison, and you’re going to charge me with a misdemeanor?” He didn’t say anything else. The treatment center packed up his belongings and left them in his room there in Pike County. Once again, discharged from a hospital, a long way from home.
“This has been a whole trip for my mom, too,” Billy says. “She’s evolved a lot through it. At first, she would just get angry about stuff; she would just shut me out, tough love. I’d see anger in her eyes, and she wouldn’t want anything to do with me. Now, when I look at her, when I’m using and stuff, I can tell that she’s just scared she’s not going to see me again. She ain’t angry. She ain’t mad about the shit. She’s more sad than scared. Does that make any sense?”
It does make sense. One of the first times that I met her, Trish told me that she had already put money away for Billy’s funeral.