Drug-related overdose deaths continue to climb nationwide. Pennsylvania declared the opioid epidemic a state of emergency at the beginning of this year.
In Elk County, in March 2017, Kaitlyn Buerk, 24, bought five bags of drugs from her sister Allison Miller and her cousin Theresa Sample, who had just gone to Pittsburgh and bought 20 bags of what they thought was heroin.
Buerk died from an overdose the next day at her parents’ house in Wilcox. A lab test determined she had taken straight fentanyl.
Miller and Sample each faced multiple felony charges, including drug delivery resulting in death.
The case was significant not only because it involved one of six overdose deaths in the county that year, but also because it was the first time the county has filed those charges.
Elk County District Attorney Shawn McMahon said he cannot discuss the case since it’s still ongoing, but in a press conference in February, he said sellers and distributors contribute to the opioid crisis.
“These cases that have been filed show what high stakes that we’re dealing with,” McMahon said. “That a first-time user can expose themselves to death and may not even know it.”
What happened in Elk County reflects a statewide trend: more and more prosecutors are pressing the first-degree felony charge on those who provide drugs that lead to overdose deaths, as one of the responses to the opioid crisis.
The Administrative Office of Pennsylvania Courts found that, last year, 205 drug delivery resulting in death charges were filed across the commonwealth, more than double the year before. In 2013, that number was only 15.
Increasingly, law enforcement is using this charge as a tool to pursue drug crimes aggressively. But some critics say it’s not at all solving the problem.
“The increase in using this charge and prosecuting people, it hasn't shown any significant or any decrease in people dying from overdose. It's not deterring anyone,” said Richard Settgast, a former Centre County public defender and now an adjunct professor at Penn State School of Law.
Settgast said changes to the criminal code in 2011 make it easier for prosecutors to convict defendants and impose significant jail time.
“We call these super felonies,” Settgast said.
While the maximum penalty is 40 years, most defendants with no prior record are likely to get 4 to 10 years in prison.
Most of his clients struggled with addiction themselves, Settgast said, and it’s hard for them to understand how they could be facing “essentially a murder charge” when they're using the same drugs as the victims.
According to the Center for Disease Control and Prevention, Pennsylvania saw a 44 percent increase in drug overdose deaths in 2016 compared to the previous year. In 2016, 4,627 Pennsylvanians died from drug overdose, one of the highest rates in the nation.
In August, the DEA’s Philadelphia Division announced there were 5,456 drug-related overdose deaths in Pennsylvania in 2017, an 18 percent increase from 2016.
In 2014, Elizabeth Kline Smeltzer of Boalsburg died from an overdose on heroin that her boyfriend, Ryan Kemp, gave her. Despite the Smeltzer family’s wish to get Kemp into treatment, instead he was sentenced to 4 to 12 years in prison.
Former Centre County District Attorney Stacy Parks Miller prosecuted that case. Settgast said, district attorneys have a lot of discretion on when to bring charges.
“This is an elected position,” he said. “A lot of them feel that in order to be reelected they need to be tough on crime. They're trying to look like they're trying to solve the problem.”
To address the root of the crisis, Settgast said diversion and treatment should be the focus. He helped establish the drug court in Centre County, where eligible participants can get sober and might have their charges reduced or dropped.
Centre County District Attorney Bernie Cantorna agrees that this type of case should be handled with nuance. He said there’s a definite distinction between drug dealers and their victims.
“It is our policy, our objective to identify the drug dealer and prosecute the drug dealer with these offenses,” Cantorna said. “Not those who are addicted, who are the victims of the drug dealers who are peddling the poison.”
Currently, there are three prosecutions involving drug delivery resulting in death in Centre County and two other investigations likely to lead to those charges.
These cases are difficult to prove, according to Cantorna. There has to be identification of the drug dealer, evidence that person provided the drug and determination that those substances caused the death.
Cantorna said, the significant sentencing can be a powerful tool.
“You have to impose stiff sentences with drug dealers who are selling heroin. You have to impose stiff sentences when people die… it is one piece in the puzzle to address the issues.”
Cantorna and his office have worked with the Centre County HOPE initiative and hosted town halls, talking to the public about addiction prevention and treatment.
“I will use the bully pulpit of the district attorney's office to attempt to get people help before they die or before we have to prosecute them,” he said. “And if they commit crimes, we will prosecute them.”
Three months after the press conference in Elk County, a third person was charged – the man from Pittsburgh who supplied the drugs to Miller and Sample, before they gave it to Kaitlyn Buerk. Andre Frazier is charged with three felonies including conspiracy to commit drug delivery resulting in death.
This story is part of “Battling Opioids,” a Pennsylvania public media collaboration focused on the opioid crisis.