Is Florida's Tough Drug Policy Making Matters Worse

This article first appeared on Reason.com.

When Melissa Nelson was elected as a state attorney in Florida last fall, unseating the controversial prosecutor Angela Corey, she spoke of bringing fairer outcomes to the justice system, developing diversion programs to keep juveniles out of jail, and creating a unit to go through old cases to look for wrongful convictions. (Read Reason 's interview with Nelson here.)

But now it's 2017, everybody's in a panic about increases in opioid fatalities, and Nelson's office is bragging about charging an alleged drug dealer with first degree murder over a young woman's overdose death.

Both the sheriff's department and the state's attorney's office for Clay County, Florida, are making a big deal out the indictment, with press releases and press conferences. The sheriff's office says this is the first time it's ever charged someone with murder for a drug overdose.

One slight problem: It's not entirely clear under what legal authority they've brought this charge.

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Broward Sheriff's Office deputy Greg Edlund runs his K-9 dog, Hoover, over a stolen car for any signs of drugs on June 17, 2015 in Deerfield Beach, Florida. Joe Raedle/Getty

On May 23, Clay County officials announced that Trumaine Devone Muller, 32, had been indicted by a grand jury for murder in the overdose death of Ariell Jade Brundige, 18. Brundige died last November after trying what she apparently believed to be heroin but was actually the opioid fentanyl, according to Nelson's office.

Florida's laws allow for drug traffickers to be charged with first degree murder when one of their customers dies of an overdose, but only when certain drugs are involved. Heroin is on the list, but fentanyl and some similar opioids are not.

Florida lawmakers have, in fact, passed a bill to add fentanyl to this list (and to impose mandatory minimum sentences on fentanyl traffickers), but it's not law yet and it does not appear to apply to Muller.

Muller's indictment does not mention fentanyl, claiming that he killed Brundige by distributing "opium or any synthetic or natural salt, compound, derivative, or preparation of opium." Fentanyl mimics opium's effects, but it is not a synthetic derivative or preparation of opium.

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Officials also announced manslaughter charges against Brundige's friends Tyler Hamilton, 26, and Christopher Williams, 32, for their role in procuring the drugs for her. The arrest report for Williams notes that he was the one who actually called 911 when Hamilton found Brundige unresponsive. Williams told police he attempted CPR on her but was unsuccessful.

To be clear here: Police and prosecutors are charging the guy who called 911 to report the overdose with manslaughter. That would seem to violate the spirit of so-called Good Samaritan laws, which are intended to protect citizens from drug-related arrests when they report overdoses. These laws exist so that people feel safe calling 911 in a situation exactly like Brundige's: If they fear they'll get locked up, they're less likely to call an ambulance and overdose victims are more likely to die.

Florida, remarkably, already has a Good Samaritan law, but it only protects against prosecution for basic possession. Prosecutors accuse Hamilton and Williams of buying the drug from Muller and supplying it for Brundige.

Drug policy reformers have warned for years about the consequences of harsh criminalization measures. Now the panic over opioid overdoses is fueling a return to the same "lock them all up" rhetoric that utterly failed to make lives better. Reporting about the case for the Florida Times-Union , Dan Scanlan contacted drug policy experts to remind folks that this behavior does not help:

Leo Beletsky, a Northeastern University professor researching the use of murder charges for drug overdoses, said prosecution like this can actually hurt.

"These kinds of prosecutions, I believe, run counter to efforts to encourage people to seek help in all of this," Beletsky said. "...We misappropriate public funding toward things that are counterproductive instead of toward things that are likely to help. There's also danger there for policymakers to say we're doing something about this problem. It looks good on TV.

"The prosecutors, the cops and the politicians can basically check the box and say we're doing something about this crisis when in fact in the medium- and long-term, it is not likely to be productive."

Scanlan further notes that Clay County responded to 448 drug overdoses in 2016 and saved all but 49 of them. If we're concerned about the opioid-caused overdoses, what exactly do they think is going to happen when people are prosecuted for manslaughter after calling 911?

The sheriff's office said that they'll be investigating all those other drug overdose deaths as homicides as well and attempting to charge whomever provided the drugs with murder. They will no doubt present the people they capture as evil drug dealers.

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But as Lauren Krisai and C.J. Ciaramella reported for Reason, the way Florida's drug war plays out tends to result in more low-level offenders with no criminal records landing behind bars for a very long time. If Muller is convicted, he'll get a mandatory life sentence.

Reason has contacted Nelson's office for an explanation of how they're charging Muller with first degree murder based on the wording of current state laws. They have not yet responded.

Update: A representative for Nelson's office says they believe the indictment for murder is covered under current law and said in an emailed statement:

Florida law provides harsh penalties for those who cause another's death and liberal protections for those seek help with their own or others' addictions. Our office is following the law. We will continue to support rehabilitative interventions for the addicted, while holding accountable those who prey on them.

Scott Shackford is an associate editor at Reason.com.

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