Overdosing on opioids, a classification that includes heroin and prescription painkillers, is a leading cause of unintentional death for Americans, and Southern Illinois has been hit hard.

Area prosecutors say they hope that drug-induced homicide and similar charges under different names, all of which can carry stiff penalties, send a message that dealing heroin won’t be tolerated in their communities.

But in an era giving rise to a gentler war on drugs – through greater use of alternative sentencing that includes treatment, and Good Samaritan laws providing legal immunity in many situations for those who seek help for someone who has overdosed – the increase in drug-induced homicide charges seems to swing the pendulum in the other direction.

At the least, it’s a complex charge, used with increased frequency, that raises several questions. Among them: Who is at fault when someone chooses -- out of addiction, curiosity, a desire to fit in, or any number of other reasons – to take an illegal substance and then dies? What justice is served by locking up the last person in the supply chain who provided the drug, which is often a friend or acquaintance who is an addict, and using with the one who dies, when larger dealers up the supply chain go unscathed?

And what of the fact that many people overdose on legally obtained prescription opioids, such as OxyContin and Vicodin, and many others who fatally overdose on heroin first become opioid dependent from substances prescribed by a doctor following a surgery, injury or accident.

According to the Centers for Disease Control and Prevention, opioids – heroin and prescription painkillers, obtained legally and illegally – killed more than 28,000 people in 2014, more than any other year on record. At least half of all opioid overdose deaths involve a prescription opioid.

'Shades of gray'

In regards to the decision to charge someone with distribution resulting in death, Jim Porter, the acting U.S. attorney for the Southern District of Illinois, said prosecutorial discretion is important because there are “all kinds of shades of gray” in fatal overdose incidents.

“The fact that heroin was redistributed is something we take into account,” Porter said. “Another thing we look at, and it’s sort of a sliding scale, we look at the person’s culpability.”

In the case involving Keith Scott Brown, 27, of West Frankfort, who was recently sentenced to 23 years in federal prison, Porter said the fact that he left someone behind who was dying, or already dead, without calling 9-1-1 was a major contributing factor in his office’s decision to seek an indictment related to the death of Steven Keith Scott, also 27, of Benton. 

He also said availability of the charge can be a deterrent, though his office does not utilize it frequently.

He estimated the southern district, in the past four years, has sought convictions for distribution resulting in death about six times in the East St. Louis venue. Porter was not aware if there had been a case in the Benton venue prior to Brown’s conviction.

That case started under the direction of his predecessor, Stephen Wigginton, who has since returned to private practice.

Still, Porter said the heroin and pain pill abuse epidemic is not something the country can prosecute its way out of. He noted his support for President Barack Obama’s recent proposals to increase both treatment options and access to them.

“We need other programs. We're for that," he said. "In the end, there are certain people who have to be prosecuted because of the nature of the cases.”

Owens: It's a deterrent 

Franklin County State’s Attorney Evan Owens, who originally filed charges at the county level in Brown's case, said he felt very confident that the outcome of this case was a good one for the citizens he serves. It amounts to one less person who will be distributing heroin in the community, he said.

“In this case, we’re comfortable to believe that we had a person that needed to be prosecuted,” Owens said. The case was transferred to the federal level, he said, because the federal sentencing guidelines allowed for a stricter punishment. A drug-induced homicide conviction in Illinois is punishable by six to 30 years, he said, while a federal distribution leading to death charge is punishable by 20 years to life.

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Owens said he hopes this sends a message to others who distribute drugs, and noted that distribution doesn’t have to mean that money has changed hands, and can apply to a person who supplies it to a party, even if they do so free of charge to those participating.

Owens said that he believes that the vast majority of crime in Franklin County is attributable to illegal drugs, not only use and distribution, but the associated crimes, which can include robbery, theft, battery, domestic abuse, child abuse and others.

“We strongly want to get dangerous drugs out of the county, and if they’re dealing and supplying, there are going to be consequences,” he said.

Owens said his county has a drug court, and he thinks alternative sentencing that includes treatment is appropriate for some offenders. But while Owens said there are no absolutes, he believes charges are appropriate to the person who supplied the drug in most cases where there is an overdose death resulting from illegal substances.

“When we find a death and we find that someone died as a result of illegal drugs, we’re looking to make a case for the person who provided it to them,” he said.

Owens said he is proud of the fact that Franklin County, per capita, was recently listed as one of the leading counties in Illinois in terms of the number of drug-induced homicide charges successfully convicted. Not all were related to heroin, he said, and he was not immediately able to provide details and statistics.

Expert: Strategy ineffective 

Kathie Kane-Willis, director of Roosevelt University’s Illinois Consortium on Drug Policy, countered that this is not a statistic worthy of boasting.

Just the opposite, she said, sending troubled addicts to prison for decades costs taxpayers handily. Brown’s federal prison stay is likely to cost taxpayers close to $1 million by the time he’s released, based on average yearly costs, she said.

“There’s no evidence to suggest that prosecuting people in this way will get rid of a health problem,” she said. “It’s a health problem and we need to bring health solutions to it and they just need to be implemented.”

When drug-induced homicide was first placed on the books in 1989 in Illinois, she said, it was intended to be used to go after people who intentionally caused harm, but in more recent years, as heroin use exploded again, has been rewritten to allow for more flexibility.

It also was meant to provide another tool to crack down on large-scale dealers when overdose deaths occur, but those people are rarely caught, she said, because it’s so difficult to prove the line of distribution further up the chain. She didn't speak to Brown's distribution charge, but specifically opposes charges of drug-induced homicide as it's commonly being applied.

Other communities, which perhaps saw the heroin epidemic surge earlier than in Southern Illinois, have developed programs and policies to respond to what should be viewed as a health problem, she said. That includes education about Good Samaritan laws, easier access to the drug naloxone, which can reverse the effects of opioids, greater use of alternative sentencing through drug courts, and an increase in programs to treat people who are addicted.

Some of those programs are in place in Southern Illinois, but many report gaps in the system.

Kane-Willis said that the roughly $1 million it will cost taxpayers to incarcerate Brown could be better served creating more programs to encourage addicts into treatment, and opening up access in an area where the substance abuse network reports being overwhelmed with the growing heroin problem.

She questioned whether there were any substantive efforts made to get Brown treatment assistance in the past, such as when he served time previously in state prison. Brown served time after he was convicted in June 2011 of burglary, when he was 22.

In October 2010, he was convicted of possession of a controlled substance, and placed on probation. His record also includes various misdemeanor convictions.

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