Smackdown

Law enforcement gets tough on heroin

DRUGS | Bruce Rushton

Outlawed since 1924, heroin bumped along from the Jazz Age through the Vietnam War, mostly as someone else’s problem, at least so far as most folks outside large metropolitan areas were concerned. Penalties are tough. Heroin possession in Illinois can fetch four to 60 years in prison, depending on the amount.

The threat of prison hasn’t helped. Heroin use has exploded throughout Illinois, including the Springfield area, where Sangamon County coroner Cinda Edwards recalls being shocked by the number of overdoses when she took office in 2011.

Sixteen people died of opiate overdoses the year that Edwards became coroner – because heroin quickly metabolizes into morphine once it enters the body, it isn’t possible to determine what type of opiate caused death without specialized testing that is not routinely performed. The numbers worsened in 2012, when 17 people died from opiate overdoses and five additional deaths were attributed to heroin overdoses.

For all intents and purposes, an opiate overdose is a heroin overdose, given the rarity of other opiates popular with drug abusers, according to Dr. Scott Denton, a Bloomington pathologist whose office performs autopsies for more than 30 counties, including Sangamon. Heroin overdoses are down lately, he says, but they keep on coming.

“I would say it spiked a few months ago,” Denton said. “It’s still too high.”

More people in Sangamon County died from opiate overdoses in 2011 and 2012 than from traffic accidents and gunshot wounds combined, and the numbers aren’t unusual. Overdose deaths of all kinds in the United States have more than tripled since 1990, and overdose became the nation’s leading cause of accidental death in 2008. The numbers haven’t gotten any better since. Just this month, the Centers for Disease Control and Prevention in Atlanta reported that record-level overdose deaths are rising fastest among middle-aged women.

In its July 1 report, the CDC pinned most of the deadly surge on prescription painkillers, but heroin overdoses are also on the rise nationwide. While the CDC does not keep close track of heroin overdose deaths, heroin was mentioned on death certificates 2,103 times in the United States in 1999; in 2010, the drug was cited on 3,094 death certificates.

While overdoses are down so far this year in Sangamon County, according to Edwards, no one is prepared to predict the future. The upward trend is alarming enough that the coroner’s office in Cook County, where opiate overdose fatalities rose from 357 in 2010 to 458 last year, is planning detailed testing to pinpoint whether heroin or some other type of opiate was responsible in future overdose deaths.

Cops don’t need to visit a morgue to know that smack is back. Since March, Sangamon County sheriff’s deputies have seized 15 grams, more than half an ounce, in five incidents, according to undersheriff Jack Campbell. The folks getting busted are not usual suspects.

“These are all new people to us,” Campbell said. “The bulk of this has come in the last 30 days. We’ve seen a surge. … We believe (sellers) are addicts who are doubling down as dealers.”

Springfield defense attorney Jon Gray Noll has noticed the trend.

“I hadn’t seen it (heroin) since the 1970s and suddenly it’s all over the place,” Noll said. “It’s back with a fury.”

Campbell and other cops theorize that druggies are switching to heroin from methamphetamine because statutes restricting sales of meth precursors have made it difficult to obtain meth. Others, however, point to an astronomical rise in prescriptions for legal painkillers that produce heroin-like highs and say that people are switching from legal drugs to smack.

“People who are into stimulants are not into opiates, and vice versa,” says Daniel Bigg, executive director of the Chicago Recovery Alliance that provides clean needles, testing for HIV and other diseases and help in finding drug treatment for those who want it.

The federal government has cracked down on doctors who prescribe painkillers in large quantities. Drug manufacturers have altered formulas so that it is harder to crush up pills meant for oral ingestion and inject them. Heroin is also cheap. Springfield police during the past year have responded to overdose calls in which $20 doses nearly proved fatal. It amounts, Bigg says, to a prescription for a heroin epidemic.

“As availability (of prescription drugs) goes down, heroin is shooting up,” Bigg says. “The demand is there. People have always met the demand. … I’ve seen how the heroin epidemic has gone through the years. It’s an us thing, not a them thing.”

There is no template for today’s heroin user. In May, Taylorville police reported finding heroin and syringes while searching the home of Richard Ruff, former director of the Christian County Health Department, and his wife, Sara, an attorney who promptly surrendered her law license and entered rehab. South of Springfield, former St. Clair County Circuit Court Judge Michael Cook is facing heroin possession charges filed after Joseph Christ, also a St. Clair County judge, died from a cocaine overdose at a Pike County hunting cabin in March. Cook was the only other person present.

Springfield police in recent months have responded to overdoses in virtually every neighborhood, from the outskirts of Leland Grove, where the 22-year-old son of a lawyer overdosed in March, to a north end mobile home from which a 59-year-old woman was rushed to a hospital in January. Both survived.

Not everyone is so fortunate. And when someone dies, the consequences can be lifechanging for those who survive.

Prosecutors get tough

The General Assembly in 1989 gave prosecutors a powerful weapon in the war on drugs by creating a new crime: drug-induced homicide.

Intent doesn’t matter, nor does profit.

Prosecutors need only prove that a defendant supplied an overdose victim with the fatal drug, be it heroin, cocaine, Xanax or any other controlled substance for which there is not a prescription. The penalty is steep, between six and 30 years in prison.

It was a charge rarely used in the years after it hit law books, thanks largely to the quantity of drugs needed to make a case. Prosecutors had to prove that a person had delivered a large amount of a drug – 10 grams, nearly one-third of an ounce, in the case of heroin or cocaine – to win a conviction.

The charging threshold plummeted in 2002, when the legislature removed all quantity provisions from the statute so that a person could be sent to prison for supplying any amount of an illegal drug to someone who died of an overdose. And charges started trickling into courthouses.

It remains a relatively rare charge. Just 33 people are doing time in state prison for druginduced homicide, with at least 19 imprisoned for providing heroin as opposed to other drugs. By and large, they are not coming from big cities.

Just two inmates convicted of drug-induced homicide are from Cook County, which has, by far, the highest number of fatal overdoses in the state. On the other end of the spectrum is Franklin County, population less than 40,000, which has four inmates doing time in state prison for drug-induced homicide. That’s the highest number from any single county in the state.

“Franklin is where?” asks Bigg. Deep in southern Illinois, Franklin County is about 100 miles southeast of St. Louis. Franklin County state’s attorney Evan Owens did not return a phone call to discuss his office’s remarkable success at sending people to prison for drug-induced homicide. According to media accounts, the four cases involved prescription painkillers – methadone, Dilaudid, fentanyl and OxyContin – that are also popular with heroin users.

Bigg said he isn’t surprised that most inmates doing time for drug-induced homicide come from rural or suburban areas. Despite multiple phone calls, no one from the Cook County state’s attorney’s office agreed to an interview to explain the relative rarity of druginduced homicide charges from the county with the highest number of overdose deaths. Bigg says that he believes that prosecutors in the Windy City have concluded that they have better ways to spend limited resources than going after people who supply drugs to customers eager for the product, and he points out that heroin is often provided by friends and fellow users who are simply sharing, not profiting. It’s a different story downstate, he says.

“They believe they can arrest their way out of a drug problem,” said Bigg, who condemns such tactics. “Somehow, this law got a life of its own.”

No apologies

In southern Illinois, home to the St. Clair County judge who died of a cocaine overdose in March during a weekend at a Pike County cabin with another judge who has been charged with heroin possession, prosecutors vowed two years ago to get tough. Anyone who provides drugs to people who die of overdoses should expect to go to prison, declared Stephen Wigginton, U.S. attorney for the Southern District of Illinois in a 2011 press conference with St. Clair County state’s attorney Brendan Kelly and Madison County state’s attorney Tom Gibbons.

“Our goal is simple: to reduce the number of heroin overdose deaths and prosecute those persons who distribute illegal drugs that result in the death of another,” Wigginton told The Riverfront Times, a St. Louis weekly newspaper, in a 2011 interview. “Under my direction, we’re now taking (the) lead in coordinating with state and local agencies to prosecute drug dealers who cause the overdose death of another person. … It’s an enhanced strategy. It’s been in the books for several years, but we’re now using that statute as one of the tools in our toolbox to fight crime.”

Since 2011, Wigginton’s office has charged at least five people with providing heroin to people who died of overdoses, and conviction on federal charges brings a minimum sentence of 20 years, more than twice the minimum sentence under state law. Wigginton, who did not return multiple telephone calls for comment, has not indicated whether he will similarly charge a man who has admitted selling cocaine to the judges shortly before they went to the Pike County cabin where one died of a cocaine overdose.

James Fogarty, a St. Clair County probation officer who told an FBI agent that he sold cocaine to the drug-using judges shortly before the fatal overdose, is now charged with possessing cocaine with intent to distribute. As a first-time offender, he would be eligible for probation if he is convicted.

Meanwhile, lesser known people are facing life sentences.

In central Illinois, the Peoria division of the U.S. attorney’s office headquartered in Springfield last month in a single case charged five people with heroin trafficking that resulted in death or serious bodily injury. If convicted, they’ll each spend at least 20 years in prison and could receive life sentences. In addition, prosecutors in March filed federal charges against a Pekin man who stands accused of providing heroin that killed three people, and he, too, is facing much steeper consequences that he would under state law.

“We are seeing an increase in heroin and we’re increasing our prosecutions for heroin,” said James Lewis, U.S. attorney for central Illinois based in Springfield.

Local case heads to trial

In Sangamon County, state’s attorney John Milhiser is preparing for what would be the county’s first trial in a drug-induced homicide case.

Gary R. Clark of Springfield is the second person charged with drug-induced homicide in Sangamon County since the General Assembly relaxed charging standards more than a decade ago. Ernst Kirkwood, the first person charged for drug-induced homicide in Sangamon County Circuit Court, had his 2004 case transferred to federal court, where he pleaded guilty to lesser charges after his lawyer raised questions about police misconduct.

Clark was charged after Daniel Buehrle, 43, was found dead of a heroin overdose in a vehicle parked at Southwind Park last October. State’s attorney John Milhiser said that Clark has been linked to two other overdoses.

“I can’t tell you why it’s a rare charge other than in this specific instance, we had, over the last year, an increase in heroin overdoses,” Milhiser said. “Based on the evidence collected, it was appropriate to charge Mr. Clark in this case. … If we have these individuals who are going to deal heroin, which is an incredibly dangerous drug, they’re going to be held accountable and responsible for their actions.”

Mark Wykoff, Clark’s lawyer, questions the constitutionality of the statute. After all, he points out, people who sell heroin to willing customers aren’t killers in the same sense as someone who pulls out a gun, points and pulls the trigger. Recent prosecutions, he theorizes, could be a byproduct of heroin’s spread through society.

“It’s not subterranean like it used to be – it’s happening to freaking normal people, man,” Wykoff said. “In an effort to send a loud and clear message to the citizens of Sangamon County that you’d better be careful when you’re playing with heroin, (charges are brought). That’s my guess.”

Paul Petty, sheriff in Pike County where Judge Cook died of an overdose last spring, said he doesn’t know why the probation officer who sold cocaine to the deceased hasn’t been charged with an offense more serious than possession with intent to distribute, but his office anticipates drug-induced homicide charges in two recent heroin overdose cases. In both cases, he said, the people obtained drugs in Springfield, then took them back to Pike County. Under the law, runners are fair game for prosecutors, even if they don’t make a dime for ferrying drugs.

“It’s the simplest statute in our legislation,” Petty said. “You read the statute and you almost go ‘whoa’ – it’s so straightforward.”

Petty says he understands why critics might question the point of prosecuting someone who provides a drug to someone who wants it.

“I think we’re testing juries or potential jurors,” Petty said. “Here’s a person who may pay for the drug and demand the drug and dies as a result. Who’s responsible for that?”

More harm than good

Bigg and other critics of prosecuting people for providing heroin to overdose victims say that the government could do a lot more good spending money on drug treatment that now goes toward prosecuting and incarcerating people for drug-induced homicide.

While prosecutors are sending people to prison, the government has been cutting drug-treatment programs. Just 10 percent of Americans with drug or alcohol problems receive treatment, according to the National Survey on Drug Use and Health. In Chicago, Bigg recalls a recent fruitless effort to find space in a drug treatment program for a pregnant heroin addict.

“We fight every day to get people into addiction treatment and it seems like they’re spending all the money to keep 30-some people locked up for something that should not be a crime,” Bigg said.

Many overdose deaths are preventable, but people die because witnesses, typically drug users themselves, are afraid to call 911, according to the Drug Policy Alliance, which cites studies showing that as many as 56 percent of witnesses to overdoses don’t call for help.

Illinois and a dozen other states have so-called Good Samaritan laws that prevent prosecutors from filing drug possession charges if someone calls 911, but the law in Illinois doesn’t prohibit drug-induced homicide charges. And so the same person who is shielded from a possession charge if he calls 911 could still go to prison if prosecutors can show that he provided the drug.

“It’s like a bait-and-switch,” Bigg says. “An officer will say to someone, ‘I’m so sorry to see your friend die – I hope to God you didn’t have to go out and buy the stuff today.’ She’ll say, ‘Yeah, it was my turn.’ Click, click – that’s all the evidence that’s needed to convict someone. If they had thrown the person in the Dumpster, nothing would have happened.”

The Chicago Recovery Alliance that Bigg helped found in the 1990s has operated openly for years, providing users with clean needles and doses of Naloxone, a heroin antidote that revives otherwise-dead overdose victims almost instantly. Police haven’t interfered, and the alliance helped lobby successfully for a 2010 state law that allows Naloxone to be given to users and others in a position to save lives when every second counts.

Since the legislature made Naloxone easier to get three years ago, at least 15 organizations have started distribution programs throughout the state. But helping addicts outside Chicago isn’t easy. Just ask Debbie, who helps run an organization that provides Naloxone, clean needles and hepatitis c tests to users.

Debbie, a pseudonym, agreed to an interview on the condition that neither the name of her organization nor the community in which it is based be identified. She points to Rockford, where a needle exchange program was shut down in 2011 after a police raid. In Belleville, the city this year won a lawsuit against Bethany Place, which distributes Naloxone and clean needles, with a judge ruling that the organization needs a permit from city officials who have long voiced concerns about the needle exchange program, even though studies have shown that such programs reduce disease. Debbie is concerned about her program’s future if it gets on the radar screen of police, whom she fears might begin busting clients for possession as they come and go, scaring away addicts who will do drugs no matter what it takes.

Even without publicity, Debbie’s program has grown dramatically. Ninety-nine people were helped in June, she says, up from just a half-dozen who received services in January.

“I think it’s word-of-mouth, people telling their friends,” Debbie said.

They are mostly young, between 18 and 25, and many have jobs, Debbie said. Fifty percent of those who agree to testing have hepatitis c. They are not happy addicts.

“They want to get off of it,” Debbie said.

“They can’t get the help they need. They hate it – they absolutely hate it.”

And they are profoundly grateful. “They are the most polite, thoughtful group of people I’ve ever met,” Debbie says.

The stories are heart-wrenching, the young addict who brought his mother in for training so that she could be given Naloxone and save his life if the need arises. In another case, a longtime addict convinced her needle-sharing son to get tested, and it turned out that he had hepatitis C, likely given to him by the woman who brought him into the world.

“I want to shake her and say ‘Don’t you see what you’re doing?’” Debbie says. “And she comes in two or three times a week for needles.”

The idea is to provide help without judging on the theory that any steps taken to reduce risks are steps in the right direction. So far this year, Debbie says, Naloxone distributed by her staff has been credited with reversing 17 overdoses. She holds no illusions. Neither her program nor jail cells are going to solve the heroin problem.

“There’s no agency or program that’s going to change the fact that people want to use drugs,” Debbie said.

Contact Bruce Rushton at brushton@illinoistimes.com.