New Strategy To Fight Opioids Epidemic: Criminal Charges For Drug Dealers In Deaths By Overdose

Jun 22, 2017
Originally published on June 22, 2017 10:51 pm

Ty Hernandez was mending a broken heart when he felt a cold coming on.

His mom, Peggy, did the mom thing.

“You’ve got to rest and drink fluids.” she said. “The next morning, I left a note on the counter with some chicken noodle soup and said, ‘I hope you feel better. Call me if you need anything.’ And I went to work.”

Ty, 22, had recently broken up with his girlfriend in Maine and moved back in with his folks. Their house sits on a lake in a leafy subdivision in Wellington.

Ty’s mom was glad to have him back.

“We got home at 5:30,” said Peggy Hernandez. “And I noticed that nothing was messed with on the counter.”

She went upstairs to check on him.

“I opened the door and I found him on his bed — dead,” she said. “Cold and dead.”

Under Ty’s body:  a charred scrap of aluminum foil, a lighter, and the hollow tube from a ballpoint pen. Tools for smoking heroin.

Ty had died of an overdose. But not heroin.

“It was full strength, 100 percent fentanyl,” she said.

[Read more: Sunny Daze, Inside South Florida's Opioid Crisis]

According to a recent state medical examiners’ report, fentanyl, a powerful synthetic opioid, killed more than 700 people in Florida in the first half of last year — more than any other drug.

It’s over 50 times more potent than morphine. The deadly nature of the drug prompted state lawmakers to take action this year. Now Florida law allows people who distribute a fatal dose of fentanyl to be charged with ‘drug-induced homicide.’

And law enforcement is getting the word out to drug dealers.

Lake County Sheriff Peyton Grinnell recently put out a public service announcement on YouTube.

“Enjoy trying to sleep tonight wondering if tonight's the night our SWAT team blows your front door off the hinges,” said Grinnell.

He stands staring into the camera, flanked on either side by four motionless deputies in ski masks.

“If our agents can show the nexus between you — the pusher of poison — and the person that overdoses and dies, we will charge you with murder,” said Grinnell. “We are coming for you. Run.”

Drug-induced homicide laws are not new. More than 20 states have them. Most were put on the books decades ago during the height of the war on drugs. But prosecutors are now dusting them off to combat the raging opioid epidemic.

The charges are often hard to prove, but in Ty Hernandez’s death, the evidence was jumping out at them.

“Ty’s phone was just ringing off the hook,” said Peggy Hernandez. “This name kept popping up: Slim. Slim. Slim. Texting: ‘Dude — where's my money?’ ”

[Read more: Chinese Fentanyl Fueling U.S., Florida Overdose Crisis]

Ty Hernandez owed Slim $40 for the drugs that killed him. And Slim wanted that money. He wanted it so badly he was willing to take it from an undercover cop.

“He said, ‘I'm a friend of Ty’s. His family found that he was doing drugs. They put him in rehab. Here's your $30,’ ” said Peggy Hernandez. “And he goes, ‘No. It wasn't $30. It was $40. ”

That comment and other evidence led a federal jury in Palm Beach County to convict Slim, a 24-year old Lake Worth drug dealer named Christopher Massena, of drug-induced homicide for selling Ty Hernandez the dose of pure fentanyl that took his life.

Massena was sentenced to 30 years in prison.

The expanded Florida statute now gives state prosecutors the same heavy hammer that was used at the federal level in the Hernandez case. Palm Beach County State Attorney Dave Aronberg says they need it.

“The person who is spreading this poison needs to be held accountable,” said Aronberg. “And that will mean handcuffs and long prison sentences.”

But a report by the Drug Policy Alliance says there is no evidence that drug-induced homicide laws reduce overdoses or drug use.

“We’re playing a drug war game of whack-a-mole,” said Art Way, director of criminal justice reform for the Drug Policy Alliance. “It shows that we have not yet attempted to do the difficult thing and address drug dependency from the demand side.”

The report says drug-induced homicide laws often ensnare friends or family members who were just sharing their drugs, not professional dealers.

Critics also say the harsh statutes undermine “Good Samaritan” laws meant to encourage people to call 911 when someone is overdosing.

“We see situations where people leave the home and call 911 from a pay phone or from another home because they're concerned about prosecution,” said Way. “When you add murder to that mix, you're only increasing that dynamic and driving things further and further underground.”

But State Attorney  Aronberg said his office has seen no instances where Florida’s drug-induced homicide law has discouraged anyone from calling 911. And as far as charging friends or family members who were only sharing drugs, Aronberg relies on the judgment of his prosecutors.

“That's why we have prosecutorial discretion,” said Aronberg. “I trust prosecutors to make the right decisions in these cases.”

[Read more: 'Dime A Dozen,' Overdose Crisis Rages In South Florida]

For moms like Peggy Hernandez, punishing drug dealers and getting them off the street remains the No. 1 priority.

She lost her son to fentanyl, but another mom lost her son to prison.

“I feel for her. I hurt for her,” said Peggy Hernandez. “But unlike me, she still can hug her son if she chooses to. She can still go see her son if she chooses to. She can call and talk to him on the phone if she chooses to. I don't have that.”

Peggy Hernandez hopes state officials name the drug-induced homicide statute “Ty’s Law” after her son.

In a more recent case, prosecutors charged three Jacksonville-area men with drug-induced homicide last month for the death of an 18-year-old woman.

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