- The Washington Times - Tuesday, February 19, 2019

Law enforcement officials in western New York now will treat drug overdose sites as crime scenes, pushing police to collect more information from each incident in hopes of building more serious cases against those who sell the drugs.

The first-of-its-kind initiative was launched this month in Erie County, New York, home to Buffalo, the state’s second most populous city. Like many other older industrial cities, Buffalo has been ravaged by the nation’s opioid epidemic.

Officers who respond to fatal and nonfatal overdose calls will have to input specific investigative data into their patrol car computers and follow new evidence-gathering procedures for processing the scenes, noting 11 unique pieces of information such as the drugs’ packaging.

Authorities hope to link multiple overdoses to a single dealer based on those details, enabling prosecutors to pursue more stringent charges against dealers, including homicide if an overdose results in death.

“The evidence collected at these overdose scenes are critical to prosecute those who peddle this poison under enhanced penalties,” James P. Kennedy, U.S. attorney for the Western District of New York, told The Washington Times.

An overdosing user will be seen as the victim and the dealer as the perpetrator in what has become a framework for law enforcement’s role in combating the opioid crisis.

“Treatment represents the appropriate way to deal with those addicted to these poisons,” Mr. Kennedy said. “Prosecution represents the appropriate way to deal with those drug dealers addicted to the profits generated by their spewing this poison into our community.”

A case brought before the procedures were in place shows what is possible: Federal prosecutors won a 20-year mandatory minimum prison sentence against Carlique DeBerry, who was convicted of selling fentanyl-laced heroin to a repeat customer in 2016. The drug user’s mother found him hours later, slumped in a chair, dead from an overdose.

Mr. Kennedy said the DeBerry sentencing highlights the effectiveness of the overdose-scene protocols. Investigators used evidence collected at the crime scene to convict DeBerry on the charge of distributing fentanyl, causing death. Although not a formalized process at the time, the techniques used in that case will be required under the initiative, the federal prosecutor said.

The region already has made progress in fighting the opioid crisis. Fatal overdoses in Erie County fell from more than 300 in 2016 to 251 in 2017. Preliminary numbers for 2018 show fewer than 200 fatal overdoses.

Drug policy analysts worry that the procedures will turn dealers into hard-core offenders rather than violators of lower-level drug offenses. It also could end up snaring users who share their supplies with others.

“The vast majority of these cases are family and friends who shared drugs with the person who overdosed,” said Alex Kreit, a professor at the Thomas Jefferson School of Law in San Diego. “There is no evidence these prosecutions have any kind of positive impact.”

Mr. Kreit said low-level dealers often have no idea when drugs contain fentanyl or other deadly substances.

Mr. Kennedy acknowledged that identifying whom to prosecute and on what charges can be “hard and difficult decisions.” In a recent case, an addict who fatally overdosed on fentanyl obtained the drugs from a friend who was also a user. The U.S. attorney filed charges against the dealer but declined to pursue a case against the victim’s friend, he said.

“It is not a bright line. We make a case-by-case determination,” the prosecutor said. “It can be difficult, but it is not as difficult as it seems in the abstract. It is generally not the largest drug traffickers who are doing drugs. They know this stuff is very dangerous.”

David Herzberg, a drug policy researcher at the University of Buffalo, said the lack of a bright line can make it difficult to figure out under which category to classify a drug supplier.

“Someone who is addicted themselves is selling because that is the economy for which they are best suited,” Mr. Herzberg said. “By separating drug users as victims and drug sellers as criminals, we are creating a boogeyman that is responsible for these deaths and thinking we can protect ourselves by prosecuting them.”

Mr. Kennedy predicted a “great outcry” from victims’ families if no one is ever held responsible for their loved ones’ deaths.

He said the Erie County initiative does have a treatment component.

Information gathered at nonfatal overdose scenes will be entered into the national ODMap program, a real-time, GPS-mapping system that tracks overdoses and the use of naloxone, the overdose-reversing medication.

Drug treatment officials in Erie County will able to send the data to overdose victims and even schedule appointments for treatment.

Joshua Lynch, a medical assistant treatment specialist for the Erie County Health Department, said it’s possible to prosecute as well as treat addicts.

• Jeff Mordock can be reached at jmordock@washingtontimes.com.

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