When 24-year-old Jarret McCasland left the home of his girlfriend, Flavia “Cathy” Cardenas, 19, in the early morning hours of July 26th, 2013, he had no reason to think anything was really out of the ordinary.
The pair, who habitually used drugs together in their town outside of Baton Rouge, Louisiana, had spent the night ingesting a variety of substances at the home of Cardenas’ friend, Christina Garman. (Garman has said McCasland injected Cardenas with both heroin and cocaine; McCasland only admits to cocaine.) After leaving the friend’s house, as he later said, McCasland stopped to meet Cardenas’s drug dealer, “T,” who fronted her more heroin on credit. The couple then went back to the house Cardenas lived in with her mother Nancy Landa, where, as Landa later testified, the two quarreled before growing quiet. Jarret said in his statement to police that he was going to inject Cardenas with heroin in her room, but Cardenas got impatient and ended up injecting herself. He went home around 2 a.m. Around the time Jarret left, Landa spoke with her daughter, agreeing they’d talk in the morning. Landa checked on her once between 3 a.m. and 4 a.m. and found her snoring, which she said was a normal occurrence.
Around 9:30 or 10 a.m — reports differ —Cardenas’s mother found her unresponsive. Landa called a neighbor, Joaquin Jule, who came over and called 911, and also performed CPR. Cardenas was rushed to the hospital. At 11:33 a.m., Cardenas was pronounced dead.
No one told McCasland any of this. He’d never had a good relationship with Landa, and Garman — who would later testify against him — did not contact him. When his calls and texts to Cardenas went un-returned, McCasland thought either Landa had sent her to live with her father, as she’d threatened to do, or that she’d gotten back with her ex-boyfriend. Jarret saw a memorial post about Cardenas on social media, but thought it might just be a terrible joke. It was not until a full two weeks later, when the police brought him down to the station for an outstanding traffic violation and began questioning him about the night of Cardenas’ death, that he found out for sure that his girlfriend had died. McCasland was subsequently arrested and charged with second-degree murder under Louisiana’s drug-induced homicide statute, which states that someone can be charged with murder if he “unlawfully distributes or dispenses” a drug “which is the direct cause of the death.”
According to the Drug Policy Alliance, there is no evidence these laws have done anything to prevent overdose.
Jarret McCasland is just one casualty of a trend in law enforcement that recently merited an entire report from the harm-reduction advocacy group Drug Policy Alliance, investigating the prosecution of people under these so-called Drug-Induced Homicide laws. Some DIH statutes were signed into law during the War on Drugs’ 1980s heyday and are now being dusted off in response to the opioid crisis. Others are more recent, with some targeting the synthetic opioid fentanyl, which is sometimes mixed with or packaged as heroin. To date, 20 states have DIH laws on the books. According to the DPA, there is no evidence these laws have done anything to prevent overdose deaths, and furthermore, critics say, they could even make the problem worse by discouraging people from seeking medical attention for those who need it.
While some lawmakers claim these laws target drug kingpins who profit off addiction, they’re more often used to prosecute close relations of the deceased — who are often drug users themselves — or small-time dealers who sell to support their own habits. “Out of the 32 drug-induced homicide prosecutions identified by the New Jersey Law Journal in the early 2000s,” notes the DPA’s report, “25 involved prosecution of friends of the decedent who did not sell drugs in any significant manner.” The report included findings from a Chicago Tribune review of drug-induced homicide cases from 2011 to 2014 in a number of Illinois counties, which revealed, as the DPA wrote, “the defendant was typically the last person who was with the person who overdosed.” Two friends can do heroin together, and if one dies, the grieving survivor can be charged with their friend’s murder and locked away for life.
And that’s essentially what happened to McCasland. Jarret was accused of giving Cardenas the drugs that killed her. But as his lawyer pointed out in court, there were major holes in the prosecution’s timeline, as a typical overdose takes far fewer than nine hours to kill someone. An expert witness for the defense also pointed out that Cardenas had a “soup of very dangerous” drugs in her system when she died — and the doctor who performed the autopsy said he’d found a fresh puncture wound on her arm, so it was impossible to say whether the heroin Jarret was accused of injecting her with was the “direct cause” of death. (The difficulty in determining which drug was the “direct cause,” and what that even means, is an issue in many DIH prosecutions, as overdose deaths often involve a mixture of drugs.)
As the defense noted, Cardenas had a documented history of drug use, including an overdose hospitalization that pre-dated her relationship with McCasland. Still, with the help of Garman’s vivid testimony — some of which was portrayed by the defense as being inconsistent with her initial statement to police — the prosecution portrayed McCasland as a jealous, drug-pushing boyfriend who used heroin as a “truth serum.” Local press gladly ran with this story.
A jury convicted McCasland of second-degree murder under the state’s drug-induced homicide statute, which carries a life sentence.
Making matters worse for McCasland, the prosecution used an old drug charge (not a conviction) and photos the police found in McCasland’s phone of marijuana, crystal meth and McCasland holding money, to portray him as a drug dealer. They also presented text messages in which Jarret seems to be offering to sell drugs to someone. (Jarret’s father, Doug McCasland, maintains the money in the photos was from an insurance settlement.)
After a brief deliberation, a jury convicted the 26-year-old of second-degree murder under the state’s drug-induced homicide statute, which carries a mandatory sentence of life in prison without the possibility of parole. “It’s the only thing on our minds,” says Jarret’s father Doug, of his son’s situation. “We constantly try to figure who we can contact, what we can do, how to help him.”
“It’s so heartbreaking,” says Lindsay LaSalle, senior staff attorney in the DPA’s office of legal affairs. “I’ve seen a couple cases now where it’s a parent and a child… a lot of husbands and wives as well. You’re talking about people who have used together [as] part of their relationship, who are then painted like this really monstrous drug dealer because they bought the heroin that day.”
While these laws threaten addicts with draconian penalties simply for being in the wrong place at the wrong time, they have done nothing to deter people from doing drugs or stem the tide of overdose deaths in the U.S. Nationwide data isn’t available on DIH prosecutions, but according to the DPA’s report, media mentions increased over 300 percent from 2011 to 2016, from 363 news articles in 2011 to 1,178 in 2016. According to the New York Times, in 15 states where they were able to find data, there were over 1,000 prosecutions or arrests based on accidental drug overdose deaths since 2015 — a number that nearly doubled between 2015 and 2017. But despite this increase in prosecutions, the opioid crisis has continued to grow, and its growth has been accelerating.
One thing this policy may impact is people’s willingness to seek life-saving medical assistance. In a small nod to the harm reduction approach, 40 states and Washington, D.C. have passed “good Samaritan” laws that limit the criminal liability of those who call 911. DPA researchers found again and again that witnesses cited “fear of police involvement” as the primary reason they delayed calling for help, or didn’t call at all. “It greatly undermines a good faith effort of elected officials in states which have passed Good Samaritan laws,” says LaSalle. To date, only two states — Vermont and Delaware — offer protection from DIH prosecution for those seeking medical assistance for overdose patients; most states only shield 911 callers from prosecution for minor drug charges. “No one cares that someone gets immunity from drug possession if they know that they can be prosecuted for murder,” notes LaSalle. “It’s the great irony, I think, of these laws, because not only do they not help the problem, they actually exacerbate it.”
The DPA report contains a two examples of people who called 911, only to be charged in their loved ones’ deaths.
This is not an unfounded fear The DPA report contains the stories of two women who called 911, only to be charged in their partners’ deaths, and that of a man who didn’t seek help for fear of prosecution, then was later hit with harsh charges and sentencing in large part because he failed to seek medical assistance. “The prosecutor holds them up as being especially culpable because they abandoned the overdose victim, when in fact that is a reliable outcome of these types of laws,” notes LaSalle. She adds that the stigma resulting from the criminalization of drug addiction can also discourage people from seeking treatment.
Correlation does not necessarily mean causation, but there’s some evidence these policies are contributing to troubling behavior around overdoses. Notes the report, “key informant interviews in Illinois have revealed that many people who use drugs are scared to call 911 in counties where drug-induced homicide prosecutions are more common, which may be increasing the fatal overdose rate in these counties.”
At the very least, these policies correlate with negative behavior. A 2016 report from the Baton Rouge Advocate identified a trend of people dropping overdose victims off at the hospital, only to speed away without providing any information. “They’ll just pull up, unload them and then the car drives off and we’ll never see them again,” Dr. Johnny Jones, an emergency-room director for Baton Rouge General Medical Center, told the paper. More studies are needed to prove this is related to the 580-percent uptick in media mentions of DIH prosecutions in Louisiana since 2011, including high-profile cases like McCasland’s. But considering what’s at stake, harm-reduction advocates want policymakers to weigh the potential negative outcomes of these prosecutions against the “positive” of holding drug users accountable for their friends’ deaths.
Given the preponderance of evidence that this type of policy can be counterproductive, why do states continue to pursue it?
Some of those engaged in pursuing DIH prosecutions admit they’re approaching it based more on principles than outcomes. One official who’s been particularly committed to DIH prosecutions is Tom Gibbons, the state’s attorney in Madison County, Illinois, which sits just across the river from St. Louis, Missouri. “We intend to absolutely make an example of these people in public,” he said shortly after appearing at a 2011 press conference announcing an initiative to investigate every overdose death as a homicide. “I want to scare people from getting into this. I want to give them the fear of becoming the soulless people addicts become.
Seven years later, Gibbons doesn’t stand behind his use of the word “soulless” to describe addicts, but otherwise does not waver. While he has no evidence that DIH prosecutions are acting as a deterrent in his state, which has faced a steady increase in overdose fatality rates each year from 2013 to 2016, he says it’s his responsibility to hold people accountable for deaths they had a hand in causing. “The causing of death by whatever means triggers a responsibility by us as a society to address it,” he says. “The hope is that holding people accountable will reduce its incidence, but I’m not required to prove that it reduces the incidence. I can’t prove that prosecuting people for murder will stop people from murdering people, and yet, I’m still going to prosecute people for murder by whatever means.” (Gibbons does say he’d “certainly consider” any evidence tying DIH prosecutions to an increase in overdose deaths, although it would “take quite a bit” to convince him.)
There’s some evidence these policies are contributing to troubling behavior around overdoses.
Gibbons is quick to note that prosecution is just one part of a multifaceted effort to fight addiction in his state that also includes education, like when Gibbons speaks to groups of school children about the dangers of addiction; treatment, like a recently launched website that will connect people with local resources; and harm reduction, like a program to distribute Narcan to cops. Asked if he sees any conflict between these more empathetic measures and laws that threaten people with stiff sentences if they call first-responders and are found at the scene of an overdose, he replies, “The world is full of conflicts.”
The political pressures around DIH prosecutions are complex. Perhaps due to the perception of the opioid crisis as a largely white, suburban phenomenon, policymakers initially made concessions, at least in theory, to harm reduction not seen during previous drug epidemics. But those limited measures did not produce immediate results — they had the rhetoric, but not funds or implementation — so the pressure returned for law enforcement to tackle the problem the only way it knows how.
Doug McCasland believes these political pressures contributed to his son’s situation. As he points out, the DA overseeing Jarret’s case, Hillar Moore, was up for reelection in the run-up to the trial. “They wanted someone to make a poster child out of,” he says. “That was his war on crime. What happened was, all of a sudden heroin come into Baton Rouge, so he was pressured to do something. So he picked one person out of all that happened and that was Jarret.” (Moore did not respond to multiple requests for comment.)
This points to another issue with DIH laws: They give too much leeway for prosecutorial discretion, which opens the door for racial bias, arbitrary example-making and uneven enforcement from district to district. Two prosecutors might look at the same case and decide to bring wildly different charges, and a third might dismiss it entirely as a waste of resources. (Richard Callahan, at the time the U.S. attorney in the Missouri district across the river from Gibbons’, called the federal DIH statute “a heavy hammer” that should rarely be used.) Two men with similar charges were allowed to plea down to lesser charges around the same time, which, Moore said at the time, was in part because no one had witnessed them administering drugs to their friends. When it came to McCasland, Moore pursued the maximum penalty.
The DPA’s report also includes troubling statistics on racial disparities in DIH prosecutions. And of course, prosecutorial discretion often points to the easiest-to-nab people, a.k.a. those closest to the deceased.
One person who intimately understands the pain of losing a child is Maryland artist Peter Bruun. While staying at a treatment center in North Carolina, his daughter Elisif convinced her friend Sean Harrington, a homeless addict in Philadelphia, to send her heroin in the mail. Elisif used the drugs, overdosed and died. (Bruun says that Elisif had both heroin and cocaine in her system, but Harrington only admitted to sending heroin.) Bruun says the detective assigned to the case contacted their family and asked them how they felt about the fact that she was investigating their daughter’s death as a homicide. “I said, if this person is somebody with an addiction — as Elisif had an addiction — then that person really ought to have the opportunity to have treatment,” recalls Bruun.
“They wanted someone to make a poster child out of,” says McCasland’s father.
The Bruuns didn’t hear anything else until the center’s program director called to tell them Harrington was being extradited to North Carolina to face a second-degree murder charge. The media soon began covering it. “We were horrified at the framing of the coverage,” relates Bruun, “in terms of presenting Sean Harrington as something less than human, you know, the whole perp thing, and scum of the earth. These were really stigmatizing news stories. And we were presented as the victims that they were standing up for.”
Bruun felt uncomfortable with the role his family had been cast in: Victims who’d be served more justice the more Harrington was punished. “It was presented like it was this really good thing, that he might be put away for 52 years, which is just horrific,” says Bruun. “We also knew that our daughter Elisif, she would not want this — there’s no way in the world she would want this.”
In an act of compassion, the Bruun family contacted Harrington’s family and offered to serve as witnesses for the defense. Bruun also began a correspondence with Harrington while he was in prison awaiting trial. Largely as the result of this non-cooperation, he says, prosecutors dropped the murder charges against Harrington and he was released after 22 months in prison. Harrington has since worked with Bruun on his New Day Campaign, which uses public events and art to reduce the stigma around addiction and other mental health problems. A stigma that, as the report notes, most likely has a body count.
Bruun says he has sympathy for parents who want to hold someone accountable for their children’s deaths. “What I can tell you is that when you lose a child, you have very little control, not only over how you feel, but what you do,” he explains. “I don’t blame those who lose children for having responses.” But he doesn’t think that justifies harmful policy. “The issue that I have is the criminal justice system being driven by those emotions,” he says. “Vengeance and anger and seeing someone else locked up is not going to return your child. And it’s not going to help you feel any better.”