Amid fentanyl deaths, Kris Kobach wants new drug-induced homicide laws – The Topeka Capital-Journal

Lisa Bortz didn’t understand the dangers of fentanyl before March.
A nurse, Bortz was more accustomed to the drug’s uses in a clinical setting, where it is a high-powered pain medication, often delivered via a patch.
Those same properties are what is fueling a rise of overdoses in Kansas and across the country, as it is frequently cut into other drugs as a way of increasing a high, even if someone doesn’t realize it. That makes it easy for unsuspecting individuals to overdose.
Bortz was in the midst of planning a birthday party for her youngest daughter, Jillian, when she went to work in Wichita on March 22. Hours later she got a call from her granddaughter with the news that her daughter had died of an overdose.
She began screaming and did not stop for 15 minutes. She buried her daughter on what would have been her 33rd birthday.
Now Bortz is raising one of her three granddaughters and is trying to gain a foothold in activism on the side, staying up until 3 a.m. to read about the fentanyl crisis.
“I was a little girl in the Vietnam era, and I remember every night the deaths being reported on the war and how outraged people were because of it being the Vietnam War,” she said. “Why aren’t we seeing that with fentanyl?”
She remembers her daughter as deeply intelligent, able to master new computer skills within minutes, but said those same skills helped fuel her eight-year battle with addiction.
Before Jillian Bortz’s death, her mother said she was increasingly fed up by addiction, with her battle with drug use frequently bringing her to tears and making her embarrassed to go near Lisa because of her frail appearance. When she bought heroin in March, she didn’t realize it contained fentanyl.
“Jill didn’t ask to be poisoned. She didn’t need to die,” Bortz said. “She was looking for one drug and got a weapon of mass destruction. She didn’t stand a chance.”
She said her family believes they know the individuals who sold Jillian drugs, including the fatal final dose, and want them to be held accountable.
Kansas and 20 other states have drug-induced homicide laws, meaning that a dealer can be charged with a crime if they sell drugs that lead to injury or death. The latter charge is a level-one person felony, the most serious category of crime on the sentencing grid, equivalent to rape or homicide.
Now, former Secretary of State Kris Kobach, the Republican candidate for attorney general, wants to enhance the state’s current laws to put drug dealers behind bars for longer, a move he says can serve as a deterrent.
More:As drug overdose deaths rise, Kansas lags on live-saving policies. These people want change.
But the experience of Kansas prosecutors, as well as other states, shows that drug-induced homicide laws are not always as straightforward as they might seem. Proving the crime can be difficult and there is ample debate over whether they have done anything to stem the tide of fentanyl, as more and more Kansas families have stories like that of Lisa Bortz.
“I think it’s always good for prosecutors to have powerful tools,” said Stephen McAllister, former U.S. attorney under President Donald Trump. “But even when they have them, they have to wield them carefully and with judgment. Because any powerful tool can be overused and create its own problems.”
The issue of fentanyl and the state’s opioid epidemic has become a major issue in the November elections. Kansas Republicans have tried to tie state Democrats to their national counterparts, arguing they have been weak on issues of immigration and drug trafficking that allow the fentanyl to spread.
Kobach rolled out a plan last week to combat the spread of fentanyl, centered on a proposal to add a sentencing enhancement that would parallel the state’s current drug-induced homicide law.
His proposal is different than current state law, in that Kobach wants a sentencing enhancement. This would not require prosecutors to convince a jury that a person committed a particular crime but instead ratchets up the required sentence if certain facts of a case are proven.
More:Kris Kobach is changing campaign tactics. Will it be enough to beat Democrat Chris Mann?
“If someone dealing fentanyl knows that their crime will not be treated just like any other drug trafficking crime if it results in a death and in fact will be treated at a much higher level, something coming close to some of the lower levels for homicide … then that will increase the deterrent effect of Kansas law,” Kobach said at a news conference last week.
But there is evidence suggesting prosecutors do not routinely charge drug dealers with the two crimes already on the books.
In an email, Marc Bennett, the district attorney in Sedgwick County, said he was uncertain of the exact cases where the charges were used in his county but that he believed it to be “probably less than 10.”
Proving the charge beyond a reasonable doubt can be difficult, as Bennett said they “have to be able to prove that the specific suspect provided the specific dose (where a pill or powder), that killed the victim.”
If an individual was a known drug user, this can be even more difficult, as questions could be raised about whether they could have already had drugs in their system when the death occurred or if they had access to drugs from multiple sources.
A 2013 U.S. Supreme Court ruling unanimously found that a similar federal charge could only be used if the sale of drugs resulted in a person’s death, overturning the conviction of an Iowa drug dealer who sold cocaine to a person who later died with multiple drugs in their system.
At the federal level, the charges trigger a 20-year mandatory minimum sentence. McAllister noted the charges are often useful at gaining leverage in plea negotiations or to convince low-level operatives to provide evidence against more senior members in a drug ring.
“It’s a way to really get people’s attention,” McAllister said.
Still, the charges have been employed across Kansas several times in recent months, with two separate cases of distribution of a controlled substance causing death in Reno County. Similar charges have been filed against alleged drug dealers in Pottawatomie and Douglas counties.
Reno County District Attorney Tom Stanton said intelligence from law enforcement indicated that area drug dealers stood up and took notice when he filed the two charges earlier this year.
“They’re making a profit out of it, and they should pay when people die,” Stanton said. “It should come back on them. And that’s been my position my entire career and I don’t apologize for it.”
But he was uncertain as to whether Kobach’s idea of creating an enhancement would actually do much to move the needle, saying he would need to see an actual legislative proposal.
“Without having heard the arguments or hearing statements about how that would be applied, it’s really difficult for me to see how any other kind of enhancement would be either easier to apply, or more effective,” he said.
There is a debate, however, as to whether drug-induced homicide laws actually serve their intended purpose as a deterrent.
Law enforcement agencies routinely point to the charges in presentations to school groups and news releases on drug use.
Still, overdose deaths have still risen markedly. Data from the Kansas Department of Health and Environment shows opioid-related fatalities increased by 73.5% between 2011 to 2020.
More:Kansas has sharpest increase of overdose deaths in U.S. But lawmakers block fentanyl test strips expansion
Half of all overdose deaths in 2020 were due to opioids and a majority of those deaths were attributed to synthetic opioids, such as fentanyl. 2021 saw a 115% increase in synthetic opioid overdoses year-over-year, on top of a 130% rise from 2019 to 2020.
National data underscores similar trends. Two-thirds of all overdose deaths across the United States in 2021 were from fentanyl, according to the Centers for Disease Control and Prevention.
Research on the role drug-induced homicide laws play, however, is inconclusive.
A study from Penn State University found some evidence the charges do reduce opioid mortality. Other research indicates that the laws may increase the risk of fatalities by making individuals less likely to dial 911 to report an overdose, though Kansas lacks a so-called “Good Samaritan” law protecting those individuals from prosecution anyway.
Leo Beletsky, of Health in Justice Action Lab at Northeastern University, said that it is difficult for the laws to serve as a deterrent because their uneven use makes it difficult for an individual to predict whether they might be charged or not.
“Widespread adoption and aggressive enforcement of punitive drug laws have done little to reduce drug-relatedharms,” Beletsky wrote in a 2019 paper on the subject.
And there is evidence to suggest that those often charged under the laws are family members or loved ones of the person who died of an overdose.
More:As meth prices drop amid high supply, KBI director says focus should be on reducing demand for drugs
Stanton, of Reno County, said, in his experience, Kansas’ drug-induced homicide charges have not been used to prosecute family members or friends of a drug user.
But it was important, former U.S. attorney McAllister said, for prosecutors to employ discretion in these cases, saying they easily can be used in ways that can be considered unfair or counter-productive.
The risk for policymakers is to repeat the so-called War on Drugs, where domestic policies were put in place over the last half-century to increase penalties for drug possession and distribution. Those efforts have been assailed as discriminatory against communities of color and the root cause of rising incarceration rates, with little impact on drug use.
The United States, McAllister said, has “not prosecuted our way out of drug problems” in the past and is unlikely to do so in the future without other policy endeavors, such as better education and the use of public health tools, such as fentanyl test strips.
“You could refill the prisons and still not put much of a dent in the drug traffic or the overdose deaths,” McAllister said. “The prosecutions are expensive, and there’s not clear evidence that they’re really an effective deterrent. And every time you take one cockroach off the street, it seems like many more do pop up.
“I think it’s harder, but we’ve got to tackle the demand side and the public health side.”


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