‘My Whole Life is Gone’

Prosecutors are increasingly reframing overdose deaths as murder.

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When Kirsten Lippold awoke to the shrill ring of her cell phone on August 17, 2015, she had no idea that taking the call would destroy two lives.

“Please, I’m so sick,” begged the caller. “Please, can I come see you?”

Her name was Jennifer and she was suffering from heroin withdrawal. Lippold herself had struggled with heroin addiction for twenty-five years, and her heart went out to the woman. The two were neighbors, but had never actually met.

“Of course,” Lippold replied. “Come on over.” She later sent Jennifer a confirmation text.

Less than an hour later, Jennifer came to the apartment, an old Section 8 housing complex in Boulder, Colorado. This is where Lippold, forty-five years old, lived alone, barely getting by on her monthly $189 disability check. She’d been on disability since 2006, when a brain injury nearly killed her. It took months of therapy for her to learn how to walk and talk again.

To assuage the withdrawal symptoms, Lippold gave Jennifer less than a gram of heroin from her own personal-use supply. She wasn’t a regular dealer, but occasionally she sold off some of her own supply to friends. Jennifer paid $40 and left immediately. The next knock Lippold received on her apartment door occurred later that day. It was the police.

“I opened the door and someone from the Boulder [County] Drug Task Force was there,” Lippold recalls. “He told me that Jennifer had died of an overdose and they were conducting an investigation. He said not to worry, that nothing would happen to me as long as I cooperated and told the investigators who I bought my heroin from. I was scared. So I told them.”

Nearly two years later, on the morning of July 17, 2017, the agent from the Boulder County Drug Task Force was back again. This time, he had several federal agents and officers from the Boulder Police Department in tow. The officers arrested Lippold and charged her with “distribution of heroin resulting in death”—a charge that in Colorado can carry a minimum sentence of twenty years to life.

“My chin hit the floor,” Lippold says. “[They] told me to get my meds together and they took me to the federal courthouse in Denver.”

The judge, recognizing that Lippold’s disability made her unlikely to flee, released her without bail; a trial date was set for 2018. Lippold went home, contemplating the idea of decades to life in prison for the death of a woman she had barely known.

Lippold went home, contemplating the idea of decades to life in prison for the death of a woman she had barely known.

“I helped her because of my own addiction,” says Lippold, who starts to sob over the phone as she speaks to me from prison. “I understood. She was begging me because she was so sick.” She feels bad for Jennifer and her family, but wonders why she should also have to lose her life.

Lippold eventually pled guilty and on August 2, 2018, was sentenced to ten years in prison.

“My whole life is gone,” she says, still crying. It is hard to hear her over the tinny sound of the jail phone. “I break out in blisters because I have been so stressed. Behind my back, people treat me like I am a murderer. I am so sorry Jen died, but I never meant for that to happen.”

The charge against Lippold, “distribution of heroin resulting in death,” falls under a broad category of drug-induced homicide laws that are increasingly being utilized in the United States to prosecute people for murder if they deliver a drug to someone who later overdoses and dies. Congress enacted the first federal drug-induced homicide law in 1986 following the death of Len Bias, a college basketball player who died of a cocaine-related drug overdose only two days after being drafted to play for the Boston Celtics.

Twenty states passed similar local laws, often called Len Bias laws. Until recently, these laws were rarely used, but the surge of opioid-related deaths over the past few years has changed that.

From 1986 to 2004, drug-induced homicide cases averaged two per year across the country. Then over a ten-year period from 2005 to 2015, the number of cases rose sharply, from nine to 162 per year. Since then, the numbers have more than doubled—264 in 2016 and 417 in 2017. These striking increases suggest that prosecutors are breathing new life into previously arcane statutes that equate accidental overdose with deliberate homicide.

Many judges, prosecutors, law enforcement officials, and members of the public support drug-induced homicide laws, arguing that the threat of harsh prosecution will deter people from selling drugs, that drug-induced homicide laws are primarily used to prosecute “kingpin” drug dealers while allowing drug users to seek treatment, and that they are necessary to render justice for the person who died.

In fact, there is no evidence that drug-induced homicide laws deter people from selling drugs.

U.S. Attorney Bob Troyer, the prosecutor in Lippold’s trial, is quoted in a Department of Justice press release as saying, “If you are selling even small amounts of heroin in Colorado, know this: Any one of your sales could kill someone. If you don’t care about that, maybe you’ll care about this: You will face mandatory minimum sentences in federal prison, out of state, no parole.”

The National Association of Attorneys General recently developed a new course to train law enforcement officers on how to respond to overdose situations. The first item mentioned under course topics is “changing the mindset from accident to homicide.” Prosecutors are actively teaching law enforcement to think of an overdose not as a medical emergency, but as a murder, and many officers are coming on board.

“When it comes to laws and deaths that have occurred, I strongly feel that some people who are dealing opiates and know there is a great possibility of people overdosing and dying . . . should be held accountable for the death that has occurred,” Sheriff John Tharp of Lucas County, Ohio, tells me in an interview. He and his department have worked with prosecutors to build several cases against people charged with drug-induced homicide deaths.

Like many in the criminal justice system, Sheriff Tharp sees these cases as tools to reduce the incidence of drug overdose and, hopefully, save lives. “Over the years,” he says, “I have seen young people steer away from drugs when they see so many people being arrested.”

But, in fact, there is no evidence that drug-induced homicide laws deter people from selling drugs.

In September 2016, twenty-one-year-old Samantha Molkenthen went on trial for reckless homicide in Wisconsin over the death of her friend Dale Bjorklund from a heroin overdose. Samantha and Dale had shared the heroin together. She was sentenced to nine years in prison and six years on extended supervision.

Assistant District Attorney Jeff Shock, who prosecuted the case, said in an interview with the Daily Jefferson County Union, “[This case] illustrates why we in the Jefferson County District Attorney’s Office prosecute these cases as aggressively as we do. It illustrates why the court uses that powerful message of deterrence to the public at large.”

The idea that sending people to prison for decades or even life will deter others from selling drugs is almost impossibly difficult to prove. In fact, research shows that merely increasing the severity of punishment for offenses has not generally reduced the incidence of crime. Most people simply believe they won’t be caught.

“I started to care less and less. Consequences didn’t matter. I needed the drugs.”

In reality, not everyone who works in criminal justice believes that drug-induced homicide laws can deter people selling drugs. Carter Stewart, who served as a U.S. Attorney for the southern district of Ohio from 2009 to 2016, recalls his frustration when members of his office pursued drug-induced homicide cases.

“When you take fifteen dealers off the street, next week there will be fifteen more,” he says. “You could boost the penalty 100 times and there will still be more dealers.”

John M. of Raleigh, North Carolina, who asked that his full last name not be used, agrees. “I can tell you right now, these laws won’t stop people from selling drugs,” he says, drawing on his own experience as a dealer. The fear of getting caught was never as great as his desire for drugs. “I started to care less and less. Consequences didn’t matter. I needed the drugs.”

Lindsay LaSalle, senior staff attorney for the Drug Policy Alliance, a national advocacy group based in New York City, created an exhaustive report on the rise of drug-induced homicide laws across the United States, based on interviews with law enforcement, prosecutors, and people charged with drug-induced homicide. It concluded that drug-induced homicide laws do not deter drug use or drug sales or prevent overdose deaths, and “waste resources that could be spent on proven treatment and harm-reduction interventions.”

In an interview, LaSalle says many of the prosecutors she spoke to admitted that they didn’t actually think drug-induced homicide laws deter drug dealing, but brought these cases anyway because they felt responsible to their constituents and the families of the people who died. She’s frustrated that prosecutors and others in law enforcement “don’t have to prove [a] rationale for the policies they put in place.”

Kirsten Lippold was arrested and charged nearly two years after Jennifer’s death. According to Lippold, this was because law enforcement first tried building a case against higher-level dealers. Initially, I was told by Lippold and one of her advocates, they hadn’t wanted to charge Lippold, who is poor and disabled and clearly suffers from drug addiction herself. But when efforts to build a case against high-level dealers fell through, they came after her.

This, in effect, is how most drug-induced homicide cases operate. For all the talk of going after “kingpins,” evidence shows that drug-induced homicide laws are rarely used to prosecute high-level dealers. A 2018 analysis of drug-induced homicide laws reveals that only 47 percent of the people prosecuted under drug-induced homicide laws actually sold the drugs to the deceased. In 50 percent of cases, the person charged was a friend, family member, partner, or caretaker, and in 3 percent of cases it was a doctor.

Brendan Cox, formerly chief of police in Albany, New York, explains that making a case against high-level drug dealers is often simply too difficult. Most law enforcement agencies don’t have the time or resources to do so. “Usually, the person running the large network has no face-to-face interaction with [the person] who overdoses and rarely, if ever, are we able to trace that packet of heroin all the way up the chain,” says Cox. “The person charged with the homicide is usually the lowest level of drug dealer or in many times the individual’s friend.”

Lippold, like many others, was simply the easiest fish to catch.

Peter Bruun of Baltimore, Maryland, understands why parents want to see someone punished when their kids die of drug overdoses, as his daughter Elisif did in February 2014. “We want to blame people because the disease [of addiction] is so ugly, and we are so powerless,” he says. “We don’t want to look at that, because there’s so little we can do about it. But we can punish a person. So we do.”

Bruun and his wife actually worked to keep the young man who provided her fatal dose from going to prison. Prosecutors, he says, wanted to charge her friend Sean Harrington with second-degree murder. He says police sought to portray him as “a hardcore predatory dealer”; they later learned he had been living in a cardboard box under a freeway.

Some drug users actually take steps to make clear that they don’t want others to be punished for their own choices.

“The last thing [Elisif] would have wanted was for Sean to get in trouble for her behavior,” Bruun says, “so for me it was about keeping Elisif’s voice alive, fighting for that, which was doing right by her rather than seeing Sean locked away for life.”

When the Bruuns would not cooperate, the district attorney’s office elected not to pursue charges for second-degree murder. Instead, Harrington pled guilty to manslaughter and was released after twenty-two months in jail. He is currently in long-term recovery from addiction and has developed a close friendship with the Bruun family.

Some drug users actually take steps to make clear that they don’t want others to be punished for their own choices.

“We have drug users coming together to write living wills that essentially say, if I die of an overdose, I don’t want anyone charged with my death,” says Louise Vincent, executive director of the North Carolina chapter of the Urban Survivors Union, a national union of drug users who advocate for the health and wellness of people impacted by substance use. The group is leading a campaign called #reframetheblame to promote the idea of a “living will” in which drug users can express their wishes in case of death.

Drug-induced homicide laws are also drawing opposition from the Drug Policy Alliance, the American Civil Liberties Union, state-level public defenders associations, local harm-reduction organizations, and other drug-user unions. The Health in Justice Action Lab, which tracks the use of drug-induced homicide laws across the country, posts alerts about bills being introduced into state legislatures that would make it easier to charge a person who distributed drugs with murder. North Carolina and Rhode Island are currently considering such bills.

Despite the cost and inefficacy of drug-induced homicide laws, their popularity is unlikely to wane anytime soon. A significant portion of the criminal justice system runs on charging, prosecuting, and incarcerating people for drug offenses. Any challenge to that system will be fought by criminal justice actors who benefit from the status quo and fear losing jobs and resources.

The rise of drug-induced homicide laws boils down to the human tendency to want immediate results. It is hard to prove deterrence, so we don’t. It is hard to go after a “kingpin” dealer, so we prosecute friends or family of the deceased. It is hard to change our broken economic policies, mental health system, and behavioral health systems that lead so many to sell and use drugs even when they want to stop, so we do what’s easier—go after the lowest hanging fruit with the biggest guns we’ve got.

The solutions to problems like addiction can be incredibly complex. Thankfully, there are many people who realize that those hard conversations and policy changes must take place, and are prepared to take part.

“To start, we need to talk to folks affected by drugs use,” says Cox, the former chief of police. “So many times we leave them out of the equation and implement programs without listening to those most affected. We tend to see two tracks as solutions—either incarceration or treatment. Certainly those are options, but what else can we do from a public health standpoint to keep people alive and well?”

For Peter Bruun, the answer is simple. “We can change the mindset by tackling the stigma against people who use drugs,” he says. “People change through stories and humanizing. We need to recognize what we have in common, and not focus on what keeps us apart.”

Tessie Castillo of Raleigh, North Carolina, is a freelance writer on criminal justice reform, harm reduction, drug policy, and social issues. She formerly worked at the North Carolina Harm Reduction Coalition, where she helped to legalize syringe exchange programs and expand the use of naloxone, an antidote to counteract opioid overdose.