Since late 2021, the Riverside County district attorney, Mike Hestrin, has charged 34 suspected fentanyl suppliers with murder and is said to be the first prosecutor in California to achieve a guilty verdict from a jury in a fentanyl-related homicide trial.

“People are being devastated by this drug,” said Mr. Hestrin, who has been the district attorney in Riverside County, a sprawling area east of Los Angeles, for nine years.

Riverside County has a reputation for aggressively prosecuting crimes (a “prosecutor’s paradise,” one local defense lawyer calls it). And like Riverside, some other counties — like San Diego and Placer, near Sacramento — that have also brought murder charges against fentanyl suppliers have sizable numbers of conservative-minded voters who tend to favor more punitive approaches to crime.

But even in the liberal bastion of San Francisco, the district attorney’s office has been preparing to investigate fentanyl deaths as possible homicides, which would be a big shift in the city’s approach to drug-related crimes.

Prosecution of street dealers is faulted by some critics as a misguided return to the aggressive approaches of the 1990s, which failed to curb drug use and swelled state prison populations with low-level distributors and people who were addicted to drugs.

“Using the same strategy we used in the 1990s and suggesting that it is appropriate and effective in 2024 is not a thinking person’s argument,” said Cristine Soto DeBerry, founder of Prosecutors Alliance, which supports progressive approaches to criminal justice in California.

What’s more, in California, such prosecutions rest on unsettled legal ground, experts say, because prosecutors have been working around the fact that California does not have a law that specifically allows fentanyl deaths to be charged as murders.

Yet even amid such legal uncertainty, such prosecutions are gaining traction across California, a reflection of the public’s anguish over fentanyl, which is a leading cause of death in the United States.

Federal prosecutors can charge someone with distributing fentanyl with a death resulting, which carries a mandatory minimum sentence of 20 years in prison. But the federal authorities do not have the capacity to pursue every street-level dealer, leaving state and local officials to come up with their own responses to what has emerged as a nationwide public health crisis.

Many of the fentanyl cases that have been prosecuted in California involved people who thought they were buying pain pills like Oxycodone or Percocet but ended up with pills containing fentanyl. Illicit drugs like cocaine are also being mixed with fentanyl, which is inexpensive to manufacture and highly addictive.

Prosecutors say that if they can prove that a suspected dealer knew that the drugs contained fentanyl and could be fatal, then they can charge the person with murder.

But unlike many other states, California does not have a law that classifies fentanyl deaths as murder. So in bringing murder charges, the prosecutors have gotten creative, borrowing from a legal theory used to prosecute drunken drivers.

It’s called the Watson murder rule, named after a California drunken-driving case dating back more than 40 years, in which courts determined that if an individual knowingly disregards the dangers of driving drunk and kills someone, it can equate to murder.

In Riverside County, people who prosecutors say knew the drugs they were selling or providing were lethal and supplied them anyway have been charged under the same theory of second-degree murder.

Prosecutors look to text messages and other communications to show that the person supplying the fentanyl was aware of the risks. But this evidence can be hard to find because the person may not always express that knowledge in writing.

Defense lawyers say this definition of murder is overbroad and unconstitutional because the California legislature has not created a law that designates fentanyl deaths as murder.

“So is it murder to sell someone a pack of cigarettes since you know that cigarettes can kill?” said Michael Duncan, a defense lawyer in Riverside County who represents a man sentenced to 15 years to life in prison in November for supplying fentanyl to a 26-year-old woman, Kelsey King.

A jury found Mr. Duncan’s client, Vicente David Romero, guilty of second-degree murder, which prosecutors said was the first time a jury in California had convicted someone of a fentanyl-related murder charge.

Prosecutors said Mr. Romero had split a pill, which he knew to contain fentanyl, with Ms. King. Mr. Duncan said his client had looked for help for Ms. King, which is not behavior consistent with murder.

Mr. Romero’s conviction is being appealed.

“The power to define the crime of murder belongs to the Legislature,” Mr. Duncan said. “Not to courts and not Mr. Hestrin’s office.”

Of the 34 cases where murder charges have been filed in connection with fentanyl deaths in Riverside County, Mr. Romero’s is the only one that has resulted in a murder conviction by a jury. In another of those cases, a jury found the defendant guilty of involuntary manslaughter. Six other cases have resulted in plea agreements in which the charges were reduced to voluntary manslaughter. There are 24 cases still pending.

In San Francisco, fentanyl is a volatile issue in a city that has historically taken progressive approaches to illegal drugs, emphasizing treatment and rehabilitation over prison.

District Attorney Brooke Jenkins, who was appointed in 2022 after her progressive predecessor, Chesa Boudin, was recalled by voters who were frustrated by crime in San Francisco, is taking a harder line on dealers.

In an interview, she said not every overdose death — there were about 800 last year — could be investigated as a potential homicide because of constraints on resources and lack of evidence.

But Ms. Jenkins said bringing homicide charges in even a few cases would send a message that “we will not let you get away with killing our most vulnerable.”

Ms. Jenkins said that a task force of prosecutors and police officers was being trained on how to build a homicide case and that she didn’t expect them to be ready to bring charges until this summer.

In San Diego County, District Attorney Summer Stephan said she had brought murder charges sparingly — against a total of four people since 2017 — compared with lesser charges in the roughly 500 fentanyl sales cases her office handled just last year.

Even if the dealer isn’t charged, Ms. Stephan said, she wants to be able to provide the families of the deceased with as much information as possible.

“These families feel like their soul has been ripped out of their chest,” she said. “They want to know what happened.”

Parents whose children died from fentanyl are a driving force behind new laws and stepped-up prosecutions just as the parents of drunken-driving victims swayed the nation to crack down on alcohol-fueled traffic deaths decades ago.

Mr. Hestrin, the Riverside County prosecutor, said his decision to start pursuing murder charges had been inspired by his conversations with a local parent, Matt Capelouto, whose 20-year-old daughter, Alexandra, died from fentanyl in December 2019. Home from college, she had taken half a pill that she believed was Oxycodone. But it was a counterfeit pill that contained a lethal dose of fentanyl.

Mr. Capelouto, who owns a print shop in Temecula, a city in Riverside County, said he had initially been told by investigators that his daughter’s death appeared to be an accidental overdose and that there was no crime involved.

Mr. Capelouto requested a meeting with Mr. Hestrin.

“He asked me, ‘Why isn’t my daughter’s death a murder?’” Mr. Hestrin recalled. “And my answer was, ‘I don’t have a good answer.’”

Mr. Capelouto now serves as president of an advocacy group, DrugInducedHomicide.org, which has been pushing states to crack down on street-level drug dealing.

Mr. Hestrin’s investigators were unable to find enough evidence to show that the person who sold Ms. Capelouto the pills knew they contained fentanyl and that the pills were lethal — elements necessary to prove second-degree murder.

The dealer was eventually charged in federal court, where the penalties for fentanyl sales are stiff. In 2023, he pleaded guilty to possession of fentanyl with the intent to deliver and was sentenced to nine years in prison. As part of the plea agreement, he admitted to knowing that the pills had contained fentanyl or some “other federally controlled substance.”

“We can’t get ahead of this situation until we can hold drug dealers responsible,” Mr. Capelouto said.

The post California Prosecutors Filing Murder Charges in More Fentanyl Deaths appeared first on The Hemet & San Jacinto Chronicle.

As the addiction and overdose crisis that has gripped the U.S. for two decades turns even deadlier, state governments are scrambling for ways to stem the destruction wrought by fentanyl and other synthetic opioids.

In statehouses across the country, lawmakers have been considering and adopting laws on two fronts: reducing the risk to users and increasing the penalties for dealing fentanyl or mixing it with other drugs. Meanwhile, Republican state attorneys general are calling for more federal action, while some GOP governors are deploying National Guard units with a mission that includes stopping the flow of fentanyl from Mexico.

“It’s a fine line to help people and try to get people clean, and at the same time incarcerate and get the drug dealers off the streets,” said Nathan Manning, a Republican state senator in Ohio who is sponsoring legislation to make it clear that materials used to test drugs for fentanyl are legal.

The urgency is heightened because of the deepening impact of the drugs. Last year, the U.S. Centers for Disease Control and Prevention reported the nation had hit a grim milestone. For the first time, more than 100,000 Americans had died of drug overdoses over a 12-month period. About two-thirds of the deaths were linked to fentanyl and other synthetic drugs, which can be 50 to 100 times more potent than morphine, heroin or prescription opioids.

The recent case of five West Point cadets who overdosed on fentanyl-laced cocaine during spring break in Florida put the dangers and pervasiveness of the fentanyl crisis back in the spotlight.

The chemical precursors to the drugs are being shipped largely from China to Mexico, where much of the illicit fentanyl supply is produced in labs before being smuggled into the U.S.

While users sometimes seek out fentanyl specifically, it and other synthetics with similar properties are often mixed with other drugs or formed into counterfeit pills so users often don’t know they’re taking it.

Advocates say test strips can help prevent accidental overdoses of drugs laced with fentanyl. The strips are given out at needle exchanges and sometimes at concerts or other events where drugs are expected to be sold or used.

Thomas Stuber, chief legislative officer at The LCADA Way, a drug treatment organization in Ohio that serves Lorain County and nearby areas, has been pushing for the test strip legislation. It also would ease access to naloxone, a drug that can be used to revive people when they’re having opioid overdoses.

“This is a harm-reduction approach that has received a lot of acceptance,” he said. “We cannot treat somebody if they’re dead.”

Since last year, at least a half-dozen states have enacted similar laws and at least a dozen others have considered them, according to research by the National Conference of State Legislatures.

In West Virginia, the state hardest hit by opioids per capita, lawmakers passed a bill this month to legalize the testing strips. It now heads to the governor.

The measure was sponsored by Republican lawmakers. But state Delegate Mike Pushkin, a Democrat whose district includes central Charleston, has also been pushing for more access to fentanyl strips. He said the situation got worse last year when a state law tightened regulations on needle exchanges, causing some of them to close.

Pushkin, who also is in long-term addiction recovery, is pleased with passage of the testing strip bill but upset with another measure passed this month that would increase the penalties for trafficking fentanyl. That bill also would create a new crime of adding fentanyl to another drug.

“Their initial reaction is, ‘We have to do something,’” he said. “It’s not just about doing something, it’s about doing the right thing that actually has results.”

But for many lawmakers, making sure that tough criminal penalties apply to fentanyl is a priority.

California Assemblywoman Janet Nguyen, a Republican, introduced a measure that would make penalties for dealing fentanyl just as harsh as those for selling cocaine or heroin. The Republican represents Orange County, where there were more than 600 reported fentanyl-related deaths last year.

“This is sending messages to those who aren’t afraid of selling these drugs that there’s a longer, bigger penalty than you might think,” said Nguyen, whose bill failed to advance from her chamber’s public safety committee in a 5-2 vote last week. She said after the bill failed that she was considering trying again.

She said committee members stressed compassion for drug users, something she said she agrees with.

“The less available these pills are out there, the better it is,” Nguyen said. “And that is going after the drug dealer.”

The same day her measure failed to advance, a Democratic lawmaker in California announced a different bill to increase fentanyl-dealing penalties.

The National Conference of State Legislatures found 12 states with fentanyl-specific drug trafficking or possession laws as of last year. Similar measures have been introduced or considered since the start of 2021 in at least 19 states, the Associated Press found in an analysis of bills compiled by LegiScan. That does not include measures to add more synthetic opioids to controlled substance lists to mirror federal law; those have been adopted in many states, with bipartisan support.

Fentanyl has been in the spotlight in Colorado since February, when five people were found dead in a suburban Denver apartment from overdoses of fentanyl mixed with cocaine.

Under state law, possession with intent to distribute less than 14 grams of fentanyl is an offense normally punishable by two to four years in prison. But fentanyl is so potent that 14 grams can represent up to 700 lethal doses, under a calculation used by the U.S. Drug Enforcement Agency.

“It’s making it impossible to hold the dealer accountable for the deadliness of the drugs they’re peddling,” Colorado House Speaker Alec Garnett, a Democrat, said in an interview.

He and a bipartisan group of lawmakers last week unveiled a bill also backed by Democratic Gov. Jared Polis that would increase penalties for dealers with smaller amounts of fentanyl and in cases where the drug leads to a death. The legislation also would increase the accessibility of naloxone and test strips while steering people who possess fentanyl into education and treatment programs.

Maritza Perez, director of national affairs at the Drug Policy Alliance, a group that advocates for harm-reduction measures, is skeptical of the legislation that would increase criminal penalties.

“We have the largest incarceration rate in the entire world and we’re also setting records in terms of overdose deaths,” she said.

Democratic governors are focusing primarily on harm reduction methods. Among them is Illinois Gov. Jay Pritzker, who released a broad overdose action plan last month.

Several Republican governors and attorneys general have responded to the rising death toll with administrative enforcement efforts and by pushing for more federal intervention.

Last year, Texas Gov. Greg Abbott and Arizona Gov. Doug Ducey called for states to help secure the border with Mexico. Along with trying to keep people from entering the U.S., stopping the flow of fentanyl was cited as a reason. Several other Republican governors have sent contingents of state troopers or National Guard units.

The Texas Military Department said that from March 2021 through earlier this month, its troops near the border confiscated more than 1,200 pounds (540 kilograms) of fentanyl. By comparison, federal authorities reported confiscating about 11,000 pounds (4,990 kilograms) in 2021 — still a fraction of what entered the country.

Last year, the U.S. Department of Justice filed about 2,700 cases involving crimes related to the distribution of fentanyl and similar synthetic drugs, up nearly tenfold from 2017. Even so, Republican state officials are critical of federal efforts to stop fentanyl from entering the country.

In January, 16 GOP state attorneys general sent a letter to U.S. Secretary of State Antony Blinken calling on him to exert more pressure on China and Mexico to stop the flow of fentanyl. Those are steps that Dr. Rahul Gupta, the director of National Drug Control Policy, said are already being taken.

In March, West Virginia Attorney General Patrick Morrisey called on U.S. Attorney General Merrick Garland for more enforcement on fentanyl trafficking and harsher penalties.

“Fentanyl is killing Americans of all walks of life in unprecedented numbers,” Morrisey said in a statement emailed to the AP, “and the federal government must respond with full force, across the board, using every tool available to stem the tide of death.”

Find your latest news here at the Hemet & San Jacinto Chronicle

The post States look for solutions as US fentanyl deaths keep rising appeared first on The Hemet & San Jacinto Chronicle.