Successful prosecutions of dealers who provide the drugs in overdose deaths are few – with prosecutors and police having to overcome evidentiary problems made more difficult when the “buyer” of the drug is the victim of the fatal dose.
“Unfortunately, your best witness to where they got the drugs is dead,” Cambria County District Attorney Kelly Callihan said.
Although the criminal charge of “drug delivery resulting in death” has been on the books since 1998, only one person in Cambria County has been charged with the offense in the 12 years since.
That’s in contrast to the 30 to 40 overdose deaths investigated yearly by the county coroner’s office.
The offense – graded a felony and defined as third-degree murder – carries a mandatory minimum sentence of five years in prison.
In 2001, Danny Lee Bardell of Martinsburg received a sentence of one to two years in Cambria County Prison in the death of 18-year-old Adam Fowler of Carrolltown.
Bardell had pleaded no contest to involuntary manslaughter, reckless endangerment and drug delivery.
In neighboring Somerset County, two co-defendants were prosecuted in a drug overdose death.
Charles F. Wuenstel Jr. and Kami Corden were charged in the 2000 death of Paul Critchfield, 32, of Bakersville.
They, too, pleaded to lesser charges.
Denny Kwiatkowski, Cambria County coroner, said he believes there were 38 fatal overdoses in 2010.
Most involve prescription drugs, he said, and generally there is more than one drug in the body.
Most overdoses are accidental, he said.
The coroner said enforcing the drug death law is very difficult.
“Most rulings are challenged to a higher court and overturned,” Kwiatkowski said.
“It’s frustrating to all of us.”
Somerset County District Attorney Jerry Spangler said he understands the outrage family members feel.
He explained the problem with the language in the law.
“Because it is defined as murder of the third degree, you have to prove malice to get a conviction,” Spangler said.
Pennsylvania law, in part, defines a killing as being with malice if the person consciously disregards an “extremely high risk that the conduct (providing the drug) would result in death or serious bodily injury.”
Someone who delivers drugs does not necessarily believe the drugs will cause death, Spangler said. Most of the time, using the drug results in a “high” rather than immediate physical injury or death.
“Because not every use of (a drug) results in death, it is not a foreseeable consequence and that is what ties our hands,” Spangler said.
“It’s on the books,” he said. “But the way it is currently worded requires a very high standard as to the criminal intent element.”
Callihan agreed with Spangler.
“(The way the law is written) makes it so difficult to prove beyond a reasonable doubt,” she said.
“It’s on the books, but it’s really hard to prove.”
The fact that more than one drug is often found in the system of the overdose victim creates another issue – proof of which drug was ultimately lethal.
“Who delivered the drug that killed (the victim)?” Spangler asked.
Richard Long, executive director of Pennsylvania District Attorney’s Association in Harrisburg, said the group will look at proposing a legislative solution at the group’s meeting in February.
“We are interested in seeing the drug delivery resulting in death (law) amended to remove that malice requirement,” Long said, “and believe that would aid prosecutors in making sure that the people who kill our kids by selling them drugs face serious consequences.”