Prosecutors want to charge fentanyl drug dealers with murder, sparking legal battle

Some Southern California district attorneys are joining a growing national push to file murder charges against drug dealers who manufacture or sell fentanyl that ends up leading to deaths.

The efforts are part of a controversial move by authorities to target drug dealers who sell opioids laced with a deadly load of fentanyl, which is as much as 100 times more powerful than morphine. They have faced pushback from some in the legal community, who say it amounts to prosecutorial overreach and goes beyond what the law allows.

“These are not overdoses. These are murders,” Orange County Dist. Atty. Todd Spitzer said Tuesday. “These dealers are essentially handing a loaded gun to unsuspecting victims knowing that they will probably die, and they don’t care. Fentanyl is cheap, it’s easy to get, and it’s killing people who had no idea they were taking it.”

Under Spitzer’s plan, those convicted of possession for sale of heroin, cocaine, or opiates that commonly contain fentanyl will be warned of the deadly consequences of trafficking. They could then be charged with murder if they go on to sell to someone who dies.

Prosecutors in Riverside and San Bernardino counties have also begun charging some drug dealers with homicide, as have officials in jurisdictions from Las Vegas to Maryland.

Los Angeles County Dist. Atty. George Gascón, who was elected last year on a platform of criminal justice reform, does not support the efforts and has no plans to follow suit, an aide said.

“We have been down this road before: we know that increased penalties for drug offenses do not save lives. Over the last three decades, as we increased penalties, drugs became more potent, cheaper and easier to access. We need to learn from the failed strategies of the past, in order to find solutions for the future,” said Alex Bastian, a special advisor to Gascón.

Martin Schwarz, Orange County’s public defender, also rejected Spitzer’s move as beyond the scope of the law, noting that California prosecutors tried but failed to get the California Legislature to change the laws to make such charges possible. “Unless the Legislature changes course, there continues to be no legal basis for the courts to allow this,” he said.

Loyola Law professor Laurie Levenson said that to gain murder convictions, prosecutors will have to show that the drug dealer consciously disregards human life. “If you put on notice that what you are doing puts people at risk, that sets in place the type of malice required to prove second-degree murder,” she said. “You are going to have to show they knew that meth was laced with fentanyl.”

California Department of Public Health preliminary data show that California saw 3,857 deaths related to a fentanyl overdose in 2020 compared to 239 in 2016. Even two milligrams of the substance can be deadly.

Celebrity deaths involving fentanyl have garnered attention, including comedian Fuquan Johnson and two others who reportedly used cocaine containing fentanyl in L.A.’s Venice neighborhood this summer.

Federal prosecutors have filed more than a dozen cases against dealers where users suffered fatal overdoses. They secured a plea in the 2018 death of rapper Mac Miller last month from one of three men accused of supplying him drugs. Stephen Andrew Walter was sentenced to 17 years on the charge of distributing counterfeit Oxycodone pills with fentanyl.

Spitzer said he was swayed in part by stories of loss from parents like Amy Neville of Aliso Viejo, whose 14-year-old son took a single pill he bought off Snapchat.

“Alexander perished from a single counterfeit pill containing fentanyl. He was … just graduating middle school, armed with a skateboard, with a very full life ahead of him,” Neville said.

She said she found out later that two others also died from drugs supplied by the dealer who also gave Alexander the pill.

Riverside County Dist. Atty. Mike Hestrin has already filed seven murder cases involving drugs laced with fentanyl. In one case, an Eastvale man was charged with second-degree murder in February, with prosecutors alleging the defendant was aware of the danger but continued to sell the drugs, known as M30 pills.

“We started a year ago putting together in-depth investigations to prosecute drug dealers for murder. So far we have seven cases and three more are about to be filed,” Hestrin said. “I cannot tell you sitting here it is going to solve the problem. … Every single community is facing a fentanyl crisis. it is time we wake up and take a stand for parents and people we represent.”

“In Riverside County in 2016, there were two fentanyl-related deaths,” he added. “This year we are on pace to have between 500 and 600 fentanyl-related deaths, the deaths are doubling every year. … Fentanyl is so lethal it is poisoning our community.”

Matt Capelouto said his daughter Alexandra’s death in Riverside County was determined to be an accidental overdose, but it was poisoning. Two days before Christmas in 2019, Alex bought what she thought was Oxycodone from a drug dealer she found on Snapchat, he recalled.

“The pill she took was fake and filled with a fatal amount of fentanyl. My wife found her dead in her bedroom. Shortly after the horrible day, we learned three other young people in our community in 10 days had died in similar circumstances. Many more have died since,” he said.

Earlier this year, he and other parents unsuccessfully tried to get state lawmakers to enact Alexandra’s Law, which would address implied malice for drug deaths similar to drunk driving deaths.

Under the proposed law, a drug dealer of fentanyl would be warned of the danger, and “if they continued to sell and someone dies, he or she could be charged with murder,” Capelouto said.

This story originally appeared in Los Angeles Times.