District Attorney looks to lead fight against opiates by prosecuting drug dealers complicit in overdose deaths

District Attorney Bruce Brown of the Fifth Judicial District is one of a few DA's in the state focused on prosecuting drug dealers complicit in overdose deaths.
Bruce Brown

Opioid addiction has become a rapidly growing epidemic across the country over recent years, and Colorado is no different. As overdose deaths become more common, state and local officials are looking for tools to help curb the distribution and use of illicit substances. One of those tools is the law, and District Attorney Bruce Brown is looking to lead the fight.

Brown’s office, a district that covers Summit, Eagle, Lake and Clear Creek counties, is one of only a few in Colorado actively prosecuting drug dealers who supply substances to overdose victims, a philosophy largely in contrast with established thought.

“Cases like this are tricky because the custom that evolved was to treat overdoses as accidental deaths, and not as crimes,” said Brown. “When this epidemic of opiate deaths started taking off, I had to ask ‘what can I do?’ The only way I get my nose into the tent of the social fabric is through the criminal justice process.”

While it’s easy to view drug overdose and opiate addiction as problems far from home, Colorado is suffering along with the rest of the country. In 2016, there were more than 530 opioid-related overdose deaths in Colorado, according to Opioids are killing Coloradans at a rate of 9.5 per 100,000 individuals, more than double the rate in 1999. The problem extends to Summit County as well.

“I think it’s off the charts,” said Brown. “We’re a community that has a large population who are addicted to drugs. The methods of traditional law enforcement like undercover activity and controlled buys have generally not occurred. So that becomes somewhat of a recipe for the culture here to blossom. …we do see a lot of drug overdoses. And we’re not jut talking about deaths, it’s cases where people go to the hospital or law enforcement is being summoned.”

But Brown is hoping that prosecuting and publicizing drug dealers who contribute to overdose deaths will serve as a deterrent for other potential dealers in the area. Over the last four years the District Attorney’s Office charged six drug dealers for the overdose deaths of nine individuals, including Dennis Tierney, who plead guilty to distribution and criminally negligent homicide last week. Charges range from possessing controlled substances and unlawful use, to more serious felonies such as criminally negligent homicide, manslaughter and distribution.

There currently isn’t a Colorado crime that directly classifies dealing drugs that results in an overdose, so prosecutors are forced to use relatively untested methods to try and pull convictions. Brown noted that when considering the charges to level against an offender, a totality of the circumstances is reviewed. In other words, someone who deals drugs for the purpose of supporting their own addiction may not face as severe of charges as someone who deals exclusively for profit. Likewise, high-level drug dealers will face stiffer punishments than someone simply sharing their substance with a friend or partner.

Sentencing can also vary dramatically in these cases, but often includes drug rehabilitation efforts along with probation or time in a Colorado Community Corrections center (essentially a halfway house with programming to treat drug addicts). Brown said that after a conviction the court will enter into pre-sentence investigations — a comprehensive look at an offender’s background including criminal history and history of addiction — to determine whether prison or treatment is the appropriate sentence.

“You have the crime, and the person who commits the crime,” said Brown. “But the person who commits the crime might have radically different motivations than someone else. People who can control their behavior are more accountable.”

There are several reasons that most district attorneys in Colorado choose not to prosecute drug dealers related to homicide deaths, but perhaps none more obvious than the fact that the cases can be remarkably difficult to convict. Brown said that often those who die in a drug overdose are polydrug users, those who ingest more than one substance at once. Under Colorado’s current statutes, there must be a clear line between the drug dealer and the substance that killed an individual. So if there’s a distributor of only one substance, a medical professional must be able to say that specific substance caused the overdose death.

In addition to these cases being difficult to prosecute, there are also those who believe that prosecuting drug dealers for overdose deaths is actually exacerbating the drug epidemic. The prevailing message from opponents of prosecuting distributors is that it can create an unintended consequence wherein people are too afraid of the legal repercussions to call 911 when someone overdoses.

Brown pointed to Colorado’s Good Samaritan laws as a counter argument. In Colorado, if you or someone you’re with has an overdose, you won’t be prosecuted for drug-related crimes like possession or use if you call for help and cooperate with first responders. The laws may not protect those who traffic in narcotics, though district attorneys have discretion in bringing charges.

“I’m interested in reinforcing the Good Samaritan policy,” said Brown. “That’s why DAs have discretion. If someone sold the substance, but calls 911 and cooperates there’s a good chance they’re not prosecuted, despite the letter of the law.”

Brown recently drafted a new statute regarding overdose deaths, though it’s yet to be introduced into the state Legislature. The statute would look to remove some of the guess work from these kinds of prosecutions, expand punishment for drug distribution resulting in a death, and lower the standard of law so that linking a singular substance that caused death to a dealer won’t serve as the only means of prosecution.

“There’s a need for a statute such as this because the legal process should not be so uncertain for these types of prosecutions,” said Brown.

While Brown is intent on sending a message to drug dealers in Summit County and the other jurisdictions he oversees, he admits that prosecutions and attempts to deter distributors is just a small part of what needs to be done to address drug issues here and around the country.

“It’s just a small piece of the puzzle,” he said. “The larger issue has to be figuring out ways to treat people who are addicted to drugs. … People, even people who would harm themselves, deserve to be treated and given care and empathy. These are people in our community. There’s no protection because you’re a lawyer or a doctor. We can all fall into the trap of addiction and be a victim of this epidemic. We are all entitled to protection.”

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