As heroin deaths hit record highs across the Twin Cities, angry prosecutors are more likely to file third-degree murder charges against dealers.
Going by the street name “Church,” the heroin dealer met his customer at a corner convenience store in north Minneapolis, the Penn-Wood Market, and made a sale. Hours later, the customer lay dying in Hopkins, another victim of a lethal heroin epidemic sweeping across the Twin Cities.
Thirty years ago, the dealer might get charged with drug dealing, but thanks to a rarely used law passed in 1987, Hennepin County prosecutors had grounds to bring the more serious charge of third-degree murder against Devon McFerrin, 31, or “Church,” who has a lengthy criminal record.
Faced with an alarming rise in heroin overdose deaths, some prosecutors across the metro area have turned to the third-degree murder charge to push back against dealers. Hennepin County prosecutors, who didn’t file any third-degree murder cases for drug overdose deaths in 2008, 2009 or 2010, have filed six in the past 18 months.
“It deserves a murder rap,” said County Attorney Mike Freeman.
Washington County Attorney Pete Orput said he’s pursued murder charges against drug dealers out of a sense of outrage. His office filed third-degree murder charges twice already this year, and had as many as four of the cases last year.
“When we can get our hands around the necks of the people who are giving it to the kids, we fully prosecute them,” said Orput, who called the loss of young lives heartbreaking.
A record 120 people died of heroin or opiate overdoses in the Twin Cities in 2011, according to the most recent state records available. State health officials say the heroin flooding the Twin Cities market comes in varying levels of potency, some of it the strongest heroin in the nation. Hennepin County Medical Examiner Andrew Baker has likened using the drug to “taking a crapshoot with your life.”
Heroin: A cheap substitute
Many of the victims developed an opiate addiction while sneaking prescription drugs out of the medicine cabinet. Once those are gone, and unless someone else can provide the OxyContin or Vicodin, heroin becomes a cheap, plentiful substitute.
Third-degree murder, which in Minnesota means an unintentional homicide, existed as a criminal charge before 1987, but the Legislature that year expanded its definition to include deaths caused by a group of highly addictive and dangerous drugs. Known as Schedule I or Schedule II drugs under the Controlled Substances Act, the drugs include opiates like heroin and methadone, along with hallucinogens like peyote and other drugs. The charge carries a maximum penalty of 25 years.
Under the same 1987 law change, deaths caused by Schedule III, IV, or V drugs such as Ketamine or Secobarbital could bring a first-degree manslaughter charge, which has a maximum prison sentence of 15 years.
Link needed to prosecute
The cases can be difficult to prove, since it requires showing evidence that links the dealer to the overdose victim.
To get a charge filed against McFerrin, a Hopkins detective used surveillance camera footage taken at the Penn-Wood Market and DNA evidence found on a plastic baggie in the victim’s pocket.
No such cases have been charged in Ramsey County in recent years, according to a spokesman. There were 36 heroin and opiate overdose deaths in Ramsey County in 2011, according to records.
Richard Dusterhoft, criminal division director at the Ramsey County Attorney’s office, said third-degree murder cases fall apart easily without solid evidence.
“Absent an admission or catching them essentially in the act it would be hard to get the proof that you’re going to need,” he said.
Freeman agreed the cases are tough to prove, but called the drug-induced homicides “pretty serious stuff” that his office felt obligated to pursue with murder charges when possible. “It’s egregious,” he said.