After working an early morning shift at a nearby hotel and an afternoon spent barbecuing with her family, Jaimie Cahill fell asleep on a couch in the basement, waiting for her laundry to dry. It was 9pm, 14 June 2015. Her younger brother, Joseph Cahill, 27, was supposed to come home soon. He hadn’t said where he was going, and she was starting to get worried.

In the last few days, his behavior had been strange. They were small things, but they added up. He fell asleep in his car with the engine running, he hit a guardrail, and he was starting to hang out with other addicts, people who were taking Suboxone and were still in the detox phase. It didn’t make sense. As far as she knew, Joseph had been clean for five months. And then she found a burnt spoon.

It wasn’t until she woke up later that night, at around 1:15am, that she found Joseph, lying dead on the bathroom floor, stiff and blue, a syringe and another burnt spoon by his side. When police came, Jaimie gave them a name, “Amanda”, and a phone number. She was a heroin addict, Jaimie told them. She had noticed Amanda had been calling her brother recently. “Talk to her – she knows.”

***

Amanda Burgess, 27, is now facing criminal charges for having sold Joseph Cahill the $40 worth of the fentanyl that killed him. Under current law, she’s facing a charge under a drug statute, known as “death resulting” that could put her behind bars for life.

But under a newly announced policy from New Hampshire’s attorney general, Joseph Foster, the next person in her situation is likely to face second-degree murder charges instead.

Amanda Burgess. Photograph: Police handout

After the drug epidemic in New Hampshire reached new heights in 2015, Foster is pushing for additional resources to charge drug dealers with second-degree murder in cases of fatal overdoses involving heroin and fentanyl. To do that, he’s planning to teach local police departments to treat fatal drug overdoses like murder scenes, and he’s asking for $115,000 to place an additional prosecutor in the drug unit devoted to prosecuting overdose cases.

An increasing number of other state officials are responding with policies to treat drug dealers like murderers, as opioid overdoses are likewise ballooning across the country. If Foster’s plan moves forward, New Hampshire will join states like New Jersey and Wisconsin where prosecutors are dusting off pre-existing laws to press murder charges against dealers. Other states, such as West Virginia, Pennsylvania, and New York have passed or are working to pass new laws to go after suppliers in cases of fatal overdoses. Meanwhile, federal prosecutors who have leverage to charge dealers in cases of fatal overdose under the Controlled Substance Act are taking on similar cases across the country.

While proponents of this move argue prosecuting dealers is an effective way to tackle an out-of-control epidemic, critics say the tactic contradicts efforts to reduce prison populations and treat addiction.

Art Way, senior director of the criminal justice reform strategy at the non-profit Drug Policy Alliance, is alarmed by the national trend. “It’s backwards punitive policy that doesn’t prevent the issue of overdose,” said Way.

In New Hampshire, some are wary of the attorney general’s recent announcement. Foster is “basically saying let’s try to scare the drug dealers into not dealing”, said Jim Moir, a defense attorney in Concord. He says the move to prosecute represents a misunderstanding of the crisis at hand and additional resources would be better spent on addiction treatment: “I don’t think any drug dealer wants to kill a customer. That’s a bad business model.”

While James Vara, an assistant attorney general who works the drug unit, says prosecuting dealers in cases of fatal overdose won’t solve the opioid epidemic, he believes it is an important part of a multifaceted approach. “The goal is that some of them will think twice about the decisions that they are making and no longer sell drugs. Some, of course, won’t. Some, of course, will.”

“You hear this buzzword ‘you can’t arrest your way out of the problem’. However, you have to look at these people who are dealing drugs and killing and you have to hold them accountable for [their] actions.”

The move to increase prosecution is motivated in part by the flood of fentanyl in the drug market in New Hampshire. Fentanyl is a synthetic opioid that can be between 30 and 50 times as powerful as heroin and is often used by dealers to cut or in place of heroin, frequently unbeknownst to users. Last year, 399 people died of drug overdoses; 365 of them overdosed on opioids. And 261 people had fentanyl in their system, according to the office of the chief medical examiner. With 36 instances still pending toxicology, the numbers could be even higher.

While Way says he understands why in some cases, when individuals are knowingly negligent, prosecutors press charges, he says adding additional funding to this policy could backfire, and encourage law enforcement to go after people who would be better served getting health treatment. “It has a potential to go beyond cases where there is obvious foul play involved,” he said.

“I see this as a political aspect to show the community they are trying to do something about the issues, but they are trying to do something about a small aspect of the issue.”

Vara says the department will use discretion when deciding which cases to go after. “If you have a dealer who’s knowingly selling fentanyl, knowing that people are dying from fentanyl, we will certainly take a hard look at that case.”

He points to cases where the attorney general’s office has already prosecuted drug dealers in cases of fatal overdoses under “death resulting” charges. In October 2015, Michael Millette, 54, pleaded guilty to drug charges including selling the fentanyl that resulted in Edward Martin III’s death. Police affidavits showed text messages on Millette’s phone indicated that he was aware his product resulted in an overdose death, according to the Union Leader.

Vara declined to comment on Burgess’s case since it is ongoing.

***

“I killed sum one.”

It was 3am on 15 June 2015, and Burgess was texting desperate pleas and cryptic messages to her mother, Donna Eiss, according to a police affidavit.

Eiss was asleep.

“Plz pick up I need u idk wut Ta do I killed sum one plz help.”

Hours later, her mother still had not responded.

“I jus watch sum one die rite in front of me,” Burgess wrote at 7.15am, adding that she planned to “lay low” and catch a bus out of town.

When Eiss woke up, she took her daughter to the Portsmouth police station, and showed officers her daughter’s texts. Her daughter was “with the boy when he died”, she told them, according to court documents.

The Cahill family sat around the kitchen table in Portsmouth, in the same house where Joseph died months earlier. Though they don’t believe drug dealers should face such stringent charges in instances of fatal overdoses as a rule, to them Burgess’s reaction to Joseph’s overdose warrants harsh punishment. Had she alerted someone immediately, medics might have been able to administer narcan­­ – a medication that reverses the effects of an opiate overdose – and save Joseph’s life.

“He made his own decision; he’s a grown-ass man,” says James Cahill, Joseph’s older brother. “So can I be mad at her for selling him the heroin? No, because he made that choice. But what bothers us is that she just left him.”

Although Burgess’s failure to seek immediate help may be what makes Cahill’s family so upset, she’s technically not facing charges for absconding – only for supplying him with what turned out to be a lethal dose of fentanyl.

Milwaukee defense attorney Robin Shellow, who has defended more than a dozen drug homicide cases under Wisconsin’s “reckless homicide” law, says that in her experience, aggravating factors don’t generally play a role when prosecutors decide whom to press charges against in instances of fatal overdose. In her experience, if there is a clear trail of evidence to the supplier, prosecutors follow through with the case.

Shellow called the uptick in drug homicide prosecutions a “collision course” between an effort to treat addicts with alternative punishment like drug courts “and the need to extract punishment when there is a death involved”. The law, she says, has been used to levy murder charges not only on dealers, but on people who buy small amounts of heroin together, or in cases where one individual has driven another to purchase drugs.

As far as Burgess’s case goes, Shellow says Burgess’s failure to contact someone was likely the result of laws that deter individuals afraid of facing criminal repercussions from calling the police. Less than a month after Cahill’s death, Governor Maggie Hassan of New Hampshire passed a Good Samaritan law, barring police and prosecutors from charging someone who calls for medical assistance.

But while the Cahill family is furious with Burgess, their main source of frustration is with the lack of resources in the state that might have prevented Joseph, who they say was a loving father and uncle, from overdosing at all.

“He didn’t struggle with school; he struggled with life,” explained Joseph’s mother, Paula Cahill. In middle school, he was dubbed the “Math King”. He got straight As, she says. At 17, when he dropped out of school to take care of his son Joseph Jr, he was managing a restaurant.

Joseph Cahill and his newborn niece, 10 days before he died. Photograph: Courtesy of the Cahill family

But like many in the Cahill family, Joseph struggled with addiction.

“He was a very shy kid so that made him come out of himself,” said Paula. “He would be talking your ear off if he didn’t know you so long as he was high on something.”

The problem grew significantly worse in 2011, when Purdue Pharma changed OxyContin pills to make them more difficult to abuse. Joseph, who his family believes was recreationally abusing the prescription drug, turned to heroin instead. Run-ins with the law soon followed; he was arrested for stealing an iPhone and a .38 hand gun in 2013. Paula says he started stealing from cars to pay for his habit and the time he subsequently spent behind bars helped him get clean.

New Hampshire is ranked the second worst state in the country for addict treatment. The problem, says Joe Harding, director of the Bureau of Drug and Alcohol Services, began in the 1990s, when insurance companies stopped paying for rehabilitation treatment, and rehabilitation centers across the state were forced to shut down. After the Affordable Care Act passed, insurance started to pay for rehabilitation benefits, “but we still don’t have that capacity”, said Harding. Harding says the state is now prioritizing rebuilding and expanding treatment centers.

Even when that does happen, the Cahill family worries there still won’t be enough benefits for addicts who don’t have insurance. “He was able to go the intensive outpatient program for drugs and alcohol, but then he got this job and started working and he started making a little too much money and he couldn’t get the free care any more,” explained Paula, a recovering addict herself.

Joseph had been clean since January 2015, but his family believes he may have turned back to drugs in April, two months before his death, when his doctor prescribed him Percocet after he underwent wrist surgery.

“They need things that people with no money can turn to,” said James. “Chances are if you do have a drug problem, you don’t have the money for health insurance or a doctor.”

Burgess’s public defender, Lauren Pruisner, declined to speak about her client’s case directly, although she pointed out that Burgess has no prior record of selling drugs. People who are arrested for selling opioids, she says, are often addicts themselves. “In many cases they are not doing it for profit, and they may not be making money at all. In many cases they are doing it for a friend [or] to support their own drug habit.”

Burgess is expected to stand trial in May.