Alison Dirr

USA TODAY NETWORK-Wisconsin

APPLETON - Reckless homicide charges spiked in Outagamie County in 2016, and District Attorney Carrie Schneider sees a direct correlation with widespread opioid abuse in Wisconsin.

"I think it is just obviously a statewide epidemic, the heroin and the drug use," Schneider said. "It can be someone's second time or their 102nd time, there's just no rhyme or reason when what they take on a given day is enough that causes their death. And it's just been kind of an explosion here."

Outagamie County prosecutors charged one case per year from 2013 to 2015. But in 2016, the number jumped to seven. Two of those cases, one of which was dismissed, pertained to the same person's death.

There have been two cases filed so far in 2017.

The vast majority of the victims from 2013 through this year lived in the Fox Cities, including Appleton, Darboy, Freedom and New London. All but one were in their 20s or 30s. Their deaths were blamed most often on heroin but the criminal complaints also pointed to other drugs, including fentanyl and methadone.

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Some cases were charged quickly after a death, while others took as long as 2½ years. In the cases that took longer to charge, Schneider said, prosecutors were waiting on toxicology reports, test results or other records. The cases came together at roughly the same time.

Outagamie County isn't alone in using what's known as the Len Bias law to charge those who supply drugs that kill an individual with reckless homicide. But prosecutors acknowledge that those cases don't represent the scope of the problem — including the number of people who have died from overdoses or who have overdosed and survived.

The challenge in these cases, prosecutors said, is not necessarily proving that someone delivered drugs to another person, but that the drugs caused an overdose death. Sometimes that's just not possible.

Len Bias laws — named after the basketball star who died of a cocaine overdose in 1986 — were enacted across the country, including Wisconsin.

The laws were not used frequently in the beginning, Marquette University Law School professor Michael O’Hear told USA TODAY NETWORK-Wisconsin.

"But there has been a real surge in the last decade or so in use of homicide charges for overdose deaths and I think that's pretty clearly related to the opioid epidemic and heroin and fentanyl and other drugs that are easily overused and which do all too often lead to overdose deaths," he said. "And there certainly has been a surge nationally in overdose deaths, and so you're seeing prosecutors trying to respond to that."

The deterrent effect of these charges might be limited, O'Hear said. To be deterred by potentially long sentences, people need to be thinking about the future and believing that there is a significant risk that they'll get arrested and convicted. It's not the kind of rational cost-benefit analysis typically associated with the drug trade, he said.

"I think that they're really probably more symbolic than anything else," he said of the laws. "They're a way for the criminal justice system to express concern and anger about what's happening with drug overdoses in our community and there may be some benefit to family members of deceased victims if they have a sense that the criminal justice system is taking these cases very seriously and trying to hold responsible parties accountable in a very severe way."

Jon J. Padgham, supervising attorney at the Outagamie County Public Defender's Office, said heroin has had an astounding effect on the criminal justice and social services systems. He likened using heroin to playing Russian roulette.

"Most of us simply cannot understand the overwhelming desire/need for the high and how (it) skews all other rational thoughts," he said in an email to USA TODAY NETWORK-Wisconsin. "It's great to see the development of multi-dimensional initiatives. The criminal justice system, alone, cannot adequately address heroin."

While prosecutors hope the charges have a deterrent effect, particularly on dealers, they also say people need to be held responsible for the crimes they commit.

In Len Bias cases, as in fatal drunken driving crashes, the consequences dictate the charge, Winnebago County District Attorney Christian Gossett said. Like other prosecutors, he doesn't buy the argument that overdoses are a victimless crime because the person who takes the drugs is engaging in the activity.

"If you're dealing heroin, you're dealing something you know is dangerous, you have to be prepared to deal with the consequences of that, especially now the heroin that we're seeing is being laced with fentanyl, which is even more dangerous," said Winnebago County Assistant District Attorney Tracy Paider, who is part of the Drug/Property Unit within the office. "So in my mind, yes, you didn't force the person to inject the drug but if you are going to deal in drugs that are that dangerous, you have be prepared to deal with those consequences."

But the circumstances of an overdose death also come into play in these cases, they said. If two friends are using together and one dies of an overdose, it's a different case than someone who's not an addict and is selling drugs to make a profit.

There are cases in which investigators have gone one or two people up the drug-delivery chain, but getting the "big fish" is a real challenge, Paider said. After a certain point in that chain, people don't know each other by their real names or real phone numbers. If the higher-level dealer is in Milwaukee or Chicago, they aren't necessarily using real addresses or they're using burner phones.

Outagamie County has had cases where people are partying and someone ends up dying, Schneider said. They've chosen in some of those cases to not file Len Bias charges but instead charge the person who brought the drugs with delivery, she said. The calculation changes if that individual had past delivery or sales on their record.

"It's kind of our discretion to say, instead of charging them with the Len Bias, we might charge them with the delivery, where we know we can still receive an appropriate sanction," Schneider said. "... So I think we still choose to charge them in a way we think is the best use of our resources and really gets at the root of the problem. They're not the root of the problem. The root of the problem is the higher-level people who are bringing the drugs in or selling the drugs."

Alison Dirr: 920-996-7266 or adirr@gannett.com; on Twitter @AlisonDirr