A small bag of straight Fentanyl on display in connection with an unrelated case in Ohio. (Photo by Ty Wright for/ For The Washington Post via Getty Images)

This story was originally published on The Appeal, a nonprofit criminal justice news outlet.

On September 7, 2018, 24-year old Jeniffer Patrick was riding in a car with her 49-year-old boyfriend when they were pulled over by Marion County sheriff’s deputies, who found drugs and syringes in the car. She was arrested and booked into Marion County Jail in Ocala, Florida, where she was strip-searched and placed in a holding facility with other women.

Patrick’s first day in the jail would be 22-year-old Lorraine Gardner’s last. Gardner had been there since July 2, on a probation violation stemming from three drug charges for MDMA, cocaine, and meth.

According to the Marion County sheriff’s department, video showed Patrick handing something to Gardner, who then put it to her face. Soon after, she began to show signs of physical distress. Staff with Ocala Community Care, a nonprofit that provides medical care at the facility, tried to revive her. EMTs arrived at the scene, but they couldn’t save her life either.

Later footage showed something falling out of Patrick’s pants: a small baggie containing a tan mixture, according to detectives. The substance was tested and revealed to be 2.5 grams and to contain fentanyl. Patrick told officers that she had grabbed the bag after it fell out to prevent the other women from getting sick. Patrick did not alert authorities and she tried to throw out the drugs before another strip search, according to the sheriff’s office.

In November, Patrick was charged with first-degree murder. News outlets seized on the scandal: “Woman who hid drugs in vagina charged with murder after inmate ODs: cops,” the New York Post headline read.

The murder charges against Patrick are part of a growing push to treat fatal overdoses as homicides. Dozens of states have passed or expanded laws allowing prosecutors to bring murder charges against anyone who gives or sells drugs to a person who dies after taking them. According to the Drug Policy Alliance, a nonprofit that supports science-based drug regulation over criminalization, media mentions of drug-induced homicide prosecutions rose over 300 percent between 2011 and 2016.

In June 2017, Florida joined in and passed a fentanyl trafficking law that increased penalties for dealers, including first-degree murder charges.

Lawmakers argued that the new legislation would protect drug users from greedy dealers.

“We want to send a clear message to drug dealers in Florida, and that is that the Florida House is standing strong and we will not tolerate the way you prey on the weak,” Representative Jim Boyd, a Republican and the bill’s primary sponsor, said when the bill passed the state House.

Attorney General Pam Bondi seconded the notion that the law would protect Floridians from dangerous drug traffickers. “Taking Fentanyl just one time can kill—and that is why I want to thank each member of the Florida House for voting to give prosecutors the tools to seek stronger sentences against traffickers selling Fentanyl and other deadly drugs in our state,” Bondi said in a statement.

“Basically as long as we can prove that the person delivered the drug that caused the death—fentanyl—it’s first-degree murder. " —Amy Berndt

When then-Governor Rick Scott signed the bill, he promised it would save the lives of people struggling with substance use disorder. “I’m proud to sign this important piece of legislation today to help fight this national epidemic, which has taken the lives of too many Floridians,” Scott said. “This legislation provides tools for law enforcement and first responders to save lives.”

The law created mandatory minimums for fentanyl possession, including a minimum of three years for four grams, 15 years for 14 grams and 25 years for 28 or more grams. It also cemented first-degree murder as a charge in cases where a homicide results from a drug transaction. In Florida, first-degree murder means an automatic sentence of life without parole or the death penalty.

Amy Berndt, the lead prosecutor in Patrick’s case, told The Appeal that she won’t seek the death penalty. But she’s also not planning to use the threat of a life sentence to get Patrick to plead guilty to lesser charges, as prosecutors often do. She says she’s committed to putting Patrick in prison for the rest of her life.

The new law “definitely helped us,” Berndt said. “Basically as long as we can prove that the person delivered the drug that caused the death—fentanyl—it’s first-degree murder. So with the changes in legislation it makes it easier to prove a first-degree murder.”

Asked if she thought it was appropriate to apply legislation promoted as a way to target large-scale traffickers to one woman sharing drugs with another, Berndt said small-time dealers are the problem.

“I would say that these people are dying as a direct result of the street-level people selling the drug,” she said. Asked if Patrick had sold Gardner the drug, Berndt acknowledged that she had not, but she nevertheless believes life without parole is the right penalty. “She did give it to her.”

Drug policy experts caution that harsher penalties do not save lives—in fact, the threat of more time in prison might increase the likelihood of a fatal overdose if family members, friends, or other users hesitate to call authorities. “There’s not evidence that ramping up criminal penalties in the form of drug-induced homicide laws creates a deterrent and prevents overdose deaths,” Lindsay LaSalle of the Drug Policy Alliance told The Appeal. “And criminalization adds up to a number of adverse impacts. It’s a deterrent to calling 9-1-1. People are not going to feel comfortable calling emergency medical services if they think they’re going to be on the hook for murder.”

Although Gardner’s death was the most recent fatal overdose, it was not the only death at the Marion County Jail in the past year. Four people died by suicide in just five months, prompting Sheriff Billy Woods to bring in outside experts to figure out why people kept killing themselves. (Woods declined to comment on any of the five deaths in the jail, citing an ongoing investigation.)

In separate cases, two women died by suicide after being arrested for stealing from a local Walmart. Diana Lynn Eldredge, 49, was found dead with a bed sheet around her neck last May. She had complained to her boyfriend and brother about the jail staff and conditions and was distraught that she couldn’t make bail. Mary Elizabeth Moody-Lazabeck—who suffered from PTSD, according to her mother, and had been in an out of jail for drug possession, theft, and burglary—killed herself in July at the age of 34. The month after Lorraine Gardner died, 55-year-old Steven Schmitt killed himself in the jail. Just seven days later, Daniel Vanhorn, 35, also died by suicide.

Sheriff Woods, who had pledged to “seek justice, love, mercy and walk humbly” when he was sworn into office in 2017, told the Ocala Star-Banner that the string of deaths “doesn’t mean there’s any major problem,” adding that he’s merely being “proactive” by bringing in outside experts. He said all jails in the country have problems with suicide and deadly contraband.

But overdoses in jail don’t have to be fatal. A month after Scott signed the trafficking legislation, Ocala Community Care, the Marion County jail’s medical and mental health services provider, began to carry naloxone, a medication that can rapidly reverse the effects of an opioid overdose. But the provider’s staff didn’t get to Gardner in time. According to Berndt, Gardner had been dead for hours before medical personnel reached her. They never tried to use naloxone to revive her. Naloxone has no effects on people without opioids in their system, but if administered in time it has success rates approaching 100 percent, according to 11 studies.

Ocala Community Care CEO Loretha Tolbert-Rich told The Appeal that she assumes the staff didn’t think to give Gardner naloxone because she had been in the jail for months, presumably without access to drugs. “If an inmate comes into jail and starts exhibiting these symptoms, perhaps it’s related to opioid overdose. If they’ve been in jail for a substantial period of time, it’s not your thought,” Tolbert-Rich said. “It wasn’t suspected because she had been in here. Since the incident, we pay closer attention to that regardless of how long an inmate has been in.”

Naloxone shocks the system out of the deadly effects of an overdose. But there are also preventive medications, like methadone, that can deter an overdose in the first place, or lessen the likelihood that it will be fatal. Last November, the National Commission on Correctional Health Care and the National Sheriffs’ Association called on jails to introduce medication-assisted treatment, or MAT.

“Jails are on the front lines of this epidemic, and they also are in a unique position to initiate treatment in a controlled, safe environment,” they wrote in a joint report. “Pharmacotherapy—i.e., medication-assisted treatment—is a cornerstone of best practice for recovery from substance abuse. Treatment using MAT, particularly when coupled with evidence-based behavioral therapy, improves medical and mental health outcomes and reduces relapses and recidivism.”

In the report they suggest the Food and Drug Administration-approved medications methadone, buprenorphine, and naltrexone. Buprenorphine and methadone activate the opioid receptors. Both quell cravings and prevent the negative effects of withdrawal, with a few differences: Buprenorphine produces fewer euphoric effects and is less likely to lead to overdose. Methadone is a Schedule II drug, which means it can’t be sold without a Drug Enforcement Administration license, while buprenorphine can be prescribed by a doctor. Naltrexone, an opioid antagonist, prevents the feelings of euphoria and pain relief associated with drug use.

“Most important, MAT can help rebuild and save the lives of those with substance use disorders,” the guidelines note.

Marion County Jail provides very limited MAT.

“We do not give Suboxone [a version of buprenorphine],” Tolbert-Rich told The Appeal. “There’s methadone for pregnant females. That’s what we do for pregnant females because detox in a pregnant female can hurt the baby.”

A spokeswoman for the sheriff’s office said they had begun to administer naltrexone, in the form of Vivitrol, a shot that’s supposed to block the effects of opioids for a month. The shot needs to be administered monthly for about a year.

The Trump administration has boosted the use of Vivitrol over other therapies. The administration’s action plan to combat the opioid crisis—released in March, at the same time that President Trump called on the death penalty for dealers—seemed to favor Vivitrol over buprenorphine and methadone. Alkermes, the pharmaceutical company that produces Vivitrol, has come under scrutiny for aggressively selling the shots—which can cost $1,000—to prisons and jails.

And the drug has flaws. A ProPublica investigation found that people are at higher risk of overdose if they stopped using it early. And, unlike buprenorphine and methadone, Vivitrol requires drug users go through painful withdrawals.

“Methadone and buprenorphine have been shown on a variety of metrics to be far superior to Vivitrol—that includes safety, effectiveness, and cost,” Leo Beletsky, a professor of law and public health at Northeastern University who focuses on drug policy, told Stat News. “The reason Vivitrol is preferred is that it’s a medical version of forced abstinence. That is why it’s been the darling of those who rhetorically support medication assisted treatment.”

Meanwhile, treating prisoners’ opioid use disorders with methadone or suboxone could cut down on the contraband problem. “There’s less for people to be smuggling drugs if they have access to evidence-based treatment and care they need while in the facility,” LaSalle said. And MAT might have a prophylactic effect, so opioid users who overdose are less likely to die. A National Institutes of Health-funded study analyzing data from 17,568 adults in Massachusetts who survived an overdose found that opioid overdose deaths dropped by 59 percent for those receiving methadone and 38 percent for those receiving buprenorphine over the next year.

LaSalle thinks this type of program could have made a difference for Gardner and Patrick.

“Had MAT policy been in place, there may have been a different result,” she said. “It illustrates how are we actually pinpointing the blame instead of looking at broader policies of what works.

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