How a 2014 overdose led to Kristen's Law, and what it means for RI drug prosecutions - The Providence Journal
Will stiffer sentences for drug dealers save lives, as the law intends, or open a "Pandora's box" of unintended consequences?
Special to The Journal
It was raining in Portsmouth that September night in 2018, so Keith Gillette and Andrew Paiva waited inside Clements Marketplace for the dealer to arrive.
Around 7:30 he pulled up in a car. Paiva stayed inside while Gillette walked out to the parking lot and climbed into the back seat. Gillette gave the man $70 in exchange for 12 wax baggies containing what he thought to be heroin. Four for himself, eight for Paiva.
The two met back inside and split up the purchase before departing on foot down East Main Road to the Portsmouth bus stop.
Gillette used his four bags as soon as they arrived back at the McKinney Cooperative
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Grab some of the shelter’s Narcan in case you overdose, Gillette told him. He had planned to check on Paiva later that night but fell asleep.
Around 11:15 p.m., Paiva’s roommate found him lying on his bed with clear overdose symptoms. He administered a dose of Narcan, but his efforts at resuscitation were unsuccessful. When Newport police officers arrived in response to a reported overdose, Paiva was unconscious and alone. The officers injected him with two more doses of Narcan before transporting him to Newport Hospital.
But by 12:10 a.m. on Sept. 11, 2018, Andrew Paiva, 29, had died. Not from a heroin overdose but from fentanyl intoxication — a lethal hit from a man he’d never met.
Haunted by his friend's death
Gillette, 43, didn’t say much to detectives at first.
He and Paiva had hung out at the shelter all day before taking the RIPTA 60 bus to grab a slice at The North End Pizzeria in Portsmouth, Gillette told them.
At one point, Paiva had wandered the shelter trying to break a $100 bill that his mother had given him for groceries, but otherwise the two were together the whole evening. Neither had purchased any drugs, Gillette assured detectives, and they had parted ways when they returned to the McKinney shelter that night.
About a month later, Gillette encountered the dealer who’d sold him the deadly fentanyl at a Stop & Shop in Fall River. Gillette warned him that someone had died from the drugs he had sold.
“People die off my [expletive] all the time. I don’t give a [expletive],” the dealer replied, according to court records.
This angered Gillette, who had been haunted by his friend’s death.
A few days later, he called the Newport Police Department despite knowing that he might be criminally charged himself. He told them that he’d lied when they’d first questioned him. Now he wanted to come in and tell the truth.
How the fateful drug deal went down
What Gillette told the police on Oct. 15, 2018, would lead to a precedent-setting indictment that culminated in a plea deal that has landed a drug dealer in prison for 18 years:
Paiva, who’d been suffering from an opioid addiction, had appeared “dope sick” when Gillette first encountered him that day in September at the homeless shelter. Feeling bad for him, Gillette called a contact whom he’d bought heroin from before. They arranged a meet-up.
He and Paiva took the bus to Portsmouth, where they stopped for a slice of pizza before crossing the street to buy syringes at a CVS. Paiva was nervous about purchasing the syringes, so he handed money to Gillette, who bought them for him. They then crossed East Main Road to Clements Marketplace, where Gillette purchased the drugs.
He identified the dealer as Cary Pacheco, 57, of 251 Briggs Rd., Westport, Massachusetts. Pacheco, Gillette said, was the man who had sold him the fentanyl-laced heroin that resulted in Paiva’s death.
Police were able to determine through the Massachusetts Probation Service that Pacheco was wearing an electronic monitoring bracelet at the time of the drug deal. The bracelet placed Pacheco in the parking lot of Clements Marketplace at 7:30 p.m. on Sept. 10, 2018.
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On Nov. 29, Gillette, along with an undercover Newport police detective, arranged to buy 20 bags of fentanyl from Pacheco. Another man, Michael Vandenburgh, now 51, of Fall River, carried out the transaction on behalf of Pacheco, according to police. When the deal was complete, Pacheco and Vandenburgh were arrested. At the time of the arrest, the police found 61 additional bags of fentanyl in Pacheco’s possession.
Vandenburgh has since pleaded no-contest to two of the four offenses he was charged with in connection with that transaction and has completed a one-year prison term. The state dismissed the other two counts.
On Sept. 30, Pacheco pleaded no contest in Superior Court to drug delivery resulting in death and received a 35-year sentence with 18 years to serve in the Adult Correctional Institutions. The remaining years were suspended. He will be on 17 years’ probation upon release.
The plea deal made Pacheco the first person in Rhode Island to be sentenced under the controversial Kristen’s Law, a felony that carries a penalty of up to life in prison.
Will Kristen's Law accomplish its goal?
Kristen’s Law took effect in 2018, creating a clearer pathway than had previously existed for prosecutors to charge dealers for selling drugs that lead to a fatal overdose. It was named after Kristen Coutu, a woman from Cranston who died of an overdose at age 29 in 2014.
Do Like Paiva, Coutu thought she was using heroin, but her dealer had sold her fentanyl, a far cheaper and more potent drug. She died alone in her mother’s car.
“There should be consequences for the people who are career criminals, career drug dealers, who are playing Russian roulette with people’s lives,” said Sue Coutu, Kristen’s mother, who lobbied at great lengths to pass the bill.
Legislators introduced Kristen’s Law as a way to reduce the supply of cheap, lethal drugs and hold “career criminals” accountable.
In 2018, the year Kristen’s Law took effect, the Office of the Attorney General reported that overdose deaths were the leading cause of injury deaths across the state, killing more Rhode Islanders than suicide, homicide, violence-related deaths and car crashes combined.
That year, 314 people died of overdoses in Rhode Island, according to the state Health Department.
Andrew Paiva was one of them.
“If you are doing this with malice, selling toxic substances to someone who is vulnerable and they die, [you] should be held accountable,” said Joee Lindbeck, a former special assistant attorney general who led the AG's office in lobbying for the legislation.
But harm-reduction advocates are not convinced Kristen’s Law will achieve what it is intended to do. Such laws have had no effect in decreasing the sale of illegal drugs by street dealers, according to studies they cite. They also worry that Kristen’s Law will be used unfairly to charge vulnerable users with homicide if they share drugs with a friend who then dies of an overdose.
Several advocacy groups spoke out against the law when it was being debated in the General Assembly.
In a letter to then-Gov. Gina Raimondo, signed by dozens of medical organizations and professionals across the state, the Rhode Island Medical Society wrote: “The bill’s language does not prevent the prosecution of ‘small time’ dealers who trade or sell drugs, and who may themselves struggle with substance use disorder, or those who provide drugs to a friend for a few dollars or in exchange for a bed for the night. It is these individuals, not drug kingpins, who are most likely to get charged under this law.”
“Working towards public health solutions, not retribution, is what we need,” said Haley McKee, co-chair of the Substance Use Policy, Education, and Recovery PAC, who recovered from substance abuse herself and lobbied against Kristen’s Law.
The bill eventually passed, but with some amendments. The original bill had called for a mandatory life sentence. The amended version allows for life sentences to be imposed but does not make them mandatory. It also carves out a Good Samaritan exception, which grants immunity to people who call 911 if they believe that a user is overdosing.
Defense raises constitutional objections to Kristen's Law
Pacheco has a lengthy criminal record, including 10 arrests for distribution and/or possession of drugs from 1984 through 2017.
In March 2019, a Newport County grand jury indicted him on five charges relating to the undercover drug deal that led to his arrest and the drug transaction that led to Paiva’s death: one count of delivering fentanyl; one count of delivering heroin; one count of delivering tramadol; one count of controlled-substance conspiracy and one count of delivering fentanyl, resulting in death.
Pacheco’s attorneys attempted in April to get the drug delivery resulting in death charge dismissed. In a court filing in support of the motion to dismiss, the defense argued that the wording of Kristen’s Law is “unconstitutionally vague.”
Prosecutors countered that the statute specifies that a person is guilty of drug delivery resulting in death if he or she unlawfully delivers drugs to a person who subsequently delivers the substance to another adult, death resulting. What took place between Pacheco and Paiva “is exactly what is prohibited” by Kristen’s Law, said Roger R. Demers, a special assistant attorney general.
The defense also argued that Kristen’s Law “allows for the imposition of an unconstitutionally excessive punishment” in violation of both the United States and Rhode Island Constitutions.
In response, prosecutors pointed out that because he had not yet been convicted or sentenced, Pacheco “lacks standing to raise a constitutional challenge to the penalty provided in the statute.”
On April 20, Superior Court Justice William E. Carnes Jr. denied the defense’s motion to dismiss, paving the way for the case to proceed to trial.
Instead, Pacheco made a deal with prosecutors: He would retract his original plea of not guilty and plead no contest to the drug delivery resulting in death charge. In return, prosecutors dismissed the four other charges related to Pacheco’s arrest in 2018.
“Though it pales next to the price paid by his victim, [Pacheco] has now paid a heavy price himself: 18 years in state prison, every year entirely deserved,” said Attorney General Peter F. Neronha in a statement.
“[Pacheco] knew exactly what he was doing: distributing a potentially lethal dose of fentanyl to whoever ultimately used it. He neither knew the victim nor cared what happened to him. He dealt drugs for profit, significant profit, without regard to the potentially life-altering consequences,” Neronha added.
Standing before Pacheco, Brittany Paiva, the victim’s sister, offered her victim impact statement.
“Andrew is the type of person that would give you the shirt off his back, his food, even his last dollar,” she told the court. “He always made me laugh.”
“My brother died the day before my 27th birthday,” she said. Her family spent that day deciding what color coffin her brother would be buried in. “For the rest of my life, the passing of my brother will overshadow my birthday.
“The best gift I could ask for is finally having closure, and my brother can be at peace.”
Still, Brittany Paiva said, Andrew’s mother will never dance with him at his wedding. He will never again laugh with his sister. There will always be an empty seat at the table on holidays. And he will never experience life again.
Asked if he had anything to say following Brittany’s remarks, Pacheco replied, “No, your honor.”
Thousands prosecuted under similar laws nationwide
While Pacheco is the first person in Rhode Island to face a drug delivery resulting in death charge, thousands have been prosecuted under similar laws across the country. Between 2010 and 2017, the number of such charges brought by prosecutors in a year jumped from 66 to 699, according to the Health in Justice Action Lab at Northeastern University.
More than two dozen states now have drug delivery resulting in death laws on the books, though they vary greatly in language and enforcement across states.
Rhode Island is one of eight states that allow for a sentence of up to life in prison for drug delivery resulting in death. Four states allow for the death penalty and 13 enforce maximum incarceration periods of between 10 and 60 years. Under federal law, a person found guilty of drug delivery resulting in death now faces a minimum of 20 years in prison.
The Health in Justice Action Lab reports that between 1974 and 2018, the state most active in pursuing drug-induced homicide charges was Pennsylvania, at 731 cases, followed by Ohio, at 432 cases, and Wisconsin, at 405.
Often, the defendants are themselves struggling with substance use disorder.
“Out of the half-dozen drug delivery resulting in death cases that I’ve been assigned to as a public defender, all of the defendants were drug users,” said Joshua Neiderhiser, an attorney in the Office of Conflict Counsel in York County, Pennsylvania.
A majority of drug delivery resulting in death prosecutions are brought against people who are not drug dealers at all, according to the Health in Justice Action Lab. In a sample of 213 such cases between 2000 and 2017, 50% of those accused were victims' caretakers, family members, friends or partners; 47% of those accused were dealers; and 3% were doctors.
Most of those who fall into the category of drug dealer tend to be at the lower level.
“It’s rare that you get anybody who’s actually kind of a nasty or big-time dealer,” said Jeremiah Goulka, director of justice policy at the Health in Justice Action Lab.
Still, Neronha said Kristen’s Law is “a useful tool for prosecutors to have in their toolbox.”
Before Kristen’s Law was passed, drug delivery resulting in death cases were often charged under the felony murder rule, “which jurors have trouble with sometimes,” Neronha said. The felony murder rule says that a person can be charged with first-degree murder, even if they were not the actual killer, if they were involved in a dangerous felony that resulted in a death.
“Jurors have a hard time deciding liability in a complicated context," Neronha said.
Kristen's Law "clarifies that a drug dealer could be culpable,” he added. The question is not whether the law should exist, he said, but when it should be used.
Neronha said he has instructed his prosecutors to bring every case “that might involve Kristen’s Law” to his attention before charging a person.
Opponents fear racial disparities in prosecutions, sentencing
Despite Neronha’s assurances, some in Rhode Island continue to worry that prosecutors will start using Kristen’s Law to charge lower-level dealers.
These laws are like “a Pandora’s box,” said Sarah Seymour, project coordinator at the Health in Justice Action Lab. Once prosecutors start using drug delivery resulting in death charges in a state, the standard for who counts as a high-level dealer becomes looser.
“Something that we really question is: who is a dealer?” said Seymour. “It’s often a very biased perspective. It’s very often young Black men.”
A disproportionate number of charges are being brought in drug delivery resulting in death cases where the victim is white and the dealer is a person of color, according to the Health in Justice Action Lab. And there is disparity in sentencing based on race. From 2008-2018, the median sentencing for Black defendants convicted under such statutes was 10 years, compared with 6.5 years for white defendants, the Health in Justice Action Lab said.
Critics also point to evidence that it could scare drug users from calling 911 in the case of an overdose, even though they’d be protected from prosecution by Rhode Island’s Good Samaritan law.
Rhode Island is one of the only states with a Good Samaritan law that covers deaths, said Goulka. Most only cover possession. This makes Kristen’s Law “a relatively sane law in a context where it’s not sane at all,” he said.
But research shows that drug delivery resulting in death laws are “ineffective at just about every level,” Goulka said.
Members of the Paiva family are glad that Pacheco is being held accountable for their son’s death. But they also express concern that Kristen’s Law will be used to prosecute people who, like Andrew, struggle with substance abuse and may share drugs that lead to a fatal overdose.
With reports by Audrey Kim
Marina Hunt is passionate about telling stories that investigate today's most pressing social and political issues and illuminate the humanity at their core. Currently a documentary film researcher in New York City, she graduated with a history degree from Brown University, where she also studied journalism and international relations.
source: https://www.providencejournal.com/story/news/courts/2021/10/15/how-kristens-law-affect-drug-dealer-prosecutions-ri/5946952001/
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