Does the penalty fit?

If a bill that’s in the state congress becomes law, Pennsylvanians charged with drug delivery resulting in death could face a minimum penalty equal to the penalty for third-degree murder. But that’s a far cry from third-degree murder, which is the penalty legislators first sought for the crime.

A bill that some say originally was meant to protect young people from drug overdose has morphed into a proposed law that would prosecute a person for the drug-influenced death of a person of any age. These days, the state Senate Judiciary Committee is trying to decide if the punishment for breaking this proposed law fits the crime.

Pennsylvania legislators say they want to deal harshly with drug dealers and others who they say are responsible for people dying from drug use. Politicians have been using the legislative process to address the issue, and judging from the voting success that they’ve had so far, it seems that a new law could be on the books as soon as early next year. House Bill 1704 overwhelmingly passed the state House by a vote of 194-0, with nine absent members not voting on the resolution.

Some critics of the proposed law say legislators are taking a cookie-cutter approach to a complex issue, while other skeptics question why more laws are needed to address a wrong that already is covered by several statutes.

Pennsylvania state Sen. Stewart Greenleaf, (R, Willow Grove), who chairs the senate judiciary committee and also is a lawyer, says the committee is scrutinizing HB 1704. He notes that the Pennsylvania Supreme Court ruled that a person couldn’t be charged with murder without all of the other elements of murder being present, such as malice and intent.

“Now we’re talking about someone who doesn’t necessarily have malice or intent,” Greenleaf says. Legislators must decide whether the punishment fits the crime, or whether it should be modified, or left to the court’s discretion.

Pennsylvania House Bill 1704 began as state Senate Bill 480 and was sponsored by state Sen. Jane Orie (R, McCandless). The bill originally provided for a third-degree murder charge against anyone found guilty of giving, selling or administering a drug to a minor 17 or under who later died in part because of that drug use.

Earlier this year, the Pennsylvania Supreme Court ruled the would-be law unconstitutional. Now legislators are taking another swing at the issue in HB 1704, sponsored by state Rep. Jeffrey Pyle (R, Ford City). While the possibility of a third-degree murder charge for drug delivery resulting in death is no longer on the table, the bill now would make the crime a first-degree felony, with the same mandatory minimum as in the previous version of the bill—five years in jail and a $15,000 fine.

One caveat, which was removed from the original bill, was in the mandatory minimum penalty of $15,000, “or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity,” SB 480 reads.

The bill went even further, attempting to preclude certain criminal defenses:

“It shall not be a defense to a prosecution under this section that the decedent contributed to his own death by his purposeful, knowing, reckless or negligent injection, inhalation or ingestion of the substance, or by his consenting to the administration of the substance by another.”

In other words, forget about that defense strategy that seemed like a no-brainer. If you were accused of this crime under the earlier version of this law, you wouldn’t have been able to argue that the person who died willingly took the drug.

It is ironic that this section of the original bill was patently unconstitutional, attempting to strip due process rights from defendants. It’s ironic because Sen. Orie is a lawyer and she should know that such wording is unquestionably wrong.

Knowing the history of this legislation allows a reader to see where some of these legislators have been coming from. Understanding the evolution of this would-be law also clarifies the issue of what legislators are trying to do, and what such a law might accomplish.

HB 1704 offers far less to argue with than its predecessor. The bill is stripped down to its essence, and reads:

“A person commits a felony of the first degree if the person intentionally, knowingly or recklessly administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance or counterfeit controlled substance in violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, and another person dies as a result of using the substance.”

What about personal responsibility, one might ask. Shouldn’t people be responsible for taking drugs that lead to their deaths?

On the federal level, people are being made to take responsibility, at least minimally, for their eating habits. Fast food companies have been able to get legislation passed that disallows lawsuits by people for wrongful death from eating the fatty foods that fast food joints sell. And kids are taught from kindergarten on that drugs are bad, and that street drugs are unsafe. Supporters of HB 1704 don’t see any discrepancy in prosecuting people for the deaths of folks who should’ve known that there are risks to taking illegal drugs.

Even though the provision allowing prosecution for murder for the death of a minor is not in HB 1704, the same mandatory minimum penalty of a first-degree felony, five years in jail and a $15,000 fine, applies to anyone found guilty of drug delivery resulting in the death of a person of any age—whether she’s seventeen, 45 or 95. Despite this fact, it is clear that both of the bills were inspired by the much-publicized deaths of young western Pennsylvanians who were involved in drug use.

Many Pittsburghers may recall Brandy French, a Sewickley 16-year-old who died on May 20, 2001, after taking some Ecstasy pills. The girl’s death galvanized the opinion of legislators, who wanted to do something about the issue even as the courts were deciding the case.

Gregory Ludwig, 23, was charged with homicide on the recommendation of Allegheny County Coroner Dr. Cyril H. Wecht. Ludwig was charged with drug delivery resulting in death because he sold the Ecstasy to a friend who gave it to French. But the state Supreme Court ruled that prosecutors lacked evidence that Ludwig sold the drug maliciously, or that he knew that French’s death would result from the sale of the drugs, or that he intended for her to die from using the drug.

SB 480 would have eliminated the need to prove malice in order to get a third-degree murder conviction, if the drug was sold to a person 17 or younger.

HB 1704 seems to be a way for irate legislators to attempt an end-run around the state Supreme Court’s ruling that you can’t charge a person with murder for selling drugs to another person who later died from the drugs. The outcome of the Ludwig case earlier this year prompted Pyle to write HB 1704, he says. He makes no bones about his reasons for wanting the new law.

“I’m about as fancy as a brick,” Pyle explains. “I want threat of reprisal to anyone who dares to bring poison into my back yard. If they do it and some kid dies, they’re going to be held accountable. I want this penalty stiff and omnipresent.”

Pyle says that when he came up with the legislation he immediately received the support of 108 co-sponsors to the bill, as well as the backing of the Fraternal Order of Police, the District Attorneys association and other law enforcement groups. Pyle expects HB 1704 to be approved by the senate. “It’s going to pass, it’s just a matter of when,” he says.

Orie also points to the Ludwig case as the catalyst for her legislation.

"When Gregory Ludwig was arrested for supplying the drugs that resulted in the death of Brandy French and the court dismissed the case a year later, in 2002, I introduced legislation to amend Pennsylvania law to address the court's concerns. I introduced SB 1537 at that time to ensure that a person who provided drugs to another which resulted in death was harshly punished. My legislation could not advance because the Common Pleas Court decision was appealed and was being litigated in the courts.

“It is unconscionable that drug dealers like Gregory Ludwig are not being held responsible for the deaths of victims like Brandy, and I am committed to ensuring that a state law is enacted to provide swift and harsh punishment.”

Pyle is looking for such punishment, as well, partly for personal reasons. The legislator, a former high school teacher, was moved by the Aug. 3, 2002 death of Zachary Joseph Zion, 17, of Ford City. Zion died of a heroin overdose after snorting the drug with friends in a Kittanning hotel room.

“That hit me personally because he was one of my students at school,” Pyle explains. “He was an athlete, he was involved in the community. This kid used to go to the public library with me and read to the younger kids. It really, really bothered me.”

Orie is clearly annoyed by the outcome of the Ludwig case, but she hopes that Pyle’s bill will be enacted.

“This summer, the Pennsylvania Supreme issued its opinion, striking down existing state law holding drug dealers responsible for overdose deaths. The court found Pennsylvania law deficient because the law required that ‘malice’ be proven in order to convict the drug dealer of third-degree murder. And, the Supreme Court found that supplying drugs does not support a finding of ‘malice,’” Orie explains. “As a result of the ruling, I and other members of the Senate Judiciary Committee have been working to develop a new law that will withstand court challenge and will put these drug dealers behind bars, punishing them for the crimes they committed.”

“I and other members of the Committee are poised to act on a proposed new law that will ensure that those who supply drugs that result in death are severely punished. This legislation, HB 1704, has already passed the House of Representatives and I will work for its swift passage in the Senate, “ she says.

But some legislators are wondering if HB 1704 is attempting to punish people twice for the same crime.

“There already is a mandatory minimum [sentence] for selling drugs. That sentence depends upon the drug and the amount of the drug,” Greenleaf says.

The mandatory minimum sentence prescribed in HB 1704 is assailable for other reasons, Greenleaf notes. “The question is, we still have the same penalty for a crime that no longer amounts to murder. Should we apply the same penalty, when the offense wasn’t actual murder?” he says.

In cases where people overdose on drugs, there can be very aggravating facts, but there also can be facts that amount to negligence, Greenleaf notes. "There should be a difference in punishment here."