In the summer of 2019, a Georgia man overdosed and died. Over two years later, a different man has been convicted of felony murder and sentenced to life in prison for selling the drugs that led to that demise.
The conviction is the first of its kind for Gwinnett County, which covers part of Atlanta, with local prosecutors saying that they’re gunning for more after ensuring that Eric Denver Moore, who sold the deadly cocktail to Barth Moser, will face life in prison.
Moser purchased what he thought was heroin. He got something else: a concoction of heroin mixed with fentanyl, another opioid 50 times stronger than the former. Though Moser complained to Moore that the drug looked “green,” he ultimately took it and didn’t survive.
Moore’s conviction balances some competing interests: a ratcheting up of the drug war and a desire to crack down on fraud, as the county zeroes in on people who sold substances marketed purely as one thing when they were actually laced with another.
At least, that’s the strategy for now. “The law says that we can pursue any drug dealers who sell drugs that cause an overdose and death. Currently, we’re choosing to focus on ones that involve some element of deception,” says Brandon Delfunt, deputy chief district attorney for Gwinnett County and the managing attorney of the Gwinnett Drug and Gang Task Force. “We’re starting that way to see how it goes and see how our community responds to it….We may expand.”
We should all worry about such an expansion.
The law in question is the felony murder rule, which allows the state to bring homicide charges against those who didn’t technically commit murder if the death was somehow associated with the commission of a different felony. Governments have contorted the law in some impressive ways as of late: There was the recent case in which a cop killed another cop with his car while responding to what may have been a mental health crisis. In response, the prosecutor charged Jenna Holm, the woman those officers were there to help, with manslaughter. (An Idaho judge recently struck the charge down as unconstitutional, though only after Holm spent around 18 months in jail on $100,000 bond.)
Moore’s prosecution may be yet another contortion, depending on who you ask and depending on where such offenses take place. “The crime is complete once the delivery takes place, meaning that anything that happens afterward is beyond the scope of the crime in a way,” says Brian McNeil, a senior assistant public defender in York County, Pennsylvania, who has represented clients accused of drug-induced homicide. “That would probably cause problems in a lot of jurisdictions.”
Even still, the state’s pursuit of Moore and his ultimate conviction aren’t necessarily beyond the pale. “You’re going outside of the garden variety…situation, where the actual conduct on the part of the defendant is more than just consummating a drug deal,” adds McNeil. “I’m not sure how much of a difference it makes as far as the way that the statutes are drafted, which is part of the problem. If they were limited in a way to something deceptive like that, I think some of these prosecutions would be less egregious. The problem is that they’re not.”
McNeil notes that it is possible Moore didn’t realize the drug was contaminated. “I don’t think that’s out of the realm of possibility that someone who passed off the drug to the ultimate end user would be unaware of the precise content,” he says. But Moore’s conviction doesn’t exactly shock the conscience at first glance.
The problem is that there are plenty such prosecutions that would, and do, shock the conscience—a phenomenon that is not confined to the greater Atlanta area.
Consider Mitchell Peck Jr. He was convicted of drug delivery resulting in death and sentenced to 20 to 40 years in prison for selling heroin to his friend, who later overdosed and died in late 2014. McNeil, who represented Peck, notes that such prosecutions are becoming increasingly common in Pennsylvania even as the concept itself is still a fairly novel one.
As both Delfunt and McNeil note, the statutes are indeed broad, and pave the way for abuses that verge on the fantastical. Emma Semler was convicted of distribution of heroin resulting in death after her friend Jenny Werstler asked that she get heroin to celebrate her birthday. The two shot up together in a KFC bathroom, with Semler, then a teen, leaving the building alive after Werstler experienced a fatal overdose. She was sentenced to 21 years in prison, though a federal court overturned that conviction earlier this year and called for a new trial.
“I’m personally aware of a fair number of cases where…one user [was] literally handing drugs to another user over the course of a joint using session,” says McNeil, “and then one person dies and one person doesn’t.” Such cases can now bring decades-long prison terms, as if physically passing off a drug constitutes a “delivery” any more than handing someone a bottle of strong liquor makes them culpable in any resulting alcohol poisoning. And while the substances involved in these cases are clearly illegal, whereas alcohol is not, it bears mentioning that drug prohibition and the ensuing black markets are a direct cause behind why laced drugs and harder versions of already-harmful substances proliferate in the first place. If safety is the goal here, then a different approach is required.
“If the goal is to better protect people from tragic consequences that’s not what these laws are doing. We have to turn to harm reduction solutions that have proven effective and reject those that haven’t worked,” says Grey Garner, senior staff attorney at the Drug Policy Alliance. “Incarceration of users and low level sellers has never effectively deterred people from using substances, significantly disrupted markets, or prevented overdoses. What they have done is make people less safe, exacerbated inequity, and diverted taxpayer funds that would be far better spent on drug checking and disease prevention.”
Whether or not Moore deserves to spend the rest of his natural life in prison is a matter of debate. Perhaps he does, perhaps he doesn’t. But the same levers used to prosecute him are implicating a slew of others across the U.S. whose crimes don’t merit the attached punishments. For its part, Gwinnett County says it will only focus on the Moores of the world and not the Semlers—for now.