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"She didn't ask to be dead at 29"

On a cold February night in 2015, 29-year-old Kristen Coutu, who struggled with a substance use disorder, texted Aaron Andrade, who went by the street name "Lucky," looking for heroin. They agreed to meet in Cranston, where he sold her a $40 package of heroin. As Aaron Andrade rode off in his gold Audi with two crisp $20 bills, Kristen used what she thought was heroin and died within seconds of fentanyl intoxication, alone in her mother's car on a dark street.

Aaron Andrade knew his actions were illegal and could lead to a fatal overdose. Unlike Kristen Coutu, his actions were not driven by an addiction. His actions were driven by greed, and he did not care about his victims. During the investigation into Kristen's homicide, Cranston Police traced several non-fatal overdoses to controlled substances sold by Andrade.

When Aaron Andrade spoke to the court during his sentencing on a charge of second degree murder, he apologized to Kristen's mother and his own mother, saying "She's been telling me for years to stop doing what you're doing. I just want to say sorry for both of them."

This story is all too familiar to many Rhode Island families. Kristen didn't ask to be dead at 29. No one struggling with drug addiction asks to die. Yet, there are drug dealers who, like Aaron Andrade, are only out to turn a profit from those struggling with addiction and have no regard for human life.

According to the Drug Policy Alliance, more than 35 states have statutes that provide for criminal liability in a drug overdose death. The Federal government and twenty (20) states have specific drug induced homicide laws of which the highest penalty is the death penalty. In fact, if a delivery resulting in death was charged under Federal law, the deliverer would be subject to up to life imprisonment with a mandatory minimum sentence of twenty (20) years.

Rhode Island does not currently have the necessary language to address all instances of unlawful drug deliveries that result in death. The only provisions of the General Laws that may be applicable to a drug delivery death resulting are first degree felony murder and second-degree murder. H7715/S2279, known as Kristen's Law and sponsored by Speaker Nicholas Mattiello and Senator Hanna Gallo, clarifies criminal liability for those deliveries that result in death and provides that all drug dealers may be held liable for the death that results from their delivery, not just deaths that occur within the transaction.

Kristen's' Law was amended after testimony in hearings before the House and Senate Judiciary Committees to clarify that the intent of the legislation was to hold drug traffickers accountable and to address concerns that those suffering with substance use disorders would be subject to criminal prosecution.

In addition, the amended legislation expanded the state's current Good Samaritan law, making it crystal clear that the individual who, in good faith, without malice and in the absence of evidence of an intent to defraud, seeks medical assistance for someone experiencing a controlled substance overdose shall not be charged or prosecuted for violations of the section, if the evidence for the charge was gained as a result of the seeking of medical assistance.

Yet, despite the amendments, opponents continue to drive a false narrative about Kristen's Law without providing even an ounce of proof of their claims.

"It is clear that the opponents of this legislation are trying to use inflammatory language to invoke fear rather than having an honest conversation about the criminal justice system and what this bill actually accomplishes in comparison with current law," said Attorney General Peter Kilmartin.

"The opioid crisis is killing Rhode Islanders daily, and we must take a comprehensive approach to fix the problem, and that approach must include a role for the criminal justice system. To think that the criminal justice system does not have a role to play in holding drug dealers criminally accountable for deaths that result from their illegal activity is shortsighted and nave," he added. "The General Assembly has passed a number of positive measures to address the crisis and help individuals who struggle with substance use disorders, but there has been zero effort until now to hold the criminals putting these deadly drugs on our streets accountable. Simply put: drug traffickers should not get a free pass for killing people."

"It is equally appalling that members of the medical community oppose this legislation, yet refuse to take responsibility for their own role in this crisis through the over prescribing of opioids to patients. I still question the medical community's opposition to the prescription drug monitoring program legislation in the 2017 Legislative Session that held prescribers accountable for their prescribing practices. Perhaps they use inflammatory language in opposition to such bills as a diversion from their own culpability in the opioid/heroin/fentanyl crisis," added Kilmartin.

To address the false claims, Attorney General Kilmartin provided a point-by-point explanation of the provisions of Kristen's Law in a letter to members of the House of Representatives. In part, the letter states:

Discretion

In their May 21, 2018 letter, The Center for Prisoner Health and Human Rights stated that enacting H7715 was "poor policy to leave such broad prosecutorial discretion to law enforcement, [that] sends a chilling message to the community." First, that statement is completely offensive to the law enforcement officers and prosecutors across this state who are on the front lines of the opioid crisis. But more importantly, it is absolutely false.

Felony murder has been the law since the common law. Felony murder is any death committed in the perpetration of enumerated felonies, including the felony manufacture, sale, delivery, or other distribution of a controlled substance otherwise prohibited by the provisions of chapter 28 of title 21. There is no intent element in felony murder. The penalty for first degree murder is mandatory life. In addition, first degree felony murder that involves a murder committed during the course of sale, delivery, or other distribution of a controlled substance is one of the seven (7) enumerated offenses that is subject to life WITHOUT parole. Second-degree murder is subject to imprisonment of up to life.

I find it hard to believe that we are sending a "chilling message" to the community when first degree felony murder that can be subject to life without parole, the harshest sentence available under Rhode Island, has been the law for decades. When speaking about "such broad prosecutorial discretion," it is important to note that drug delivery resulting in death has been charged and prosecuted, to the best of my knowledge, twice since 1989. Those numbers make it clear that law enforcement and prosecutors are using their discretion in charging drug deliveries resulting in death.

H7715 is merely trying to address a grey area in the murder statute. It does not change policy, in fact, H7715 provides more protections than the current law. For the opponents not to recognize that is simply absurd and unconscionable.

Delivery of a Controlled Substance

The violation of a delivery of a controlled substance is simply stated, a person must have unlawfully delivered a controlled substance to another person. The sentence for a delivery of a controlled substance is up to thirty (30) years OR up to life, the same penalty as manslaughter and second-degree murder. R.I. Gen. Laws 21-28-4.01 (a)(2) and (b)(2)(i). There are no protections in the delivery statute for those suffering from substance use disorders, low level dealers, or Good Samaritans.

Exchange of Value

The substitute A includes that an "exchange of value" must occur in the delivery transaction for liability to apply. This is a concept that has never been contemplated in the charging of a delivery of a controlled substance. In adding this language, H7715 is protecting those who are sharing or using a controlled substance together, but not making a profit from such use.

Good Samaritan Protection

Currently, Good Samaritan protection is generally for the mere possession of a controlled substance. The substitute A expands Good Samaritan protection to a delivery. H7715 is attempting to save lives by deterring drug deliveries, but it is also very important that if a delivery occurs and an overdose results that the deliverer makes a phone call to save that victim's life.

Lengthy Criminal Sentences

The opponents also state that the "use of a public health approach, not lengthy criminal sentences for users and small-time dealers, is essential for our state's ability to continue to make headway in this crisis." The opponents' argument again fails to reflect the current state of law. As stated above, delivery of a controlled substance is already subject to a prison sentence of up to life, the same penalty contemplated in H7715, but this is where discretion in all aspects of the criminal justice system comes into play. The standard offer for a street-level delivery of a controlled substance, an up to life offense, is a minimal imprisonment sentence. This does not take into account any evidence of mitigation or aggravation. The fact the individual has no record, is suffering from a substance use disorder, was dealing to support their disorder, or was a low quantity transaction is all something that is considered by law enforcement, the prosecutor, the defense counsel and the court. Further, under 13-8-13, a person sentenced to life would be eligible for parole after twenty (20) years. Under 13-8-9, a person sentenced to a term of years would be eligible for parole after serving one-third (1/3) of his or her sentence.

To not acknowledge the discretion of the criminal justice system is at worst a falsehood, and at best, a gross misrepresentation of the truth.

"We understand that this is a complex issue, but we need to send a strong message to drug traffickers if you knowingly deliver deadly doses of drugs, you will face very serious consequences. Overdose deaths should always be looked at through a law enforcement prism as distributors of these deadly drugs know exactly what they are selling while the person who suffers from a substance use disorder may not be aware of what he or she is taking," continued Kilmartin.

Overdose deaths are the leading cause of injury deaths in Rhode Island; they kill Rhode Islanders more than suicide, homicide, violence-related deaths, and motor vehicles crashes combined. In 2016, there were three hundred and thirty-six (336) overdose deaths, of which fifty eight percent (58%) involved fentanyl. In 2017, over sixty three percent (63%) of the three hundred and fourteen (314) overdose deaths involved fentanyl.

"Drug traffickers who are selling these deadly substances to those struggling with addiction need to be held criminally liable for the deaths they cause. Kristen's Law ensures that the Rhode Island General Laws provide that liability," concluded Kilmartin.

As Kristen's mom Sue waited for her daughter to come home that night, a sinking feeling came over her. She knew something was wrong. And when Sue answered the knock on the door to find two officers from the Cranston Police Department she cried, "Please don't tell me my daughter is dead. Please don't tell me my daughter is dead. Please don't tell me my daughter is dead."

While the criminal justice system was able to hold Kristen's killer accountable, it does nothing to ease the pain her mother, family, and friends endure each day. Kristen and the countless others like her deserved better than to be sold instant death for $40. She didn't ask to be dead at 29.

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