The Winter Springs Police Department in Seminole County, Florida arrested Christopher Toro for murder in January 2018, as the Orlando Sentinel reported. Prosecutors might have cringed at headlines that reported the subsequent dismissal of that charge after an expert witness explained why Toro’s alleged conduct was not covered by the Florida law that was then in effect.

Criminal Justice and Drug Overdoses

Like many parts of the country, Seminole County has experienced a steep increase in opioid-related deaths. Some of those deaths have been related to fentanyl, a powerful painkiller that is primarily prescribed to cancer patients. Fentanyl and similar synthetic opioids are also manufactured illicitly.

According to the Centers for Disease Control, more than 72,000 Americans died from opioid overdoses in 2017. In an effort to be perceived as attacking the problem of drug-related deaths, Seminole County prosecutors have aggressively charged alleged drug dealers with murder for supplying drugs to addicts who die from an overdose.

Prosecutors charged Toro with murder based on the allegation that he provided fentanyl to Alfonso Pagan, who apparently mixed it with heroin. While nobody forced Pagan to use those drugs, charging drug providers with murder when drug addicts overdose is a long-standing but largely ineffective strategy in the war on drugs.

Using the criminal justice system to address a public health problem has never been smart. Charging 72,000 drug suppliers (some of whom are doctors) for murder because opioid users made unwise decisions isn’t a practical way to tackle the problem of deaths caused by drug overdoses.

Devoting public resources to arrests and prosecutions rather than treatment and prevention has been counterproductive, but arrests make headlines. Arrests give public officials an easy way to show the public that they are doing something, even if they aren’t doing something helpful or smart.

Expert Explains Fentanyl to the Court

At the time Toro was charged, the Florida law permitting drug dealers to be charged with murder applied to deaths resulting from the consumption of specific drugs, including “opium or any synthetic or natural salt, compound, derivative, or preparation of opium.” Fentanyl, however, is not synthetic opium.

Fentanyl was not added to the list of drugs to which the murder statute applies until eight days after Pagan’s death. The prosecutor understood that the revised law had not taken effect, but perhaps understanding the value of a good headline, charged about a dozen defendants under the old law.

The prosecutor took the unsupportable position that the statutory reference to “opium” includes all “opioids,” apparently on the theory that different words mean the same thing if they share a root.

Toro’s public defender used the state’s own expert witness to explain the prosecution’s error. Jannet Brown, a crime analyst with the Florida Department of Law Enforcement who testifies as an expert for the state, forthrightly admitted that “fentanyl is a synthetic opioid and not made from opium.”

The prosecutor had no ready explanation for the legislature’s addition of fentanyl to the statute if fentanyl was already covered in the statute’s inclusion of opium. Courts presume that legislatures do not add needless words to statutes.

Charge Dismissed

The judge agreed with the expert, ruling that “fentanyl is not made from opium at all and essentially has nothing to do with opium.” Toro can thank the honest testimony of the state’s expert witness for saving him from being convicted of a nonexistent crime.

Similar logic will likely lead to the dismissal of other Florida murder charges involving deaths allegedly resulting from fentanyl distribution, including a charge against a man who accepted $50 to introduce a drug user to the dealer who sold her the fentanyl on which she overdosed. The theory that a “middleman” commits murder by introducing a drug user to a drug dealer would have strained even if the statute applied to fentanyl.

Whether or not making an introduction can be charged as a murder, the charge should be dismissed because fentanyl was not yet listed in the statute that applies to deaths caused by illicit drug ingestion. Expert testimony is again likely to establish that Seminole County charged a defendant with a crime that did not exist.