In 1972, a year after Richard Nixon declared the still-raging war on drugs–America’s longest, costliest, deadliest, most pointless and most damaging to civil liberties–Florida did what it does best: set a new low for uncommon senselessness. It equated heroin-dealing with first degree murder when it results in a user’s overdose death. Other states copied.
No one was prosecuted. Like Nixon’s war, the law was a rhetorical appeal to middle class voters wanting to feel tough. It was targeted at kingpins, not street-level dealers. If kingpins know one thing aside from playing chef to Americans’ limitless appetite for dope, it’s manufacturing distance between producer and user.
Heroin use waned as American servicemen stopped returning from Southeast Asia’s poppy-wreathed killing fields. Drug use didn’t. Cocaine replaced heroin. Oxy replaced cocaine. Fentanyl replaced Oxy. The more states adopted death-by-dealing laws, the more addicts died. Florida harshed up its laws in the 1990s and 2000s. Substance abusers’ death rates spiked–from 6.4 deaths per 100,000 Floridians in 1999 to 25 by 2017. Naturally, the state dusted off the 1972 law and expanded it to include half a dozen drugs, including fentanyl.
This time prosecutions followed quickly. Kingpins still eluded capture. But law enforcement fed dockets and TV cameras with low-level dealers and addicts too stupefied by their disease to know when they’re playing Russian roulette. Addiction deaths in Florida rose to nearly 38 per 100,000 by 2021. If charging addicts and street dealers with murder was intended to be a deterrent, it clearly was having the opposite effect.
Lawmakers too stupefied by their own bad faith decided the murder law wasn’t harsh enough. Last year they changed the law yet again to make it easier to prosecute. It was a two-word change. For example, fentanyl doesn’t have to be the proven or “proximate” cause of death anymore to charge murder. It only has to be “a substantial factor” in the cause of death. “Proximate” was vague enough. “Substantial,” at least in legal language, is a slither of subjectivity.
I don’t think prosecutors would apply the same reasoning to death by Taser, for example, if a Taser jolt was merely a “substantial factor” in the death of a person who suffered from a heart condition. Cops and stun-gun manufacturers fought that line of blame very hard to defeat lawsuits. Prosecutors have now embraced that exact reasoning as the law gave up all pretenses of scientific proof in favor of judgment calls.
That’s not the worst part of the law. The removal of premeditation, a fundamental tenet behind first-degree murder, is. Forgive the resort to Latin but the only two Latin words I know and the only two Latin words anyone needs to know to understand criminal law are mens rea, which can crudely be translated as the “guilty mind.” The words refer to the intent of the defendant. Intent defines the level of prosecution. If John set out to inject Frank with fentanyl intending to kill him, then of course it’s premeditated. It’s first degree murder. But if John was too negligent, too stoned to know what he was doing when he injected Frank, he was certainly reckless, but he wasn’t committing a premeditated murder. Manslaughter certainly. But not murder.
Fifteen to 30 years in prison for manslaughter is not a minor penalty. Notably, the Flagler County Sheriff’s Office has charged manslaughter in such cases only for the grand jury, juiced by the State Attorney’s office to up the charge (there are no defense attorneys in the room during grand jury proceedings).
Most of the time defendants plead out and end up with sentences of decades in prison. Even those have generally been outrageously excessive. Occasionally, defendants gamble. Three cases have gone to trial in Flagler County. I covered all three.
Give credit to juries. They can sometimes see through the law’s kangaroo furs. One ended with an acquittal for the obvious reason that the fatal drugs couldn’t be traced to the defendant. (He was sentenced to five years in prison anyway on other charges, because there’s nothing like the wounded vanity of a prosecutor.) Another ended with a manslaughter conviction, 30 years, extended to 40 when the judge decided to tack on an additional sentence on an unrelated charge to run consecutively, instead of the usual concurrence.
Last month, with the dirty dishwater stains of the new law helping, a jury found a defendant, Brian Pirraglia, guilty as charged and for the first time in Flagler County history, the resulting sentence was life in prison without parole.
I have too much regard for the court and its officers to call it a travesty of justice, and prosecutors have told me that they don’t like trying these cases. They are only the law’s willing executioners. That doesn’t change the outcome. Brian Pirraglia was not an upstanding citizen. He apparently robbed his “best friend” Brian O’Shea after he allegedly killed him with a shot of fentanyl. But aside from the not-so-minor fact that O’Shea’s role either in having Pirraglia inject him, or injecting himself with Pirraglia’s dose, seemed to have been irrelevant to prosecutors and the jury, sentencing a man to life in prison without parole for reckless stupidity is its own crime. It adds to the casualties of a war on drugs discredited the day it was declared, it mocks our sense of justice, it is cruel, and it is unusual.
Law enforcement officers, including our sheriff, repeatedly say we’re not going to arrest our way out of this addiction crisis. They’re right. But the law disagrees, and it’s not as if sheriffs’ and police officers’ lobby groups are beating down lawmakers’ doors to push for more humane, less punishing and less expensive alternatives.
Arrests and convictions never cease. Nor do deaths: 107,000 in 2023. There is no deterrence, no reason, no justice. There is vengefulness. It’s a good feeling to some when that guilty verdict rings out in the courtroom. I’ve felt it myself. But it’s the judicial system’s version of a shot of fentanyl, a high as deceptive as it is fleeting. A man has died. Another man’s life is over. No point to either, and neither will stop the carnage. This is not deterrence. It is not justice. It is vengefulness. It is nihilism in law.
Pierre Tristam is the editor of FlaglerLive. A version of this piece aired on WNZF.
