Byko: Should drug dealers be charged with homicide?

WHEN MICHAEL Untermeyer announced his candidacy for district attorney - something he has done before - he said something he had not said before, something attention-getting.

He wants to file homicide charges against heroin dealers who lace their product with fentanyl, which can cause death to users. It's a startling idea.

With about 900 heroin and opioid deaths in Philly last year - more than from any form of homicide - the charge would be necessary and appropriate, says Untermeyer, who spent 15 years as a prosecutor in Philly, including stints in the District Attorney's Office and as special counsel in the Inspector General's Office.

He also has ideas about bail - loosen it - and the law prohibiting illegal guns - tighten it - but the homicide beef for drug dealers deserves a close look.

It struck me as really unusual, but Untermeyer tells me Westmoreland County, Pa., is already doing it.

But it's not - not really - four-term Westmoreland County District Attorney John Peck says.

The county did charge four people last year with "drug delivery resulting in death," but that is a separate classification "not under the criminal homicide statute," Peck says. That was four prosecutions out of about 100 drug-related deaths.

Other counties are using the homicide charge, too, Untermeyer says, and he clearly wants to keep it in his arsenal.

Under Pennsylvania law, a suspect can be charged with homicide if he or she intentionally delivers any controlled substance, and someone dies after using it. Untermeyer insists the statute should be used more often.

But what are the consequences of doing that?

It will require drug deaths to be treated as crime scenes, says Center City defense attorney Michael Fienman. It will require additional investigation and resources to establish a link between the drug dealer and the drugs and the person who died. An autopsy would have to be performed, says Fienman, and the medical examiner would have to testify to the cause of death. "All of this costs the city money, and the medical examiner will be cross-examined by someone like me," says Fienman.

I ask Untermeyer about the extra resources that would be required to pay for the added work. He says he can't answer because he's not the DA and doesn't know what resources are at hand.

Another prosecutorial handicap is mentioned by David LaBahn, president of the Association of Prosecuting Attorneys.

The state has to prove that the dealer was the party doing the mixing of the drug and that making it too heavy was deliberate.

Another problem, believe it or not, is getting the cooperation of the friends and family of the deceased. "Most people like their sellers," LaBahn says. "It's a friend, it's a buddy," and they might not want to give him up.

Untermeyer, 65, of Center City, ran for DA seven years ago as a Republican, even though he is a lifelong Democrat. He viewed that campaign as a way to get his ideas on the table. This time, he joins three other Democrats in challenging DA Seth Williams, who appears vulnerable because of ethics issues.

Might running multiple candidates divide the anti-Williams vote and clear a path for the sitting DA? It depends, Untermeyer says, on whether voters view Williams' problems as minor or a serious character flaw.

Untermeyer also has a plan for bail bond reform. His idea is to junk it.

The "failure-to-appear rate in Philadelphia is 35 percent," says Untermeyer, while the same rate in Washington is 11 percent.

The difference, Untermeyer says, is the result of the nation's capital getting rid of cash bail - which is supposed to guarantee that a defendant will appear for trial - and replacing it with a point system. A judge evaluates the suspect on flight risk, degree of danger to the community and prior criminal record.

If the suspect falls below a certain level, he is released, possibly with an ankle bracelet, possibly with orders to attend a program, says Untermeyer. Above a certain level of risk, he is incarcerated without bail until trial.

Untermeyer says the system works and would be more fair to low-income suspects who can't make bail, while reducing the prisoner population and associated costs.

Finally, Untermeyer is endorsing a "zero tolerance" policy for anyone caught carrying a gun without a permit.

"The penalty for the first offense is minimal, maybe 30 days," he says, which is often plea-bargained down to "maybe weekends in jail." Untermeyer wants a mandatory minimum jail sentence of 30 days.

He also would up the ante on straw purchasers, those illegally buying guns for others. A first offense brings a 3 1/2-to-seven-year sentence, which is not mandatory. He'd stiffen that to "some mandatory" jail time, but he's unsure of how long.

To be serious about Philadelphia's gun problem requires serious penalties to show that illegal guns won't be tolerated.

I'm not sure that Untermeyer's remedy is strong enough, but he has placed his ideas on the table.

stubyko@phillynews.com 215-854-5977 @StuBykofsky

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