In all, the public defender’s office had taken up six fentanyl murder cases in the past few months that were pending, and each followed the same pattern: an addict sold, distributed, or shared drugs that directly resulted in the death of someone, which technically met the definition of first degree murder and the possibility of a life prison sentence in Oklahoma and a growing number of other states.
Texas Gov. Greg Abbott signed legislation this month to reclassify fentanyl overdose deaths as “poisonings,” and Arkansas passed a “death by rendition” bill in April to charge some overdoses as murder in an effort to deter to either sell or even share fentanyl. Prosecutors in Alaska, California, Florida and at least a dozen other states were beginning to bring new murder cases against any defendant who met the broad definition of a fentanyl dealer: a 17-year-old in Tennessee who, after graduating , shared fentanyl in the school parking lot with two of her friends, who died; a husband in Indiana who bought fentanyl for her disabled wife, who overdosed while trying to numb her chronic MS pain; a Florida real estate agent who threw a party and called 911 when one of her guests overdosed; a high school senior in Missouri who gave a 16-year-old girl she met at church a pill and warned her to “just take a quarter of it and then take another quarter if you don’t feel it.”
A group of Republican senators, including one from Oklahoma, introduced a bill in February to charge fentanyl dealers and distributors across the country with felony murder in what Sen. Marco Rubio, a Florida Republican, called a ” simple, common-sense step to help turn the tide. and protect our communities.”
But, as she studied Askins’ file, Mai saw that the Oklahoma City police officers in that case had not traced the fatal dose of fentanyl to a cartel maker, or a drug dealer, or a major dealer, or including the street dealer known as “Suge” who had sold the fentanyl to Askins and Drake and whose name Askins had given to police at the scene. Instead, they arrested and charged a single person, Askins, who had a criminal record for non-violent drug offenses. His file showed that he had depression, anxiety and post-traumatic stress disorder from being raped by a neighbor when he was 9 years old. His current address was listed as “transient,” and he told officers that he supported his own addiction by reselling food he found in dumpsters and donating plasma twice a week.
Mai left private practice and took a 40 percent pay cut to become a public defender in her home state because she wanted to work on cases like this. He had envisioned himself fighting for the underdog, standing up and serving in front of a jury like his idol, Clarence Darrow, whose trial victories helped advance the civil rights movement. But the reality of Mai’s job meant handling 80 or 90 cases at a time: petty copper thefts, drug deals, and domestic disputes that often ended with her clients closing deals and pleading guilty to lesser charges. In his nearly two years as a public defender, he had never taken a case to trial.