These Pa. prosecutors are charging heroin dealers with killing their customers. Grieving families are helping

By the time their families gathered on opposite sides of a central Pennsylvania courtroom in April, it had been more than a year since Kevin Cruz-Cuebas sold Ryan Myers the bag of heroin that would kill him.

Now, a York County judge was preparing to sentence Cruz-Cuebas, 19, for a once-obscure offense that has become a favorite tool of prosecutors and grieving families around the country as the opioid crisis has worsened.

In Pennsylvania, it's called "drug delivery resulting in death."

Prosecutors in rural York County — which saw 173 overdose deaths last year —  level this homicide-by-heroin charge more often than anywhere else in the state. But still, that's not very often — just 45 times since 2013 — because it is such a difficult charge to prove.

Compare that with Philadelphia, with 1,217 deaths last year, and seven DDRD charges in the last five years.

"It's just not that useful of a tool," said Ben Waxman, a spokesman for Philadelphia District Attorney Larry Krasner, because so many people are buying and selling drugs in the city, it is virtually impossible to attach one person to one fatal dose.

Montgomery and Bucks Counties have leveled the charge 15 and 23 times since 2013.

York prosecutors say they view DDRD as a tool to fight an epidemic and respect families who need solace. With its conservative voter base, York may seem a natural place for a get-tough measure criticized by some as a relic of failed "war on drugs" tactics.

Yet York also demonstrates the tension between frustration and compassion that has punctuated the crisis, with volunteers handing out clean needles, life-saving naloxone, and treatment referrals to people in addiction.

Still, as the death rates have risen, so have the prosecutions.

For selling Ryan Myers his last dose of heroin, Kevin Cruz-Cuebas faced up to 40 years in prison.

In the fall of 2013, a few months before York County Coroner Pam Gay took office, her new deputy told her to keep an eye on heroin overdoses. By mid-January 2014, overdose deaths were on track to surpass the toll from all of 2013.

"I never anticipated walking into the worst drug epidemic in the history of the United States," Gay said.  She quickly decided to do something about it.

Gay began performing autopsies on each person who overdosed on illicit drugs. She and District Attorney David Sunday, who was then a chief prosecutor overseeing drug felonies, formed a heroin task force and spent months persuading the county's 23 police departments — many of which rarely handle major investigations — to treat every overdose like a crime scene. Sunday also worked to persuade them to have reluctant officers carry naloxone, an even harder task.

These efforts were aided in part by a 2011 change in state law that demoted DDRD from a murder charge to a first-degree felony. So all prosecutors had to prove was that defendants sold the fatal dose — not that they intended to kill their customers.

Initially, said Assistant District Attorney Jared Mellott, who handled Cruz-Cuebas' case, prosecutors worried that  jurors would view drug users as responsible for their own deaths, not as crime victims deserving justice.

Another problem: There is no proof that get-tough policies deter drug offenses, according to opponents such as the nonprofit Drug Policy Alliance. Rather, these laws could worsen racial disparities in the courts. Of the 45 people charged with DDRD in York County since 2013, 26 percent were black. Just 6 percent of the county's population is black. Sunday, who took office this January, firmly disputed that there was any racial element to his office's charging practices.

Rare as DDRD cases are, getting them to trial is even more unusual: Only four defendants in York County, including Cruz-Cuebas, have ever made it before a jury. All of them were convicted. Other defendants have pleaded guilty to DDRD or lesser charges.

Sunday says that the York courts offer a number of diversion programs and that he tries to avoid charging people who were using drugs with the victims, or who were dealing to support their own addiction. His aim, he says, is to go after the bigger dealers, or at least the ones who are selling heroin solely to turn a profit.

"There are drug dealers who are putting hundreds, if not thousands, of potential [fatal doses] on the street," he said. "Why should they get a pass?"

While not a big-time dealer, prosecutors said, Cruz-Cuebas was doing more than funding a habit: Police caught him with $400 and a handgun.

>>The Opioid Forum: Join us May 17 for a forum discussion on the current state of the opioid crisis in Philadelphia. Speakers include Inquirer opioids reporter Aubrey Whelan, Columnist Mike Newall, Health Editor Charlotte Sutton and Mayor Jim Kenney.

But Cruz-Cuebas' lawyer, Rick Robinson, said his client was exactly the kind of person prosecutors say deserves leniency. The DDRD charge marked the first time he was ever charged with a crime as an adult.

With his father gone and his mother rarely home, he started smoking marijuana when he was 9 and turned to heroin as a teen. Dealing heroin was the only job he'd ever had.

He had a juvenile record, for trying to buy a firearm, and failed to keep up with probation monitoring rules. "When they first started charging [with DDRD], typically they would only charge the bad guys, the career criminal drug dealers who you know were basically just in it to make money," Robinson said. "As time has gone on, they will charge it in every case [they can].

"And once people started reading about the fact that guys dealing heroin would get 20 to 40, then the families of the individuals who die started putting pressure on the DA's Office."

He marvels at the contrast between Cruz-Cuebas and most people caught selling drugs.

"I can represent someone who delivers heroin and doesn't kill them, and I get a guy six months or a year," he said. "But just by the misfortune that the user took too much, you go from two years to looking at 20 to 40 over what was really an accident."

Hours before Myers died, he and his 12-year-old son had been at a football game. On the way home, they stopped at a convenience store. Jarryn waited in the car while his 30-year-old father bought a bag of heroin.

Within the hour, he had overdosed in the bathroom of their home. His son found him.

Jarryn's mother, Suzanne Yorty, was anguished, but not shocked at the fate of her high school sweetheart. She said Myers got his first taste of an opioid painkiller after shoulder surgery for a baseball injury. By the time she was pregnant with Jarryn, a year after graduation, Myers had an addiction that multiple stints in rehab could not shake. He always held a job, Yorty said. Fear of losing it, she said, is probably what kept him from going to rehab long enough for recovery to stick.

Two days after that final overdose, Myers's family knew it was time to take him off life support. But first, Jarryn asked for time alone with his father.

"He told his dad," Yorty said, "that he was going to get the bad guy for him."

The child kept his word. He rode around with police until he recognized the convenience store where his dad had stopped.

Undercover police scoured Myers' phone and found Cruz-Cuebas' number. Questioned by detectives, he told them that he remembered selling drugs to Myers. He didn't know his customer had died.

When Robinson took the case, he sought a plea deal, and Mellott, the prosecutor who handled the case, talked to Yorty and her son.

Jarryn, Yorty said, was particularly adamant about seeking the maximum sentence, and his family supported the child.

Families "don't have veto power, but we strongly consider what they say," Mellott said. "In this case, I thought the evidence was strong enough that I didn't need to encourage the victim's family to accept leniency."

At trial, Jarryn testified about finding his father dying in the bathroom.

The jury took two hours to convict Cruz-Cuebas. At sentencing, the judge gave him 9½ to 19 years in prison. Robinson considered it a lucky break. Yorty considers it a mixed blessing.

"It's not bringing Ryan back," Yorty said. "But [the case] has given my son, if not me, a little bit of justification to know that he did something in honor of his dad. And he has that to be proud of for the rest of his life."

It's unclear whether York County's charging practices are working; deaths have continued to escalate in the years since the effort began, but it's conceivable they could have been more numerous. Mellott said charging low-level dealers with DDRD has encouraged some to flip on their suppliers higher up the chain.

But harm-reduction advocates say their clients in addiction tell them they're sometimes afraid to call the police when a friend overdoses, lest they be blamed for their deaths.

>> READ MORE: Harm reduction for opioid users is a harder sell in rural Pa., but York County is making it work

Nor can it be applied as widely as some might like. At a recent meeting of the county's opioid task force, a woman stood up and told Sunday that her mother was addicted to pain pills. She asked whether he would charge the doctor with DDRD if her mother overdosed. Sunday said he couldn't apply the law to legal prescriptions.

In the back of the room, Vickie Glatfelter sat with a stack of pamphlets and a poster plastered with the faces of overdose victims. She thought about her son, Bob, who died in a Bucks County motel in 2015, and how she'd devoted her life since to fighting addiction. The woman who watched Bob die was charged with DDRD.

But she was convicted of a lesser offense and sentenced to a short jail term and community service.

Glatfelter, who now runs a support group for families struggling with addiction, was angry at first. "I wanted her to pay for what happened," she said. But she found a kind of closure the courts could not give her.

"I had to realize," she said, "that she was just as sick as my son was. I'll never forget what happened, but I tried to learn to forgive."