Pubdate: Tue, 26 Aug 2008
Source: Oshkosh Northwestern (WI)
Copyright: 2008 Gannett Co., Inc.
Contact:  http://www.thenorthwestern.com/
Details: http://www.mapinc.org/media/2640
Author: Jennifer K. Woldt

LEN BIAS LAW DOESN'T APPLY TO ALL DRUGS

Even after a year, Debra Hensch still misses the nightly phone calls
from her son.

Another man gave Brian D. Johns, 35, a prescription drug that was
prescribed for someone else on Aug. 30, 2007. Johns took the
medication and died later that night.

But the man who provided the drug that killed Johns won't stand trial
for his death - only for supplying Johns with the drug.

Wisconsin has the Len Bias law, which allows prosecutors to charge any
individual who sells or distributes a schedule I or II drug to a
person who ends up dying as a result of the drug with first-degree
reckless homicide. But the drug Johns took, Suboxone, does not fall
into either category.

"Where is the justice for my son? I grieve no less, cry no less. Is
Brian any less dead because of it?" Hensch said. "No, he's not. He's
six feet under."

Many states adopted the Len Bias law after the drug overdose death of
the former Maryland basketball star. Bias died of a cocaine overdose
in 1986, hours after being selected in the first round of the National
Basketball Association draft by the Boston Celtics.

Johns died after taking Suboxone, a medication used to treat narcotic
dependence that works by preventing withdrawal symptoms.

The Winnebago County District Attorney's Office was not able to charge
Patrick McCarthy, the Oshkosh man accused of giving Johns the drug,
with reckless homicide under the Len Bias law because Suboxone is a
schedule III drug, Winnebago County District Attorney Christian
Gossett said. As a result, McCarthy, 23, is facing two drug delivery
charges and less than 10 years in prison, as opposed to the maximum
40-year penalty for a reckless homicide charge.

"It's hard to address a death with three (years) in (prison) and three
(years) out," said Winnebago County Assistant District Attorney Eric
Sparr, who specializes in drug offenses. "But we're really
handcuffed."

Seeks change in law

Since her son's death, Hensch has been trying to gather support to
change the law to include any drug that causes an overdose death. She
has already voiced her concerns to area legislators and Oshkosh Mayor
Frank Tower. Hensch has also contacted Gov. Jim Doyle, but is still
waiting for a response.

Neither state Rep. Gordon Hintz, D-Oshkosh, nor former state Sen.
Carol Roessler, R-Oshkosh, were available for comment.

The state's controlled substances board determines what drugs fall
under what categories with the help of findings released by the
Federal Food and Drug Administration and the Drug Enforcement

Administration, Gossett said. When making its determination, the board
considers whether the drug has a high potential for abuse, if there is
accepted medical use for treatment and if it lacks accepted safety for
use in treatment under medical supervision.

There are numerous drugs that fall under schedule I and II, Sparr
said. Many of the drugs on the schedule I list are illegal drugs, such
as heroin, ecstasy, marijuana, psilocybin and GHB. Drugs on the
schedule II list are often prescription drugs that can lead to severe
psychological or physical dependence if abused. Some of the well-known
drugs include codeine, hydrocodone, morphine, oxycodone, cocaine,
Fentanyl, amphetamine and methamphetamine.

However, drugs that do not fall under those categories can still cause
an overdose death, Gossett said. Because of the way the law is
written, in those cases prosecutors can issue drug delivery charges,
but are unable to issue reckless homicide charges. Gossett said he
thinks the Len Bias law should apply to all drugs.

"You go from it being a homicide to getting three years," Gossett
said. "And that doesn't make sense when someone dies as a result."

Hensch knows her efforts to change state will not help her. But she is
willing to continue the fight.

"I'll keep fighting. I'll fight this until the day I die," Hensch
said. "It's not going to help me get justice for my son, but if it
helps some other parents not to have to go through what I did, it's
worth it."
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