For years, addiction recovery advocates have rallied around the case of Emma Semler — a Montgomery County woman serving a 21-year federal prison sentence for causing her friend’s heroin overdose death — as a prime example of an increasingly common, and in their view misguided, prosecution strategy, that has left addicted drug users facing the same significant penalties as the dealers who sell to them.
This week, a federal appellate court in Philadelphia agreed — though, perhaps not in all the ways her supporters might have hoped.
In a divided decision, a three-judge panel for the U.S. Court of Appeals for the Third Circuit held that the federal “drug delivery resulting in death” statute — a law primarily used to prosecute traffickers that carries a 20-year mandatory minimum sentence — does not apply to cases where the victim and the accused jointly acquired and used small amounts of drugs together.
Applying the law otherwise “diverts punishment from traffickers to addicts, who contribute to the drug trade only as end users and who already suffer disproportionately from its dangerous effects,” said Circuit Judge Jane Richards Roth, writing for the majority in the case.
In Semler’s case, the court vacated her conviction and ordered a new trial.
But the decision Tuesday stopped short of a full-throated rejection that Semler, 26, of Collegeville, and her supporters had hoped for.
Circuit Judge David L. Porter dissented, saying his colleagues’ ruling “blows a hole” in a carefully crafted statute for what he dismissed as “unpersuasive policy reasons.”
Even the panel’s majority, which also included Circuit Judge Thomas L. Ambro, left open the possibility that Semler still could be convicted under the standard it has now set in her case.
It also issued its ruling in the form of a non-precedential decision, meaning it is not binding on prosecutorial decisions in similar cases involving overdose deaths where two users shared drugs.
Still, Peter Goldberger, Semler’s attorney, said he hoped the ruling would at least influence judges and prosecutors in limiting the “misuse” of a law that he said allowed authorities to treat “a fellow user whose friend tragically died as if she were a murderer.”
That friend — Jenny Werstler, of East Goshen Township — overdosed in 2014 on her 20th birthday on a bathroom floor of a West Philadelphia Kentucky Fried Chicken, where she and Semler had injected heroin together.
Her death — and Semler’s subsequent conviction for causing it — provided yet another tragic example of the devastating effects of an opioid epidemic that has continued to claim thousands of lives in the years since.
Hoping to stem the tide of deaths, state prosecutors in Pennsylvania have become national leaders in deploying “drug delivery resulting in death” charges, in cases that have often involved fellow users.
And while use of the charge has increased more gradually in federal courts — where Semler was tried and stiffer penalties apply — the increase there is also significant. Between 2017 and 2019, federal prosecutors in Pennsylvania pursued 53 such cases, up from just under 40 in the three previous years.
“At the same time as public health officials are encouraging people not to use alone, prosecutors are applying the opposite pressure and creating situations where people are more likely to be using alone,” said Leo Beletsky, a law and health sciences professor at Northeastern University who signed a friend-of-the-court brief in Semler’s case. “If the idea behind the prosecution is to teach a lesson that people shouldn’t abandon the scene of an overdose, then pursuing a prosecution such as this sends exactly the opposite message.”
But the line between who is a drug dealer and who is merely an addicted user who shared drugs with others isn’t always clear-cut — especially so, argued acting U.S. Attorney Jennifer Arbittier Williams, in the case of Semler and Werstler.
Her office declined to comment on the Third Circuit decision, but Williams defended Semler’s conviction under the drug delivery resulting in death statute in a 2019 Inquirer op-ed.
At trial, prosecutors contended it was Semler who had fronted Werstler the money to buy the heroin they used together.
Semler knew the drug dealer and carried out the transaction. She also provided the needles and directed Werstler to the KFC at 61st and Lancaster Avenue, where prosecutors say the women and Semler’s younger sister shot up together.
And when Werstler showed signs of overdosing, Semler and her sister fled without a word.
That made Semler, Williams argued in the op-ed, just “as much of a drug distributor as her suppliers.”
“She was prosecuted because she supplied heroin to Werstler, and then willfully left her to die on the bathroom floor of a busy restaurant.”
In its ruling Tuesday, the Third Circuit court said Semler’s decision to flee, while “shameful,” was ultimately irrelevant to the debate over whether she was properly classified under the law as a “drug distributor.”
“Indeed, the threat of harsh penalties in any joint-use situation could jeopardize addicts’ safety even more by deterring them from using together specifically so that one can interfere if another overdoses,” Roth wrote, echoing language used in briefs filed by recovery advocates in the case.
But the panel’s judges — even as they offered a more restrictive vision of how the law should be applied — appeared conflicted on whether Semler still fell within those criteria.
“We do not rule that Semler is not guilty of distribution, or that she and Werstler were joint purchasers of the heroin that caused Werstler’s overdose,” Roth wrote. “We leave those questions of fact to a properly instructed jury on remand.”
Porter put it more bluntly in his dissent: “From Werstler’s perspective, Semler was the chain of distribution.”
Semler’s lawyers maintain that while their client had the contacts and the money, Werstler was just as much a participant in the drug buy. She drove Semler and her sister to pick up the drugs and waited in the car while the transaction was carried out.
But even as lawyers, judges, and policy advocates continue to debate the arcane points of law surrounding the case, it’s difficult to forget that it centers on two families tragically touched forever by addiction.
Werstler’s parents, who said they learned of the court’s decision from a reporter on Wednesday, said they believe Semler’s 21-year sentence is appropriate.
In the year after Werstler’s death, Semler achieved sobriety and began working for rehab facilities helping others overcome their addictions.
Even though she is “optimistically excited” for the opportunity to present her case to a jury under new guidelines, her aunt Susan Layton said, her future remains uncertain.
The three years she’s spent in prison so far have been difficult, Layton said. Three close family members died in 2019, including her mother, shortly after her conviction.
Her lawyer, Goldberger, said Wednesday he will be seeking her release from custody while prosecutors decide whether to retry her, to attempt to negotiate a plea to lesser charges, or to challenge the Third Circuit’s decision to a higher court.
A spokesperson for the U.S. Attorney’s Office said Wednesday that it was too early to comment on which of those options it will take.