Law 'diverts punishment' to drug addicts, Pa. judge says in vacated conviction

Advocates tallied a win — albeit a narrow one — in federal court this month when the 3rd Circuit Court of Appeals vacated a Montgomery County woman’s conviction and 21-year sentence for sharing a fatal dose of drugs with a friend.

A divided three-judge panel ruled that the federal drug delivery resulting in death statute, which carries a mandatory 20-year minimum sentence, does not apply in a narrow set of circumstances in which the victim and the defendant purchased and used drugs together.

That means Emma Semler, sentenced to more than two decades for the 2014 overdose death of her friend Jenny Werstler in a Philadelphia fast food bathroom, will get a new trial.

Circuit Judge Jane Richard Roth wrote the majority opinion in the non-precedential case, and she noted the law, when applied in cases like Semler’s, “diverts punishment from traffickers to addicts, who contribute to the drug trade only as end users who already suffer disproportionately from its dangerous effects.”

The drug delivery resulting in death charge has become more prevalent in federal courts in Pennsylvania in recent years, according to The Philadelphia Inquirer: From 2017 to 2019, federal prosecutors in the state prosecuted 53 cases, up from just fewer than 40 in the three prior years.

The opinion is far from an all-out win, said Jonathan Fodi, a former assistant district attorney, now defense attorney.

“The opinion is so narrowly tailored, it really doesn’t address all of the concerns we’re talking about,” he said.

Roth’s opinion noted that, while the majority did not agree Semler’s case constituted distribution of the drug, “we do not conclude that instances of ‘social sharing’ never constitute distribution (under the law).”

The opinion gave the example of one person going along to buy drugs for their own use, then giving or selling to another user to either use themselves or share with others.

“Such a situation,” the judge wrote, “is more like to constitute a distribution than the one presented here, where individuals purchase drugs together to share only among themselves.”

The opinion also left open the possibility Semler could wind up with the same conviction and sentence.

“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, which may well convict Semler.”