They bought $30 worth of fentanyl before making it into rehab. One overdosed. The other was charged in his death.
Josh Askins woke up in the crawl space of an abandoned house with nausea, chills and a shooting pain in his legs. It had been seven hours since he last smoked fentanyl, and already he could feel his withdrawal symptoms worsening by the minute. He rolled over in his sleeping bag and stared at the graffiti he had carved into the rotting floorboards. “Fentanyl is HELL,” he had written a few weeks earlier, but now he got up to start looking for more.
He walked across the street and saw his friend Chris Drake sitting on his grandmother’s front porch in downtown Oklahoma City, watching the sunrise with a Budweiser in one hand and a Bible in the other. Drake, 47, was reading the book for the sixth time, and he and Askins, 42, had bonded during the past weeks over their shared faith and also their shared failings. They had called a rehab facility that took Medicaid and made plans to detox there together with the help of medication, but their check-in date was still days away.
“I’m hurting really bad,” Askins said that morning in late April.
“Do you think you can get us a little something?” Drake asked him, according to court records.
“I can always get us something,” Askins said.
They got into Drake’s car at about 5:30am and went to search for the drug that had rewired their bodies, their minds and also so much else about the United States, where in 2023 fentanyl and other synthetic opioids lead to an average of 3,400 emergency room visits and 190 fatal overdoses each day.
What was once an obscure drug used to treat pain in end-stage cancer patients has become the leading cause of death for Americans younger than 50, and now the debate in state capitols and courtrooms across the country is over how to stop the crisis and whom to hold accountable for it.
Askins and Drake had sometimes played their own version of what they called “the addicts’ blame game” during their conversations on the porch. Together, they cursed the doctors who first prescribed them opioids to treat their injuries; and the drug companies that knowingly flooded the market with addictive products; and the cartels that manufactured and shipped millions of doses from Mexico into Oklahoma; and the street dealers who cut fentanyl into other drugs to get more people hooked; and the realities of life on America’s margins that kept them going back to those dealers to dull their pain, loneliness and disappointment again and again.
They drove to a Red Roof Inn and then to another extended-stay motel near the airport, where, according to police reports, Askins met with a dealer who had sold him fentanyl before. Drake took out his wallet and handed cash to Askins, and Askins paid $30 for three-tenths of a gram of white fentanyl powder that looked like a pinch of sugar in a small plastic bag. They parked at a car wash, and Drake put the white powder onto a piece of tinfoil, cooked it with a lighter and inhaled the fumes. He took two hits and Askins took one. Askins passed out for a few seconds. When he opened his eyes, he saw Drake slumped over and falling out of the passenger seat.
“Put on your seat belt so you stay upright,” Askins later remembered saying, but Drake didn’t answer.
“Hey, man, you all right?,” Askins asked. He shook his friend and tried to slap him back to consciousness, but his body was limp and his lips were turning blue.
Askins had overdosed a few times in the past year, and after one of those episodes, a paramedic warned him that without medical intervention, some overdoses could become fatal within five minutes or less. Askins pulled up to a gas station and banged on the door. “Help!” he shouted to the clerk. “My friend’s overdosing. Call 911.”
He had learned CPR while working as a medical assistant in a nursing home, so he pulled Drake out of the car, laid him on the concrete, and performed chest compressions until a firetruck and two police officers arrived. The paramedics continued to work on Drake while Askins waited in a police car. An officer read him his Miranda rights and asked about the events of that morning, none of which are under dispute in the police officer’s sworn affidavit from the scene. It was Drake who first suggested they buy drugs. It was Drake who had enough money for fentanyl. It was Drake who wanted to get high and willingly took the first hit.
But now the police officer told Askins that Drake had been pronounced dead, and the state of Oklahoma had reached its initial decision about who was to blame for the latest fatality in a national epidemic.
“Josh Askins, you’re under arrest for murder in the first degree,” the officer said.
Justin Mai, 31, checked his mailbox in the Oklahoma County Public Defender’s Office and saw a new case file, a manila folder with a red label that read “Murder One.” He had been working at the office for less than two years as a self-described “baby lawyer,” but already he had received five murder cases. Now, he flipped through Askins’ file and saw it was a fentanyl case that resembled a few of his others.
He had worked on a murder case against a 24-year-old who delivered fentanyl to a friend’s apartment and warned “everyone to be careful” before his friend licked the empty fentanyl bag and died of an overdose. He had defended a woman on murder charges after she left some of her fentanyl in a motel bathroom, where her 43-year-old companion used the drugs and then died.
All told, the public defender’s office had taken on six fentanyl murder cases in the past several months that were pending, and each one followed the same pattern: An addict sold, distributed or shared drugs that directly resulted in someone’s death, which technically met the definition for first-degree murder and the possibility of a lifetime prison sentence in Oklahoma and an increasing number of other states.
Texas Governor Greg Abbott this month signed a law to reclassify fentanyl overdose deaths as “poisonings,” and Arkansas passed a “death by delivery” bill in April to charge some overdoses as murders in an effort to deter anyone from selling or even sharing fentanyl. Prosecutors in Alaska, California, Florida and at least a dozen other states were beginning to pursue new murder cases against any defendant who fit under the wide-ranging definition of a fentanyl dealer: a 17-year-old in Tennessee who, after graduation, shared fentanyl in the school parking lot with two of her friends, both of whom died; a husband in Indiana who bought fentanyl for his disabled wife, who overdosed while trying to numb her chronic pain from multiple sclerosis; a real estate agent in Florida who threw a party and called 911 when one of her guests overdosed; a high school senior in Missouri who gave a pill to a 16-year-old girl he met at church and warned her to “only do a quarter and then do the other quarter if you don’t feel it.”
A group of Republican senators, including one from Oklahoma, introduced a bill in February to charge fentanyl traffickers and dealers nationwide with felony murder in what Senator Marco Rubio, R-Fla., called a “simple, common-sense step to help turn the tide and protect our communities”
But, as Mai studied Askins’ file, he saw that the Oklahoma City police officers in that case hadn’t tracked the fatal dose of fentanyl back to a cartel manufacturer, or to a drug trafficker, or to a big-time dealer, or even to the street-level dealer known as “Suge” who had sold the fentanyl to Askins and Drake and whose name Askins had given to the police at the scene. Instead, they arrested and charged only one person, Askins, who had a criminal record of nonviolent drug offences. His file showed that he had depression, anxiety and post-traumatic stress disorder from being raped by a neighbour when he was 9. His current address was listed as “transient,” and he had told officers that he supported his own addiction by reselling food he found in dumpsters and donating plasma twice each week.
Mai left private practice and took a 40 per cent pay cut to become a public defender in his home state because he wanted to work cases like this. He had imagined himself fighting for the underdog, standing and delivering in front of a jury like his idol, Clarence Darrow, whose trial victories helped advance the civil rights movement. But the realities of Mai’s job meant managing 80 or 90 cases at once — small-time copper thefts, drug deals and domestic disputes that typically ended with his clients cutting deals and pleading guilty to lesser charges.
In his almost two years as a public defender, Mai had never once taken a case to trial.
“This is one we’re going to fight,” he told Askins when they met one morning at the county jail. Askins had a bond hearing coming up, and Mai planned to ask the judge to reduce his bond to US$50,000 from US$250,000 so that Askins could possibly get out of jail while his case continued through the courts.
“They should be treating this more like a misdemeanour drug case,” Mai told him. “It was a traumatic situation, and you acted how I wish I would act if I was in that position.”
“My mind was spinning,” Askins said. “I was just going off instinct.”
“And somehow you drove to the gas station,” Mai said. “You called for help. You gave CPR. You stayed at the scene and tried to save your friend.”
“Murder,” Askins said, still trying to make sense of it. He had met an inmate in jail who admitted to shooting a former roommate and dismembering parts of the body, and he had pleaded down to a sentence of manslaughter and 10 years in prison.
“If I’m found guilty, I could be looking at, what, life in prison? Life without parole?,” Askins asked.
“Technically, yes,” Mai said. “But who’s going to support that?”
Wanda Harris, 88, lit a cigarette and walked into the living room where she last saw her grandson on the morning he died, and where she had left his belongings untouched in the weeks since. His mattress was still on the floor outside her bedroom, where he sometimes slept so he could monitor her coughing fits at night. His half-empty beer bottles sat on the kitchen table, and his poster of the Ten Commandments hung on the wall. His friends from nearby abandoned houses were still coming over at all hours so they could use the bathroom, charge their cellphones and check on his grandmother.
“You doing all right today?” one of them asked.
Harris put out her cigarette in an empty cereal bowl and lit another. “I must still be in shock,” she said. “My brain just can’t make sense of what happened.”
She raised Drake and lived with him for most of his life, but the past two years had been the hardest. Drake’s mother died of cancer, and he sank into a clinical depression and quit his trucking job. He was lonely and bored, so he started befriending some of the men who lived in the abandoned houses around the corner. Harris saw them drinking beers together and smoking from pipes on her front porch, and she tried going outside to talk to them about the Bible. She watched a story on TV about the rise of fentanyl and begged Drake to get help. It seemed to her as if he were giving up, and then two police officers were knocking on her door to deliver the kind of news she had received before.
Her husband was shot and killed during a robbery when she was 26 years old, and for the next few years, she was so blinded by anger that she didn’t feel safe driving a car. Her eldest daughter died of cancer, and for a while, Harris blamed God and stopped going to church. Her son was hit in the head when a piece of equipment fell on the oil rig where he worked, and Harris tried to sue the oil company or the doctors who failed to save him during surgery. None of it went anywhere, and none of it helped to alleviate her grief, until eventually she resigned herself to the philosophy that she repeated to anyone who asked about the circumstances of Drake’s death. Unless Askins tricked her grandson into taking fentanyl or forced the drugs into his body, it didn’t seem to her like an intentional act of murder. “It is what it is,” she said. “No amount of finger-pointing is ever going to change it.”
The front door swung open again. It was another one of Drake’s friends. He plugged his phone into the wall and grabbed a bottle of water from the fridge.
“I’m sorry about Chris,” he said. “The whole situation makes me so angry.”
“I’ve tried that,” she said. “It doesn’t take the pain away.”
“What does?”
She lit a cigarette and thought for a moment. “Nothing,” she said.
A few days later, two prison guards led Askins into a courtroom for his bond hearing on the charge that he murdered Drake. Askins had red welts on his neck from the bedbugs that infested the county jail, and he scratched at his skin with his handcuffs as he scanned the gallery for his family. He spotted his mother, Shawn Armstrong, who had recently tried to hang herself in the backyard because of her heartbreak over the latest saga in her son’s 25 years of addiction; and his stepfather, who helped cut down the rope; and his 92-year-old grandmother, who had slept in the same bed as his mother for the past three weeks, rubbing his mother’s arm until she fell asleep.
“I’m so sorry for putting you through all this,” Askins told them. He wiped his eyes and turned back toward the front of the room as Mai, his lawyer, stood to address the judge.
“This is a very unusual first-degree murder case,” Mai said. “We have an unfortunate and sad accidental drug overdose, but we shouldn’t put that accident on my client. Even accusing him of murder causes real harm — stigmatising drug addicts, punishing people who call 911. It’s clear that my client is not a drug dealer. He was a middleman.”
“A middleman is a drug dealer,” the prosecutor said. “They buy drugs from someone and then distribute them. This person’s drug problem has directly led to a death in our county.”
More recently, the question of who should be held accountable for fentanyl overdoses had led to debate within the offices of the prosecutor’s boss, Vicki Behenna, who was trying to navigate competing pressures as Oklahoma County’s newly elected district attorney.
Bereaved parents of overdose victims were erecting billboards around the state that showed pictures of their children alongside demands for harsher prison sentences for dealers. They hoped to scare people away from selling or sharing fentanyl to eventually reduce the flow of the drug into the United States. “Their lives matter. Why are drug dealers getting away with murder?” the billboards asked.
Behenna promised to continue Oklahoma County’s recent tradition of charging “traffickers and distributors with murder to hold them accountable to the full extent of the law.” But she was also a Democrat and the former head of the Oklahoma Innocence Project, and she had run for district attorney by speaking often about her belief in mercy and her hopes to reform parts of what she referred to as the “criminal legal system — not the criminal justice system.”
![Armstrong washing dishes while her mother eats dinner. “It’s either going to be life [in prison], or death on the street,” she said before the bail hearing. Photo / Erin Schaff, The New York Times](https://www.nzherald.co.nz/resizer/v2/MOFR7MKGIVAM7OHYCSKKOIBRI4.jpg?auth=7942a439fcebe1990185ffb26a6e083e9e927884274698a34bfe50b4ea0874fb&width=16&height=11&quality=70&smart=true)
In June, she decided her office would change its policy and begin charging some drug users involved in fentanyl deaths with first-degree manslaughter instead of first-degree murder. In the coming weeks, she planned to have her staff begin a review of each active case, including the one against Askins. But for now, the judge looked at Askins’ file and saw only the original charge at the top of the page.
“Murder in the first degree is very serious,” she told him as she prepared to give her ruling. “At this point in time, I have to assume that the apparent likelihood of conviction is great. You have to be held accountable. I’m keeping the bond at US$250,000.”
Askins nodded. “Thank you, Your Honour,” he said. “Can I please hug my family?”
“I’m sorry. I believe we have a rule against that,” the judge said. She gestured for the guards to take Askins back upstairs to his cell.
Askins called his mother from his prison cell a few hours later. She answered as she drove out of the city toward her small ranch.
“I can’t do this anymore,” he told her. His next preliminary hearing wasn’t until August. “I can’t be in here,” he said.
“You’re strong. You’re loved,” she said. “Remember how much you’re worth.”
“No, listen,” he said. “I’m telling you I’m done.”
She stared ahead out the window at the wind-swept prairie as a familiar anxiety came rushing back into her chest and throat. She spent the past two decades losing her son to addiction, imagining him in abandoned houses, writhing in withdrawal or smoking the fentanyl dose that would kill him. Her one solace with Askins in prison was the belief that he was in some ways protected from his disease. He was trapped. He was safe. “You just have to confront reality,” she said. “There’s no escaping. There’s no other choice.”
“Well, actually,” he said, and then he started to tell her a story from several weeks earlier, when he first arrived at the Oklahoma County Jail with the same shooting pains and nausea that drove him to buy fentanyl that morning with Drake. He had prepared himself for full-fledged withdrawal in jail, but then he saw his roommate smoking synthetic marijuana and heard about other prisoners making alcohol out of hand sanitiser. It turned out that the jail had treated more than 130 inmates for drug overdoses in the past year, and more than a dozen had died since 2021. Within a few days, Askins figured out that fentanyl was all over the facility, sold by every jailhouse gang in every variety and available for purchase by trade or by favour. He started snorting small doses at night so he could drown out his surroundings for long enough to sleep.
The nightmares kept coming. His doses got bigger. He took a little more to keep himself from thinking about Drake. He took more each time he heard his mother crying on the phone. More for the bedbugs. More for the loneliness and the shame and the anger and the fear, until one night he sat on his roommate’s bed and snorted two lines of white powder, numbing himself into oblivion with four times his typical dose. His vision went dark. When he woke awhile later, he was strapped into a restraining jacket and staring up at a team of nurses and medical assistants in the jail. They said it had taken four doses of naloxone, the opioid-reversal drug, to revive him. He immediately went into withdrawal and said he hadn’t used fentanyl since.
“I almost died,” he told his mother. “They had to bring me back.”
“Thank God,” she said.
“Yeah,” he said. “I guess.”
She looked out the window at the red dirt roads of Oklahoma, where fentanyl was everywhere, and she listened to her son breathe until her exhaustion and her anger formed into the same desire for accountability that had swept across the country and put her son in jail.
“How? Who did this to you?” she asked, and this time, Askins was sure of the answer.
“It was me,” he said. “Blame me.”
This article originally appeared in The New York Times.
Written by: Eli Saslow
Photographs by: Erin Schaff
©2023 THE NEW YORK TIMES