It was raining that September night in Portsmouth, Rhode Island so Keith Gillette and Andrew Paiva waited inside Clements Market for the dealer to arrive. Around 7:30 he pulled up in a car. Paiva stayed inside while Gillette walked out to the parking lot and climbed into the back seat. Gillette gave the man $70 in exchange for 12 wax baggies containing what he thought to be heroin. Four for himself, eight for Paiva.
The two met back inside and split up the purchase before departing on foot down East Main Road to the Portsmouth bus stop. Gillette used his four bags as soon as they arrived back at the McKinney Cooperative homeless shelter in Newport, and warned Paiva that the drugs were unusually strong. Paiva returned to his room and soon reemerged, dripping in sweat.
Grab some of the shelter’s Narcan in case you overdose, Gillette told him. He had planned to check on Paiva later that night but fell asleep.
Around 11:15 pm, Paiva’s roommate found him lying on his bed with clear overdose symptoms. He administered a dose of Narcan, but his efforts at resuscitation were unsuccessful. When Newport police officers arrived in response to a reported overdose, Paiva was unconscious and alone. The officers injected him with two more doses of Narcan before transporting him to Newport Hospital.
But by 12:10 am on September 11, 2018, Andrew Paiva, 29, had died. Not from a heroin overdose but from fentanyl — a lethal hit from a man he’d never met.
Keith Gillette, 43, didn’t say much to detectives at first. He and Paiva had hung out at the shelter all day before taking the RIPTA 60 bus to grab a slice at North End Pizza in Portsmouth, Gillette told them. At one point, Paiva had wandered the shelter trying to break a $100 bill that his mother had given him for groceries, but otherwise the two were together the whole evening. Neither had purchased any drugs, he assured them, and they had parted ways when they returned to the McKinney Shelter that night.
About a month later, Gillette encountered the dealer who’d sold him the deadly fentanyl at a Stop & Shop in Fall River, Massachusetts. Gillette warned him that someone had died from the drugs he had sold.
“People die off my shit all the time. I don’t give a fuck,” the dealer replied, according to court records.
This angered Gillette, who had been haunted by his friend’s death.
A few days later, he called the Newport Police Department despite knowing that he might be criminally charged himself. He told them that he’d lied when they’d first questioned him. Now he wanted to come in and tell the truth.
What Keith Gillette told the police on October 15, 2018 would lead to a precedent-setting indictment that has landed a drug dealer in prison for 18 years:
Paiva, who’d been suffering from an opioid addiction, had appeared “dope sick” when Gillette first encountered him that day in September at the McKinney homeless shelter. Feeling badly for him, Gillette called a contact whom he’d bought heroin from before. They arranged a meet-up.
He and Paiva took the bus to Portsmouth, where they stopped for a slice of pizza before crossing the street to buy syringes at a CVS. Paiva was nervous about purchasing the syringes, so he handed money to Gillette, who bought them for him. They then crossed East Main Road to Clements Market, where Gillette purchased the drugs.
He identified the dealer as Cary Pacheco, 57, of 251 Briggs Road, Westport, Massachusetts. Pacheco, Gillette said, was the man who had sold him the fentanyl-laced heroin that resulted in Paiva’s death.
Police were able to determine through the Massachusetts Probation Service that Pacheco was wearing an electronic monitoring bracelet at the time of the drug deal. The bracelet placed Pacheco in the parking lot of Clements Marketplace at 7:30 pm on September 10, 2018.
On November 29, 2018, Gillette, along with an undercover Newport police detective, arranged to buy 20 bags of fentanyl from Pacheco. Another man, Michael Vandenburgh, now 51, of Fall River, Massachusetts carried out the transaction on behalf of Pacheco, according to police. When the deal was complete, Pacheco and Vandenburgh were both arrested. At the time of the arrest, the police found 61 additional bags of fentanyl in Pacheco’s possession.
Vandenburgh has since pleaded no-contest to two of the four offenses he was charged with in connection with that transaction and has completed serving a one-year prison term. The state dismissed the other two counts.
On September 30, Pacheco pleaded no contest before Judge William E. Carnes Jr. in Newport Superior Court to drug delivery resulting in death (DDRD) and received a 35-year sentence with 18 years to serve in the Adult Correctional Institutions. The remaining years were suspended and he will be on 17 years’ probation upon release.
The plea deal makes Pacheco the first person in Rhode Island to be sentenced under the controversial Kristen’s Law, a felony that carries a penalty of up to life in prison.
Kristen’s Law took effect in 2018, creating a clearer pathway than had previously existed for prosecutors to charge drug dealers for selling drugs that lead to a fatal overdose. It was named after Kristen Coutu, a woman from Cranston who died of an overdose at age 29 in 2014. Like Paiva, Coutu thought she was using heroin, but her dealer had sold her fentanyl, a far cheaper and more potent drug. She died alone in her mother’s car.
“There should be consequences for the people who are career criminals, career drug dealers, who are playing Russian roulette with people’s lives,” said Sue Coutu, Kristen’s mother, who lobbied at great lengths to pass the bill.
In 2018, the year Kristen’s Law took effect, the Office of the Attorney General reported that overdose deaths were the leading cause of injury deaths across the state, killing more Rhode Islanders than suicide, homicide, violence-related deaths, and car crashes combined.
There were 314 people who died of overdose in Rhode Island that year, according to the Rhode Island Department of Health.
Andrew Paiva was one of them.
“If you are doing this with malice, selling toxic substances to someone who is vulnerable and they die, [you] should be held accountable,” said Joee Lindbeck, a former special assistant attorney general who was in charge of lobbying for legislation for the office.
But harm reduction advocates are not convinced Kristen’s Law will achieve what it is intended to. Such laws have had no effect in decreasing the sale of illegal drugs by street dealers, according to studies they cite. They also worry that Kristen’s Law will be used unfairly to charge vulnerable users with homicide if they share drugs with a friend who then dies of overdose.
Several advocacy groups spoke out against the law when it was being debated in the General Assembly. In a letter to then-Governor Gina Raimondo signed by dozens of medical organizations and professionals across the state, the Rhode Island Medical Society wrote: “The bill’s language does not prevent the prosecution of ‘small time’ dealers who trade or sell drugs, and who may themselves struggle with substance use disorder, or those who provide drugs to a friend for a few dollars or in exchange for a bed for the night. It is these individuals, not drug kingpins, who are most likely to get charged under this law...”.
“Working towards public health solutions, not retribution, is what we need,” said Haley McKee, co-chair of the Substance Use Policy, Education, and Recovery (SUPER) PAC, who recovered from substance abuse herself and lobbied against Kristen’s Law.
The bill eventually passed, but with some amendments. The original bill had called for a mandatory life sentence. The amended version allows for life sentences to be imposed but does not make them mandatory. It also carves out a Good Samaritan exception, which grants immunity to people who call 911 if they believe that a user is overdosing.
Pacheco has a lengthy criminal record, including 10 separate arrests for distribution and/or possession of drugs from 1984 through 2017. He has also been charged with home invasion as well as assault and battery on a household/family member in Massachusetts, and a misdemeanor charge for driving with a suspended license in Rhode Island.
In March 2019, a Newport County Grand Jury indicted Pacheco on five charges relating to the undercover drug deal that led to his arrest and the drug transaction that led to Paiva’s death: one count of delivering fentanyl; one count of delivering heroin; one count of delivering tramadol; one count of controlled-substance conspiracy; and one count of delivering fentanyl, resulting in death, otherwise known as Kristen’s Law or drug delivery resulting in death (DDRD).
Pacheco’s attorneys attempted in April to get the DDRD charge dismissed. In a court filing in support of the motion to dismiss, the defense argued that the wording of Kristen’s Law is “unconstitutionally vague.”
Prosecutors countered that the statute specifies that a person is guilty of DDRD if he or she unlawfully delivers drugs to a person who subsequently delivers the substance to another adult, death resulting. What took place between Pacheco and Paiva “is exactly what is prohibited” by Kristen’s Law, said Roger R. Demers, a special assistant attorney general.
The defense also argued that Kristen’s Law “allows for the imposition of an unconstitutionally excessive punishment” in violation of both the United States and Rhode Island Constitutions.
In response, prosecutors pointed out that because he had not yet been convicted or sentenced, Pacheco “lacks standing to raise a constitutional challenge to the penalty provided in the statute.”
On April 20, Judge Carnes denied the motion to dismiss, paving the way for the case to proceed to trial.
Instead, Pacheco made a deal with prosecutors: He would retract his original plea of not guilty and plead no contest to the DDRD charge. In return, prosecutors would dismiss the four other charges related to Pacheco’s arrest in 2018.
“Though it pales next to the price paid by his victim, [Pacheco] has now paid a heavy price himself: 18 years in state prison, every year entirely deserved,” said Attorney General Peter F. Neronha in a prepared statement.
“[Pacheco] knew exactly what he was doing: distributing a potentially lethal dose of fentanyl to whoever ultimately used it. He neither knew the victim nor cared what happened to him. He dealt drugs for profit, significant profit, without regard to the potentially life-altering consequences,” Neronha added.
Standing before Pacheco, the victim’s sister Brittany Paiva addressed the court at the sentencing.
“Andrew is the type of person that would give you the shirt off his back, his food, even his last dollar,” Paiva said. “He always made me laugh.”
“My brother died the day before my 27th birthday,” she continued. Her family spent that day deciding what color coffin her brother would be buried in. “For the rest of my life the passing of my brother will overshadow my birthday.”
But this year, at least, Pacheco’s sentencing has brought some relief in the wake of Brittany Paiva’s 30th birthday, which marks the third year since Andrew’s death. “The best gift I could ask for is finally having closure and my brother can be at peace,” Paiva told Carnes.
Still, Andrew’s mother will never dance with him at his wedding. He will never again laugh with his sister. There will always be an empty seat at the table on holidays. And he will never experience life again, Paiva told the court.
Asked if he had anything to say following Paiva’s remarks, Pacheco replied “No, Your Honor.”
While Pacheco is the first person in Rhode Island to face a DDRD charge, thousands have been prosecuted under similar laws across the country. Between 2010 and 2017, the number of DDRD charges brought by prosecutors in a year jumped from 66 to 699, according to the Health in Justice Action Lab at Northeastern University.
More than two dozen states now have DDRD laws on the books, though they vary greatly in language and enforcement across states.
Rhode Island is one of eight states that allows for a sentence of up to life in prison for DDRD. Four states allow for the death penalty and the remaining 13 with DDRD laws enforce maximum incarceration periods of between 10 and 60 years. Under federal law, a person found guilty of DDRD now faces a minimum of 20 years in prison.
The Health in Justice Action Lab reports that between 1974 and 2018, the state most active in pursuing drug-induced homicide charges was Pennsylvania, at 731 cases, followed by Ohio at 432 cases and Wisconsin at 405.
Oftentimes, defendants in DDRD cases are people struggling with substance use disorder themselves.
“Out of the half dozen drug delivery resulting in death cases that I’ve been assigned to as a public defender, all of the defendants were drug users,” said Joshua Neiderhiser, an attorney in the Office of Conflict Counsel in York County, Pennsylvania, which holds the second-highest record for DDRD cases nationwide.
A majority of DDRD prosecutions are being brought against people who are not drug dealers at all, according to the Health in Justice Action Lab. In a sample of 213 cases brought against individuals accused of drug-induced homicide between 2000 and 2017, 50% of those accused were a caretaker, family member, friend, or partner; 47% of those accused were dealers; and 3% were doctors.
And unlike Pacheco, most of those who fall into the category of drug dealer tend to be at the lower level. “It’s rare that you get anybody who’s actually kind of a nasty or big time dealer,” said Jeremiah Goulka, Director of Justice Policy at the Health in Justice Action Lab.
Still, Rhode Island Attorney General Peter F. Neronha says Kristen’s Law is “a useful tool for prosecutors to have in their toolbox.”
Before Kristen’s Law was passed, DDRD cases were often charged under the felony murder rule, “which jurors have trouble with sometimes,” Neronha said in an interview. The felony murder rule says that a person can be charged with first-degree murder, even if they were not the actual killer, if they were involved in a dangerous felony that resulted in a death.
“Jurors have a hard time deciding liability in a complicated context. The [DDRD] statute clarifies that a drug dealer could be culpable,” said Neronha.
The question is not whether the law should exist, Neronha said, but when it should be used.
He said he has instructed his prosecutors to bring every case “that might involve Kristen’s Law” to his attention before charging a person.
But despite Neronha’s assurances, harm reduction advocates in Rhode Island continue to worry that prosecutors will start using Kristen’s Law to charge more low-level dealers, as has occurred in Pennsylvania.
DDRD laws are like “a pandora’s box,” said Sarah Seymour, Project Coordinator at the Health in Justice Action Lab. Once prosecutors start using DDRD charges in a state, the standard for who counts as a high-level dealer becomes looser.
“Something that we really question is: who is a dealer?” said Seymour. “It’s often a very biased perspective. It’s very often young black men.”
A disproportionate number of charges are being brought in DDRD cases where the victim is white and the dealer is a person of color, according to the Health in Justice Action Lab. And there is disparity in sentencing based on race. From 2008-2018, the median sentencing for Black defendants convicted under a DDRD statute was ten years, compared with 6.5 years for white defendants, according to the Health in Justice Action Lab.
Critics of Kristen’s Law also point to evidence that it could scare drug users from calling 911 in the case of an overdose, even though they’d be protected from prosecution by Rhode Island’s Good Samaritan law.
Rhode Island is one of the only states with a Good Samaritan law that covers deaths, said Goulka. Most only cover possession. This makes Kristen’s Law “a relatively sane law in a context where it’s not sane at all.”
But research shows that DDRD laws are “ineffective at just about every level,” Goulka said.
Members of the Paiva family fear that no one will be held responsible for their son’s death. But they also worry that Kristen’s Law will be used to prosecute people who, like Andrew, struggle with substance abuse and may share drugs that lead to a fatal overdose.
— With reports by Audrey Kim