In my recent Forbes column about dangerous drug substitutions encouraged by prohibition, I mentioned the March 2013 death of Renee Honaker, a 30-year-old West Virginia woman who took "LSD" that turned out to be 25B-NBOMe. As I noted at the time, Roane County Prosecuting Attorney Josh Downey charged her husband, Todd Honaker, with first-degree murder for sharing the drug with her. But Downey ultimately had to drop that charge because the relevant statute, which makes delivery of a controlled substance resulting in death punishable by life in prison, applies only to prohibited drugs. At the time of Renee Honaker's death, 25B-NBOMe was not banned by West Virginia or federal law.
In an agreement reached last December (which I came across while researching the Forbes column), Todd Honaker pleaded guilty to involuntary manslaughter. He also agreed to cooperate in the prosecution of the chemist who supplied the 25B-NBOMe. Honaker was sentenced to one year in jail, nine months of which he had already served. His mother-in-law complained that the punishment was too light. "My disappointment with the legal system right now cannot be expressed," she told The Charleston Gazette. "It just seems like catching up with the guy that created the drug is more important then the life of my daughter."
Whatever you might think of Honaker's legal or moral culpability for his wife's death, equating it with first-degree murder was clearly absurd. He took the same amount of the same drug she did, which both of them evidently thought was LSD. He clearly did not intend to kill her; nor was her death a forseeable consequence of taking LSD, which has never caused a fatal overdose.
Yet Downey was prepared to put Honaker in prison for the rest of his life when he mistakenly believed the case involved LSD. When Downey discovered that the drug was actually a considerably more dangerous substance, but one that the West Virginia legislature had not gotten around to banning yet, he had to settle for a one-year sentence. If the issue is Honaker's responsibility for his wife's death, it makes no sense for such a huge difference in punishment to hinge on the whims of state legislators.