Charging Bit Players With Drug-Induced Homicide Is Unjust and Potentially Deadly

A new investigation of Pennsylvania prosecutions confirms that the defendants are often friends or low-level dealers.

Prosecutions for "drug-induced homicide," which have risen dramatically in recent years, are ostensibly aimed at reducing opioid-related deaths. But as a new investigation by the Pittsburgh Tribune-Review shows, there are good reasons to think they have the opposite effect. Consider the paper's description of a typical case:

In one 2019 case, a Westmoreland County man died from an overdose of drugs he'd gotten from a friend of a friend of a friend. Though the drugs ultimately came from a man called "Bee" in Penn Hills, the three individuals between the victim and Bee were all charged with drug delivery resulting in death [DDRD].

One pleaded guilty to drug delivery resulting in death and received a 5- to 10-year prison sentence. Another pleaded guilty to the same charge and was sentenced to a minimum of one year minus one day in jail and a maximum of two years minus one day. The third person is awaiting trial.

It is hard to believe that such prosecutions of bit players have any impact on the supply of heroin and illicit fentanyl. Furthermore, charging people with homicide when their role in someone's death was unintentional and incidental or highly attenuated is blatantly unjust. Under Pennsylvania law, Stormie Mauck notes in a 2019 Penn State Law Review article, "drug addicts may face imprisonment of up to 40 years for simply sharing drugs with a friend who overdoses."

Worse, this strategy makes fatal overdoses more likely by deterring bystanders from seeking medical assistance when it could make a crucial difference. The threat of a DDRD charge thereby undermines the goal of "Good Samaritan" laws that aim to encourage lifesaving intervention by shielding overdose witnesses from possession charges when they call 911. While Pennsylvania has a Good Samaritan law that was extended to drug users in 2014, it provides no protection against DDRD charges.

In fact, Pennsylvania legislators magnified the threat of such charges in 2011, when they loosened the definition of the offense. It had previously been classified as a type of third-degree murder, which according to the Pennsylvania Supreme Court meant that prosecutors had to prove malice. The current statute applies to anyone who "intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance" when "another person dies as a result of using the substance." While the law does not specify a mens rea requirement for the resulting death, the Pennsylvania Superior Court has held that the defendant must have acted "at least recklessly."

In other words, Pennsylvania is simultaneously pursuing policies that encourage and deter prompt medical attention for people who overdose. The Tribune-Review notes that "legal experts and researchers from Pennsylvania and beyond have come to a grim observation: The harsher law is causing overdose deaths."

According to a tally by the Health in Justice Action Lab at the Northeastern University School of Law, Pennsylvania prosecutors filed DDRD charges 781 times between 1974 and 2018. The Tribune-Review found that "about 625" of those charges—80 percent—were filed from 2015 through 2018, and "another 246 came in 2019," which reflects the growing use of this strategy in response to the "opioid crisis." But contrary to the rhetoric of prosecutors who claim to be cracking down on drug kingpins, the defendants in such cases are often low-level dealers, who frequently are selling drugs to pay for their own habits, or other drug users who simply shared opioids with someone who died of an overdose.

Based on "dozens of criminal complaints filed against defendants in DDRD cases in parts of Southwestern Pennsylvania in recent years," the Tribune-Review reports that "many facing these charges are relatively low-level dealers." Jonathan Fodi, a former prosecutor who is the Western District vice president of the Pennsylvania Association of Criminal Defense Lawyers, told the paper he and his colleagues never see DDRD cases that involve high-level dealers. "Several have handled cases where a fellow user has been charged [under] the DDRD statute," Fodi said. "None of us, on the flip side, have represented what you might categorize as a higher-level 'true' dealer—what we might say is the type of individual who should be targeted by this type of legislation."

As the Drug Policy Alliance has noted, the situation is similar in other states. A 2002 analysis of 32 drug-induced homicide prosecutions, published in the New Jersey Law Journal, found that "25 involved prosecution of friends of the decedent who did not sell drugs in any significant manner." According to a 2017 report by a Wisconsin TV station that looked at the 100 most recent prosecutions for drug-induced homicide in that state, "nearly 90% of those charged were friends or relatives of the person who died, or the lowest people in the drug supply chain." When the Chicago Tribune examined drug-induced homicide cases filed between 2011 and 2014, it found "the defendant was typically the last person who was with the person who overdosed."

That pattern is unsurprising, because the causal link necessary to convict someone of drug-induced homicide is easiest to prove when the defendant directly interacted with the decedent. This strategy inevitably focuses on "the last rung in the supply chain above the victim," as the Tribune-Review puts it.

The Tribune-Review describes several DDRD defendants, including "a Delmont woman" who "called paramedics when she found her boyfriend unresponsive in their bathroom"; "two friends" who bought heroin for a man who overdosed at a Taco Bell; and "a Monessen woman" who "sent her cousin to buy a brick of heroin," then "sold five stamp bags to a friend, who then sold four bags to an Elizabeth Borough man who died from a fatal overdose." Cases like these, which involve minor offenders who are just as clueless as the average drug user about the content of the substances they buy on the black market, accomplish nothing in terms of reducing access to opioids. But they are a stark warning to any drug user who happens to be around when someone overdoses: If they call for help that proves unsuccessful, they may face a charge that can send them to prison for months, years, or even decades.

Who should be blamed when someone dies after consuming illegal opioids? The user himself knowingly risked death by taking drugs of unknown provenance and composition, typically combined with other substances that increase the risk of a lethal outcome. Legislators are also partly responsible, since they created a black market in which purity and potency are highly variable and unpredictable. So are law enforcement agencies, which increase uncertainty by trying to disrupt that government-created market through arrests that force users to switch suppliers. So are the regulators who have driven nonmedical opioid users into the black market by discouraging prescriptions of reliably dosed narcotics, a policy that predictably accelerated the upward trend in opioid-related deaths.

Unsurprisingly, legislators and law enforcement agencies are loath to acknowledge their role in raising the death toll. Instead they have settled on a narrative that absolves them of responsibility and justifies a policy that magnifies the problem they claim to be tackling.