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An Overdose Is Not a Murder

Treating opioid-related deaths as homicides is unjust and may deter bystanders from seeking help.

A couple of years ago at a motel in Columbus, a young woman shared a bag of heroin with her father. Both of them nodded off. Because she woke up and he did not, she was sentenced to three years in prison for involuntary manslaughter.

That arbitrary outcome encapsulates the senseless cruelty of a strategy that in recent years has gained favor among prosecutors across the country: treating opioid-related deaths as homicides, regardless of intent. The resulting prosecutions not only are manifestly unjust but could make fatal overdoses more likely by discouraging bystanders from seeking help.

A recent New York Times investigation identified more than 1,000 arrests or prosecutions related to accidental opioid deaths in 15 states from 2015 through 2017, a period when the annual number of cases almost doubled. According to a 2017 report from the Drug Policy Alliance (DPA), annual press mentions of such prosecutions more than tripled between 2011 and 2016, from 363 to 1,178. DPA found examples in all but four states.

Twenty states have laws that specifically address drug-induced homicide, DPA senior staff attorney Lindsay LaSalle notes in the report, while others "charge the offense of drug delivery resulting in death under various felony-murder, depraved heart, or involuntary or voluntary manslaughter laws." Possible prison sentences range from two years to life. Under federal law, drug distribution resulting in death or serious injury is punishable by 20 years to life.

Although legislators and prosecutors may portray such cases as a way to punish callous, death-dealing drug traffickers, the defendant is usually someone close to the decedent. As a practical matter, that makes sense, because the higher up you go in the distribution chain, the harder it is to prove a connection between the defendant and a particular consumer.

The upshot is that a defendant's role in "distributing" a drug may be limited to buying it for someone else, arranging a purchase, or sharing a stash. When money changes hands, the dealers are often selling just enough to finance their own habits.

Looking at cases in Pennsylvania during the first half of 2017, the Times found that three-quarters of the defendants were themselves drug users. Last year WITI, the Fox station in Milwaukee, reviewed the 100 most recent prosecutions for drug-induced homicide in Wisconsin and found that "just 11 defendants were higher-level drug dealers," while the rest were friends, relatives, or "low-level street dealers."

A woman in Minnesota got four years for sharing a fentanyl patch with her fiancé. A New York woman got six years for mailing a friend some heroin at his request while he was on a business trip in Chicago. A Louisiana man got a life sentence for using heroin with his girlfriend.

"Many law enforcement officers hope that the cases act as a deterrent," the Times notes. But it may not be the kind of deterrent they have in mind.

Because prompt medical attention is crucial in saving people from potentially fatal opioid overdoses, 40 states and the District Columbia have enacted "911 Good Samaritan" laws that shield bystanders from some drug-related charges when they call for help. But those laws do not apply to homicide charges.

A 2002 analysis of drug-induced homicide prosecutions in New Jersey found that most of the defendants were friends of the decedents and "in some cases the people who sought emergency care for them." A Minnesota woman is serving a six-year prison sentence because she let her husband take methadone prescribed for her, even though she called 911 and tried to save his life. A woman who was charged with drug-induced homicide in Illinois because she helped her husband buy heroin was the person who called 911 when he overdosed.

"The most common reason people cite for not calling 911 in the event of an overdose is fear of police involvement," DPA's LaSalle notes. "The only behavior that is deterred by drug-induced homicide prosecutions is the seeking of life-saving medical assistance."

© Copyright 2018 by Creators Syndicate Inc.

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  • Hackmaschine Mutter||

    The vigorous prosecution and imprisonment of drug users seems to be not only useless and enormously expensive but contrarian to the pursuit of Life, Liberty & the right to shoot-up. Maybe I'm missed something in the nanny narrative, but just too many damn laws to protect & punish.

  • DajjaI||

    If aggressive prosecution of drug dealers saves just one kid from getting addicted then it will be worth it. Who knows, maybe that kid will grow up and discover the cure for the disease.

  • C. S. P. Schofield||

    If aggressive persecution (yes, that's deliberate) of drug users and dealers causes one chronic pain sufferer to have to do without sufficient medication to alleviate his suffering, the whole war of drugs is a barbaric exercise in fascist overreach.

    Furthermore, each and every overdose caused by the uncertain nature of street drug should indeed be prosecuted as homicide...with the government as defendant.

  • gaoxiaen||

    +1 proximate cause

  • Iheartskeet||

    Spot On.

  • JuanQPublic||

    If aggressive prosecution of drug dealers saves just one kid from getting addicted then it will be worth it.

    "If it saves just one child" has been the rationale for lots of bad law, and frankly, it's become comical. Politicians hide behind the children to push more bad, ineffective law. We already know the "war on drugs" doesn't work, nor is it just. But if feelings are more important than evidence and actually addressing the problem, then by all means, keep doing the same thing.

  • Nobody Special||

    This is flawed and dangerous thinking based in emotion, not reason.

    The only person who can save "just one kid" from getting addicted is that kid, yet how many millions of people absolve themselves of guilt or criticism by CLAIMING to be acting out of concern for another person? Unpleasant as it may seem to those trying to dodge grief and guilt, the dead are no less dead and no more comfortably dead as a result of what the living do.

    If you value freedom, you should be wary of advocating positions that imply people are incapable of making responsible choices unless the government has already limited their options.

  • ohdelilah||

    It's aggressive prosecution of laws intended from the very start to so only harm that's causing the deaths in the first place.

  • ohdelilah||

    *do* only harm.

  • Jerryskids||

    There's a war on and sometimes there's collateral damage. In this case, the bad guys are getting taken out and their family, friends, acquaintances and associates are hardly innocent bystanders. Think of this as drone-striking a terrorist's funeral and applaud our brave heroes for finally getting tough on crime. Besides which, the drugs are doubtlessly smuggled across the border and you know how we feel about illegal immigration.

  • Brett Bellmore||

    An overdose is not necessarily murder. It certainly can be, if intentional.

    But this is just application of a standard legal principle, that any deaths which take place as a consequence of the commission of a crime are treated as homicide on the part of the (surviving?) criminals. If you're robbing a bank, and the cops shoot your partner dead, expect to be charged with his murder.

    I'm not defending this principle, which is applied beyond all reason. Just pointing out the lack of novelty, and that this is not confined to drug law enforcement.

  • ThomasD||

    Such statutes usually only apply during the commission of a felony, often only a violent felony.

    But there is another legal principle involved here, that of reckless disregard.

    I'm not convinced that the sharing of something you yourself ingest qualifies. But giving or selling something of questionable or dubious provenance that you know people are going to ingest, often via injection?

    It's one thing to pack someone else's parachute. It's another thing to do so with no knowledge of how a parachute works, or whether or not the fabric you are using is actually suitable for use as a parachute.

    There is a line, that can be crossed. Exactly where that line lies may vary, and I'd leave the determination up to a jury.

  • Widhalm19||

    I'm for giving away free heroin (and lots of it) plus syringes to everyone who wants it. This is an excellent way to eliminate societies losers and lunatics. Natural Selection by self-injection. Yaaa Hoooo!

  • ohdelilah||

    Well, aren't you a peach.

  • JuanQPublic||

    This is just yet another example of bad law not based on evidence and outcome, but feelings. Bad law is a burden on the U.S., and evidence-based policy is the obvious answer. Correcting it will surely be a long process, but for anyone who cares about evidence and actually improving social problems, rather than using them as a vehicle for righteousness, it will be worth it.

  • Curly4||

    In some states if a person provides narcotics and someone dies that person who provided the narcotics can be charged with murder. It is something like when several person pulls a robbery and one of the robbers kills a person all can be charged with murder because it happened in the course of committing a crime.

  • ohdelilah||

    Does it occur to you that deterring people from helping is exactly what's intended?

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