Arizona May Enact 35-Year Mandatory Minimum for “Drug Trafficking Homicide” of Kids

    A kid dying of an opioid-involved overdose is a tragedy. Thankfully, it is comparatively rare, if increasing, according to an article published by JAMA Network Open at the end of 2018.

    Researchers found that 8,986 children and adolescents under 20 died of opioid-involved overdose in the United States between 1999 and 2016, with the mortality rate increasing almost three-fold over that period. Of the total, almost 20 percent were classified as “intentional” deaths, such as suicide or murder.

    In contrast to today’s overdose crisis in the general population, prescription opioids, which may be more accessible to minors, were involved in over 70 percent of those teenage deaths. Heroin, a drug frequently involved in drug-induced homicide cases, was involved in 1,872 deaths of 15- to 19-year-olds between 1999 and 2016. Despite a steep increase over the period, such deaths remained relatively low by 2016, in a national context of over 42,000 opioid-involved deaths and over 15,000 heroin-involved deaths that year.

    When local media in Arizona last year reported that teens are overdosing at “alarming rates,” and that “teens as young as 14 years old have overdosed and died” after taking fentanyl, it may not have been wrong—any such deaths are alarming—but it omitted this context of relative rarity.

    At the end of 2021, a handful of state lawmakers filed House Bill 2021—a drug-induced homicide bill with a twist.

    It would classify the charge as a “dangerous crime against children” when the person who died is under 15, increasing the mandatory minimum to 35 years without parole.

    If passed, it would make drug-induced homicide (with the legal moniker “drug trafficking homicide”) a felony, with a mandatory minimum prison sentence of 10 years. Such laws have long been condemned by harm reduction advocates.

    But what’s more, this bill would classify the charge as a “dangerous crime against children” when the person who died is under 15. That would increase the mandatory minimum sentence to 35 years in prison without a chance at parole. Virtually all of the 41 crimes that currently qualify as dangerous crimes against children under Arizona law involve rape or sexual abuse.

    In practice, this enhancement would almost never apply. But this supposed “child protection” element—in fact, drug-induced homicide laws do nothing to reduce overdose—was arguably included to make it even more politically difficult for any legislator concerned with re-election to vote against it. HB 2021 is also named the Ashley Dunn Act—after a young woman who recently overdosed and died, at age 26.

    The bill has also exposed growing fault lines in the ranks of Arizona’s top local prosecutors. Yavapai County Attorney Sheila Polk helped Ashley Dunn’s mother through the process of getting legislators to pick up the issue, according to a segment on KYCA Radio.

    On the other hand, Laura Conover, the newly elected prosecutor of Pima County (Tucson), the second largest in the state, testified against the bill. Her Twitter account argued that it would “fail to mitigate the tragedies of fentanyl, like other failed drug policies have done little to nothing to address substance use disorder.”

    The Arizona legislature is conservative and carceral, so it would be surprising if Conover’s opposition to HB 2021 prevailed. However, it displays one of the less-appreciated aspects of the movement to elect reform-minded prosecutors. Conover’s testimony shows lawmakers that law enforcement officials do not represent a unified cabal against smart drug policies. That gives lawmakers more political cover to do the right thing.

    Traditionally, elected prosecutors have formed lobbies to perpetually demand more and harsher punishment, despite those policies’ failure to drive increases in public safety. Breaking from that mold has a tendency to provoke backlash from “tough on crime” interests.

    However, Conover treads a line that makes her difficult to pin down as a “progressive” prosecutor. She does not shy away from certain criminal justice reform positions, describing arrests for drug possession and paraphernalia, for example, as leaving her community “unhealthy and less safe,” and declaring, “The death penalty is over.” In late 2021, Conover announced her intent to no longer prosecute drug possession due to COVID-19 risks.

    But neither does she pitch herself as radical. Indeed, local grassroots organizations like Mass Liberation have sharply critiqued Conover for her relationship with the police; on the campaign trail, she frequently referred to lessons she said she’d learned from her brother, a sergeant with the Tucson Police Department, and she has done “ride-alongs” in office.

    That said, when influential writers and organizations smack “progressive prosecutors” down, her name is hardly ever included. State lawmakers are not demanding that Conover resign, like they are doing with Philadelphia DA Larry Krasner in Pennsylvania, and she is likely to stay in office longer than her higher-profile counterparts in Baltimore and Boston. In a conservative political landscape, that could be of significant help to people who use drugs.

     


     

    Photograph of Arizona state capitol by Wars via Wikimedia Commons/Creative Commons 3.0

    • Rory is a writer and licensed attorney. Previously, he ran Foglight Strategies, a campaign research services firm for forward-thinking prosecutors, and worked for the Law Enforcement Action Partnership, Harvard Law School Fair Punishment Project and the National Network for Safe Communications at the John Jay College of Criminal Justice. He lives in Philadelphia.

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