The Mountain states, like many others, are wrestling with an overdose crisis caused by the increasingly unpredictable and dangerous drug supply that prohibition fosters. And 2023 has seen policymakers across the political spectrum reach for a familiar tool: so-called “drug-induced homicide” (DIH) laws that reframe accidental overdoses as murder or manslaughter. Colorado, Utah and Wyoming—neighboring states with diverging political ecosystems—have all considered DIH bills this year.
All three ultimately rejected them. But the reasons for those rejections are not universally encouraging—and general political understanding of ways to address the crisis remains woefully inadequate.
DIH laws are currently in effect in 25 states. Thirty years of data show that these laws fail to disrupt drug supply or demand, and there’s evidence that they increase overdose deaths by engendering fears that calling 911 in the event of an overdose will result in prosecution. One study estimated that from 2000 to 2017, media coverage of DIH prosecutions was “associated with an approximately 7.7% increase in overdose deaths”—about 32,000 additional lives lost.
What’s more, nationwide research shows that half of all DIH prosecutions are brought against people who were using drugs alongside the person who died—often friends, relatives or romantic partners. The prosecutions overwhelmingly target people of color.
Ironically it was Colorado, the most progressive of the Mountain states, that not only had the most extreme DIH bill, but came closest to making it law.
The three Mountain states’ DIH bills differed in the details. Colorado’s bipartisan bill, SB23-109, originally covered all Schedule I and Schedule II substances, included situations of people sharing drugs together, and carried a maximum sentence of 32 years in prison.
Utah’s Republican bill, SB23-245, was limited to opioids and methamphetamine, didn’t include drug-sharing, and carried a maximum sentence of 15 years.
And Wyoming’s Republican bill, SF0181, was limited to fentanyl, heroin and meth, did include drug-sharing, and carried a maximum 20-year sentence.
Utah and Wyoming—states with huge Republican legislative supermajorities—rejected their DIH bills as misguided and ineffectual. The opposition was bipartisan: Democrats did not cast a single vote in support of DIH, and a majority of Republicans spurned them as well.
Ironically it was Colorado, the most progressive of the Mountain states, that not only had the most extreme DIH bill, but came closest to making it law. Although the 2022 elections gave Democrats their biggest and most liberal majority in the legislature in decades, those Democrats were split in their opinions. The DIH bill had bipartisan sponsorship, and meaningful Democratic support.
Colorado’s bill easily passed the Senate Judiciary Committee and Senate floor votes. It was eventually killed in the House Judiciary Committee on May 5— thanks in part to a last-minute substitution on the committee of a progressive Democratic House member (Rep. Amabile) for a more conservative one (Rep. Daugherty). The bill likely had the votes in the House to pass, so if it had made it out of committee, it would have gone to the governor.
Grotesquely, Republicans’ opposition to DIH was also based on attributing blame to the victim.
While Colorado Republicans were universally in favor of the DIH bill, the same was not true of red-state Republicans in Wyoming and Utah. Some of them expressed reluctance to assign guilt to a person facilitating voluntary drug use without malice—a point with which harm reductionists would agree.
But grotesquely, their opposition to DIH was also based on attributing blame to the victim instead. Republicans in these states were concerned that DIH laws removed personal responsibility from people that died. For example, on February 24, the day Utah’s bill was killed on the Senate floor, Senator Lincoln Filmore (R) said of his no vote: “We appear to be absolving the person who is actually ingesting the drugs … and I’m concerned that we take a person who has no intent to kill and charg[e] them with murder.”
Wyoming Republicans also worried that their proposed law did not address intent, acknowledging that many people are likely selling substances containing fentanyl without knowledge of it, or without any intent beyond simply meeting a demand. “Even the suppliers are probably, at the street level, addicts as well,” said Sen. Case Cale (R) on February 1. “For those people, I’m not sure what charging them with murder achieves as far as a deterrent.” That bill was killed in the House on March 1.
Colorado, despite the eventual defeat of its DIH bill, seems to have gone backwards. The state had appeared to be firmly on the path towards decriminalizing low-level drug possession when, in 2019, state lawmakers defelonized the single-use possession of all Schedule I and II drugs.
But in 2022, spooked by the surge in fentanyl-involved deaths and looking to forestall being painted as “soft” on drugs and crime in an election year, Democrats in the legislature introduced and passed the Fentanyl Accountability and Prevention Act. This made possession of more than 1 gram of any substance—even baby aspirin—containing even a dusting of fentanyl a felony.
The bill also contained “historic funding” for harm reduction—largely funneled through the state’s jails and prisons. Its sponsor, Rep. Leslie Herod (D), has since called the legislation a mistake. “As I watch the Department of Corrections ask for more beds to fill with folks who are addicted without having enough providers to provide mental health services to those people? We were wrong,” she said in February. “We didn’t get it right.”
“We don’t have to guess what justice looks like for the families, because we have families who are telling us.”
Supporters of Colorado’s DIH bill framed it as advancing the interests of overdose victims’ families.
“These are real people who have families and friends who love them. They and their families deserve justice, and Senate Bill 109 provides a path to that justice,” said Sen. Kyle Mullica (D), the bill’s principal sponsor.
“Oftentimes we don’t keep the families in mind, those victims of these crimes,” said Rep. Mike Lynch (R), another sponsor. “The mother and brother who lost a loved one. What do we do for those folks? How do we as lawmakers approach those families?”
“I implore you to think about the victims in this,” he continued at the May 5 House Judiciary Committee hearing. “Where is their justice?”
There are some bereaved family members who advocate for DIH laws. But it was notable that none of them testified in support of the bill at that hearing. Many family members of people who died did come, however, to urge that the bill be rejected.
Referring to this, Rep. Elisabeth Epps (D) argued, “We don’t have to guess what justice looks like for the families, because we have families who are telling us.”
“We heard from Morgan [Godvin] and Ember [Gren],” she continued. “Morgan was convicted of DIH for the death of Justin. Ember, Justin’s mother … testified after the person … went to prison for the death of her own child and asked us not to do this.”
“This bill is all about trying anything. I don’t know how we couldn’t do whatever we could, whether it works or not.”
Bill sponsors in both Colorado and Utah seemed to admit that they were proposing DIH legislation simply because they had no idea what else to do about the overdose crisis.
“This is maybe a little out of desperation to do something about the rise in deaths from fentanyl and other types of drugs,” said Sen. Todd Weiler (R), sponsor of Utah’s DIH bill.
“I think most of you know this is a very personal issue to me, I have a family member in the throes of a fentanyl addiction,” said Colorado Rep. Marc Snyder (D) at the May 5 hearing. “I’m somewhat of a desperate parent who is looking for any answers I can find. I’m willing to try anything.”
“This bill is all about trying anything,” echoed Colorado Rep. Mike Lynch (R), one of the sponsors, at the same hearing. “I don’t know how we couldn’t do whatever we could, whether it works or not.”
“That’s half right,” replied Rep. Epps. “Whatever it takes, absolutely. But whether it works or not? Absolutely not. There’s something wrong with doing it when our neighboring states have tried it and it didn’t work.”
Photograph via pxhere/Public Domain
Morgan Godvin is a member of the board of directors of The Influence Foundation, which operates Filter.