Ed Buck Case Is a Chance to Spotlight Drug-Induced Homicide Charges

    Ed Buck, the businessman and Democratic donor, was a blip on the national news radar until the methamphetamine-related deaths of two of his younger adult Black male sex partners in August 2017 and February 2019. Now, a federal indictmentfollowing the non-fatal overdose and apparent escape from Buck’s apartment of a third young Black man this monthchanges everything. The United States Department of Justice has declared Buck a “serious threat to public safety” and a “violent, dangerous sexual predator.” 

    Buck faces the federal drug-induced homicide charge (among others), which carries one of the harshest mandatory minimum prison sentences in US law: 20 years in prison. Drug-induced homicide laws—which imply that people who use drugs lack agency, and that people who sell or share drugs wish death upon others, and punish on this basis—have long been condemned by drug policy reform advocates.

    Yet Buck is no poster child for the misery so often inflicted by the criminal legal system. As an incredibly rich, 65-year-old white man who paid younger Black men for sex and allegedly offered them more money if they’d let him inject them with meth for his gratification, he is accused of nothing less than the racially charged, callous, coercive exploitation of marginalized and vulnerable people. Law enforcement far too often ignores the victimization of sex workers and people of color.

    If such a high-profile example can shine national light on the uneven nature of drug-induced homicide prosecutions, that, too, will be welcome.

    Due to the privilege of being an important political donor, Buck has great societal influence. Los Angeles County District Attorney Jackie Lacey, to whom Buck donated in 2012, gave Buck a “pass” on the incidents at his home until a mass outcry occurred, involving over 50 civil rights organizations. The family of one of Buck’s alleged victims sued Lacey for ignoring the case due to racism (although Lacey is Black herself).

    The cases, and Buck’s conduct, should clearly be subject to criminal investigation. Yet if such a high-profile example can also shine national light on the uneven nature of drug-induced homicide prosecutions in general, that, too, will be welcome.

    The vast majority of overdoses that the federal government treats like murders do not involve a rich and powerful white man like Buck, or allegations of such exploitation. Instead, US Attorneys use their discretion to destroy people’s lives over accidental overdoses in very different circumstances, in a much crueler and more futile way.

    At baseline, drug-induced homicide prosecutions are already arbitrary at the local level. In this, they resemble how the death penalty is sought in an extremely irregular way based on who the local top prosecutor happens to be, not the malice of the crime, District Attorneys who use the charge often almost always have a strong personal incentive for doing so.

    For some, like Washington County Attorney Pete Orput in Minnesota, it’s as simple as him believing “you owe me for that dead kid.” Justice, for him, seems to mean retributionregardless of the extent of moral culpability.

    Others, like Milwaukee County District Attorney John Chisholm, a moderate supporter of criminal justice reforms, try to occupy the narrow space between the rock of anti-police brutality activists, who strongly dislike him for not charging cops who kill, and the hard place of police punching back at him for supporting some reforms.

    In doing so, he has been badly implicated. The Drug Policy Alliance discovered that a high-profile national training on how to mock up overdoses as homicides originates from Chisholm’s very own office. Perhaps it was his self-interested attempt to throw a bone to tough-on-crime voters in his county.

    Drug-induced homicide charges multiply tragedies. Roughly half of online news articles about these charges reveal a personal relationshipsuch as friendship or romantic partnershipbetween the “dealer” and the person who obtained drugs, according to the Health in Action Justice Lab.

    Federal prosecutors are unlike local prosecutors in that they pluck up a small number of cases they want to handle, generally in order to obtain harsher punishments than most states would dish out. All it takes to obtain federal jurisdiction is something like the use of a cell phone by a defendant.

    The Justice Manual, which guides prosecutorial decision-making on the federal level, recommends that charges be brought only when there is a “substantial federal interest.” Unfortunately, outsiders have no way of knowing what that truly means, as there is virtually no transparency in federal law enforcement. US Attorneys are also advised they should take issues like the general public’s interest and support of charges into account.

    In these terms, it is easy to see why US Attorney for the Central District of California Nick Hanna took the Ed Buck case into his own hands. The allegations against Buck, who got the street nickname “Doctor Kevorkian,” paint him as an habitual predator.

    Even those cases that are spared by federal prosecutors and handled less harshly by local ones are not safe.

    On the other hand, it is extraordinarily difficult to see how Middle District of Pennsylvania US Attorney David Freed thought driving a 26-year-old future medical school student to suicideby charging him in 2016 for the accidental, fatal overdose of his girlfriend while they shared drugswas justifiable. The public relations implications alone might have occurred, you would think, to an official attacked by the media for potential white nationalist ties.

    Similar questions apply to Philadelphia US Attorney William McSwain, who is currently leading the federal fight against safe consumption sites. McSwain obtained a 21-year prison sentence this year for a woman barely out of her teens who had relapsed and shared drugs with a friend, who then died. The woman expressed remorse and stopped using after the tragedy, but McSwain did not care. If her case had been handled by local prosecutors, she would have faced no mandatory prison time, although the maximum potential sentence could still have been up to 40 years.

    But even those cases that are spared by federal prosecutors and handled less harshly by local ones are not safe. With Congressional mandates on criminal justice so broken, federal prosecutors can often re-prosecute a case within a general five-year statute of limitations, if they personally feel like the state sentence was not harsh enough. All they would have to do is convince the Assistant Attorney General of DOJ’s Criminal Division that there was a “substantial federal interest”—whatever that is interpreted to mean. (The US Supreme Court has ruled that this does not violate the constitutional ban on double jeopardy, because the federal and state governments are “separate sovereigns.”)

    Every single person who disagrees with drug-induced homicide charges on ideological or moral grounds should be deeply concerned with the amount of power these gluttons for federal punishment possess.

    The general public, so often ignorant of these injustices, must also be educated on how easily drug-induced homicide prosecutions generate life-ruining punishments that bear no relation to the conduct of the defendant. Drug-induced homicide laws were not sold to us on this basis.

    Despicable and criminal as Ed Buck’s alleged conduct was, the attention now thrown on his case is a chance for us to have vital conversations about prosecutorial power, privilege, and punishment for the sake of retribution.


    Photo of Washington, DC courthouse by Retzer via Pixabay

    • Rory Fleming

      Rory is the founder of Foglight Strategies, a campaign research services firm for forward-thinking prosecutors nationwide. He previously worked for the Fair Punishment Project, which was founded as a joint project of Harvard Law School’s Charles Hamilton Houston Institute and its Criminal Justice Institute. Rory is a licensed Minnesota attorney.

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