Amid the overdose crisis, drug warrior district attorneys across the US have added a new tool to their prosecutorial arsenal: drug-induced homicide charges. Like most “law and order” responses to illicit drug use, it tramples human rights and is grounded in fundamental misunderstandings of addiction, drug cultures and the dynamics of illicit markets.
Since 2014, the number of people being charged with homicide for delivering a drug (typically mixed with fentanyl) that causes a fatal overdose has skyrocketed—from just 25 nationwide in 2007, to over 700 in 2017.
While many of the laws that allow this are not new (many were passed during the crack era), they were rarely applied until recently, a primer for defense attorneys recently published by Ohio State illustrated. The authors could find just 14 state or federal cases charging drug-induced homicide (DIH) throughout the 1980s and 90s—one of them involving the death of legendary comedian John Beluishi. Compare that to today: In Pennsylvania, a single county, York, saw a double-digit increase in such cases over the last few years.
Pennsylvania now files more drug delivery resulting in death (DDRD) charges than any other state. According to the Administrative Office of Pennsylvania Courts, these charges statewide increased by 1,267 percent between 2013 and 2017. The charge is a Class One Felony, and carries a penalty of up to 40 years in prison.
Its goal was equipping defense attorneys with the tools they need to successfully represent clients facing these charges.
To push back against this troubling trend, the National Association of Criminal Defense Lawyers (NACDL) hosted an off-the-record continuing education seminar at Penn State for over 100 defense attorneys and allies in Harrisburg, Pennsylvania on November 6. Its goal was equipping attorneys with the tools they need to successfully represent clients facing these charges. Eminent speakers included Rep. Sarah Inamorato (D-PA) and Leo Beletsky, an associate professor of Law and Health Sciences at Northeastern University and director of its Health in Justice Action Lab.
One speaker discussed the need to closely read mass spectrometry results, and understand the implications of the data they reflect in ruling a drug in or out as cause of death. Another discussed case law and the difference between strict liability states and states where evidence of some intent is required. Intent, or mens rea in legalese, is not a factor in Pennsylvania’s DDRD law, which covers any person who:
“…intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance or counterfeit controlled substance… and another person dies as a result of using the substance.”
The event was held in partnership with the Public Defenders Association of Pennsylvania, the Douglas W. Pollack Center for Addiction Outreach and Research, and the Health in Justice Action Lab. It was sponsored by Vital Strategies, a philanthropic group backed by Michael Bloomberg that promotes evidence-based responses to substance use disorder.
Charging a person with a crime that could put them behind bars for 40 years for engaging in the consensual sale of a substance that both parties know carries some risk has no demonstrated evidence of efficacy. On the contrary, it undermines the efforts of harm reduction advocates, who fought hard in 2014 to get a new Good Samaritan law passed in Pennsylvania—offering immunity from drug charges to people who call first responders when someone they are using with overdoses. It would be difficult to conceive of a greater disincentive to calling emergency services than the prospect of a felony charge of such magnitude.
Pursuing such a charge also demonstrates ignorance of a common practice among drug users: copping drugs for someone else for a small fee.
The people most commonly charged with drug-induced homicide, as attendees heard, are not drug “kingpins,” but rather friends and family members who purchased for the victim, or else low-level drug dealers who (in Philadelphia, at least) have no idea what compounds are in the $5 heroin bags they sell, let alone their potency. The same could be said of the runner who delivered those bags to the dealer.
Pursuing such a charge also demonstrates ignorance of a common practice among drug users: copping drugs for someone else for a small fee. In Philadelphia, where many middle-class users would gladly pay a fee to avoid the risk of arrest or worse, this hustle is so common that I’ve seen two men nearly come to blows over a beef involving a stolen “client.” Fortunately, DDRD charges are extremely rare under Philadelphia District Attorney Larry Krasner—although for a time, federal agencies were applying the charges in some cases in the city.
Muddling the issue even more, when states began aggressively pursuing these charges, many heroin users were unaware the drugs they were buying contained fentanyl; today, with few exceptions, users in Philadelphia seek out fentanyl. This largely negates the narrative of people being were duped into purchasing more dangerous drugs than they had sought.
For the NACDL and attendees at the conference, however, these philosophical musings would not offer much help in the courtroom. Instead, speakers and panelists offered insight into the lack of certainty in post-mortem toxicology. Almost 80 percent of opioid-involved deaths also involve other drugs, often benzodiazepines—raising the question of causation when both are present. Who’s to blame, the person who sold them the Xanax or person who sold them the heroin?
Pardon my cynicism but I think the answer is easy: whichever seller was unlucky enough to get caught.
Photo of Rep. Sarah Inamorato courtesy of Vital Strategies.