Why “Drug-Induced Homicide” Doesn’t Have to be Prosecuted

May 27, 2022

Over the past five years, five more states have passed drug-induced homicide (DIH) statutes, reflecting the country’s ever-increasing investment in criminalizing people who use drugs on the pretext of addressing the overdose crisis. But even though DIH is currently on the books in 25 states, it’s the prosecutors in those states who decide to actually pursue it.

“If somebody makes a baby bed that a baby gets hurt in, they’re liable,” Allen County, Ohio, Prosecutor Juergen Waldick told the Lima News. “Maybe not criminally but civilly liable. So why shouldn’t people be responsible if they sell other people drugs, and they die?”

Allen County has been prosecuting drug-induced homicide since 2017. Yet as every lawyer knows, the difference between civil liability and criminal guilt is extraordinary. Civil judgments are initiated by plaintiffs seeking redress; they’re about money. Criminal charges are usually brought by prosecutors.

Manufacturers in product liability suits tend to have a lot of money, and also tend to want to keep doing business. So there’s incentive to pay off judgments, and even if they lose the case there are still all kinds of ways to avoid paying. But businesses can’t legally incorporate for illegal purposes, like distributing state-banned drugs. People who sell drugs aren’t being held civilly liable; they’re being criminally prosecuted.

The practice is arbitrary, and prosecutors should be scrutinized for it.

Prosecutors, like Waldick, choose whether to pursue charges to the full extent of the law, or stop somewhere short of that. Prosecutors are also not supposed to charge homicide, or any other so-called crime, without believing it can be proved beyond a reasonable doubt.

But the reality is that many jurors, especially in more rural areas, are inclined to convict regardless of the strength of the evidence. Jurors are influenced by both politics and worldview. Rural areas, including Allen County, are more conservative, and conservatives are more likely to have a “lock ’em up” mentality. That pattern is increasingly true in DIH cases. Treating overdose like murder may well be good for prosecutors seeking votes in rural, conservative areas. But the practice is arbitrary, and prosecutors should be scrutinized for it.

Waldick went on to say that his office “focuses on drug suppliers and not those who call 911.” But prosecutors use a hodge-podge of non-specific charges, including involuntary manslaughter, to criminalize situations that in context appear very different from one another.

The evidence overwhelmingly demonstrates that prosecuting drug sellers for fatal overdose reduces neither overdose nor selling. It also misleads the broader public about the nature of drug sellers themselves, perpetuating the idea that sellers and users are separate categories of people, and the image of a “dealer” as a dangerous career criminal who supplied the deceased person with adulterated drugs because on purpose, when often it was someone using with a friend.



Photograph via Arizona Superior Court

Rory Fleming

Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School's Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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