Bad Prosecutors: Charging Street Level Drug Sellers with Murder is an Exercise in Deception

The use of heroin is increasing nationwide. As use rates have climbed so has the number of heroin-related overdose deaths. No matter who you ask, it’s a problem that deserves attention.


Our attention should be on smart and effective public health solutions, not on ineffective and harmful relics from the war on drugs.

Former U.S. Attorney General Eric Holder recently called the rise in heroin-related overdose deaths an “urgent public health crisis.” The solution, even according to conservative organizations like the Centers for Disease Control and Prevention and the National Institute on Drug Abuse, is one based in the science of public health—we must increase access to substance abuse treatment services, ensure access to medication-assisted substance abuse treatment, and expand the use of naloxone, a life-saving drug that can reverse the effects of a heroin overdose.

None of these solutions involve holding street level drug sellers responsible for a user’s death. Yet some prosecutors—in Indiana, Ohio, Virginia, and New Jersey, for example—are choosing to devote their already scarce resources to charging these sellers with drug-induced homicide and punishing them with incredibly harsh, or even life, sentences. In doing so, prosecutors and legislators are running an exercise in deception.

Scholars generally agree that removing the average street level drug seller has little or no impact on drug distribution. Commonly referred to as “the replacement effect,” the drug market simply responds to the demand for drugs by replacing incarcerated drug sellers with new recruits. The prosecutors’ objectives—incapacitation and reduction of distribution—are largely nullified. The attention of prosecutors andlegislators should instead be on combating the problematic users who demand over 80 percent of the drugs used. Focusing on punitive supply side interdictions has proven to be nothing more than a game of whack a mole.

Prosecutors’ attention on street level sellers is further misguided when they ignore the fundamental realities of the average seller. The average person selling drugs struggles to make ends meet or to supplement their own drug use. In 2004, more than 60 percent of state prisoners serving sentences for a drug offense (possession, manufacturing, or sale) met drug dependence or abuse criteria. Another studysuggests that rather than being a cause of urban decline, selling drugs is often a direct response to that urban decline and the disappearance of a sustainable employment market.

Common sense also tells us that promoting homicide charges for drug sellers in heroin-related deaths does nothing but decrease public safety. We shouldn’t be surprised given the history of other objectionable practices by prosecutors—the overreliance on confidential informants and plea bargaining and withholding of exculpatory evidence, to name a few.

Prosecuting street level sellers, or the kid who sells on the corner, for homicide in overdose situations has a negligible impact on crime, access to heroin, and heroin-related deaths. Rather than feel good retributive politics, prosecutors and politicians should focus on what is proven to have a positive impact—defining this epidemic as a public health problem and improving access to effective treatment and education.

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