Holding Co-Users Responsible for Fatal Drug Overdoses Is Draconian and Ineffectual
A new report from the Drug Policy Alliance shines a harsh spotlight on a strategy that some police, prosecutors and elected officials are embracing in response to the opioid overdose crisis—charging sellers with drug-induced homicide, which the evidence suggests is intensifying, rather than helping the problem.
The opioid overdose crisis is real enough—a record of more than 60,000 people died of drug overdoses last year, most of them from opioids—but claims that charging drug sellers with murder is an effective deterrent are unproven, according to the report, An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane.
Instead, such laws actually deter people not from selling drugs but from seeking life-saving medical assistance in case of overdose. That's because drug-induced homicide prosecutions typically don't target high-level kingpins, but zero in on the very people best positioned to actually save lives in the event of an overdose: family, friends and low-level drug sellers, often addicts themselves.
Like Amy Shemberger. In August 2014, she took a ride to score some heroin for herself and her boyfriend, Peter Kucinski. She snorted one bag on the way home and gave the other to Kucinski when she got home. Suffering from severe alcohol withdrawal, he needed the heroin to feel better. He snorted a $10 bag, then stopped breathing. Shemberger called 911, but it was too late. She lost her boyfriend of 18 years. Their 5-year-old son was later taken into custody by child protective services.
Two months later, Shemberger was charged with drug-induced homicide for sharing her score with her life partner. She's now serving seven years in state prison.
Amy Shemberger is not an outlier. Police and prosecutors routinely abuse their discretion by going after people best positioned to actually save the lives of overdose victims—their friends, family members, fellow drug users, and small-time drug sellers. The report offers several examples: In New Jersey, 25 of 32 drug-induced homicide prosecutions in the 2000s targeted friends of the victims who were not involved in significant drug sales. In Wisconsin, 90% of the most recent cases targeted friends or relatives of the victim. In Illinois, a study of these prosecutions found that prosecutors typically charged the last person known to be with the victim.
As with everything else in the war on drugs, it's worse if you're not white. Hampered by a felony record, when James Linder, 36, lost his job at a bakery, he resorted to selling small amounts of drugs, making enough money to get a haircut for his son and to help out his sister. But in January 2015, he sold three packets of heroin to Cody Hillier. Hillier's girlfriend, Danielle Barzyk, died of an overdose later that same day. Despite never even meeting Barzyk, Linder was charged with drug-induced homicide in her death. He was sentenced by an all-white jury in rural Illinois. Unlike Shemberger, he didn't get seven years; he got 28 years in prison.
Drug-induced homicide laws, originally passed in the depths of 1980s drug war excess, lay largely dormant until rising drug overdose numbers led police and prosecutors to revive them. Currently, 20 states (Delaware, Colorado, Florida, Illinois, Kansas, Louisiana, Michigan, Minnesota, New Hampshire, New Jersey, North Carolina, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Vermont, Washington, West Virginia, Wisconsin, and Wyoming) have drug-induced homicide laws on the books. Other states without such laws also manage to charge these people with the offense of drug delivery resulting in death under various felony-murder, depraved heart, or involuntary or voluntary manslaughter laws.
"This is a wasteful, punitive policy that compounds the tragedy of an overdose by locking up even more people in the name of the failing war on drugs," said Lindsay LaSalle, senior staff attorney at the Drug Policy Alliance and author of the report. "By placing the blame for an overdose death on the single person who supplied the drugs, all the structural factors that lead to addiction and overdose are ignored, as are the solutions that could actually make a difference. While there’s no evidence in support of the effectiveness of drug-induced homicide laws, the good news is that there are proven health and harm reduction interventions that can save lives."
Those include policies and practices such as 911 Good Samaritan laws, which protect people reporting drug overdoses from arrest; expanded access to the opioid overdose reversal drug naloxone (Narcan), expanded access to opioid-assisted treatment, and expansion of harm reduction programs such as supervised drug injection sites, where users can shoot up under medical supervision and be connected with social service agencies.
There is no national database of drug-induced homicide prosecutions, so the Drug Policy Alliance report relied on media mentions of such cases to chart their spread. It found 363 articles mentioning such cases in 2011, but by 2016, that number had jumped to 1,178, a 300% increase in just five years. And this without any evidence of their effectiveness in reducing drug use or sales or preventing overdose deaths.
The resort to drug-induced homicide charges varies from state to state. Midwestern states such as Wisconsin, Ohio, Illinois, and Minnesota have been the most aggressive in prosecuting drug-induced homicides, with northeastern states Pennsylvania, New Jersey, and New York and southern states Louisiana, North Carolina, and Tennessee rapidly expanding their use of these laws. And the move remains politically popular: This year alone, elected officials in at least 13 states (Connecticut, Idaho, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New York, Ohio, South Carolina, Tennessee, Virginia, and West Virginia) introduced bills to create new drug-induced homicide offenses or strengthen existing drug-induced homicide laws.
But the increased criminalization of people who use and sell drugs only exacerbates the very problem prosecutors are supposedly trying to address. It increases stigma, drives people away from needed care, and will likely result in the same racial disparities now synonymous with other drug war tactics.
"This is no time to ratchet up enforcement responses to addiction and overdose; we can’t afford to repeat the mistakes of the past," warned LaSalle. "Overdose deaths are skyrocketing and it could be your loved one who dies from a preventable drug overdose, simply because someone was too scared to call 911."