A woman who bought heroin with a pair of friends, one of whom shortly afterward suffered a fatal overdose on the drug, is not a murderer, at least according to the US 3^rd Circuit Court of Appeals. That was the June 1 ruling in US v. Semler, a case that may not set binding precedent, but does send a signal to the prosecutors and the judiciary that the federal courts do not want to see a federal law aimed at so-called drug kingpins applied to mere drug users.

[image:1 align:left]As described in the decision, the case began when two heroin-addicted Philadelphia women, Emma Semler and her old drug rehab buddy Jennifer Werstler, went to score heroin together at Wertsler's request. They were joined by Semler's sister Sarah, who drove them to the West Philadelphia locale where they bought their heroin. It is unclear who actually purchased and then shared the heroin. The trio then shot up in the restroom of a nearby KFC restaurant. Werstler began to show signs of overdosing, and the Semler sisters "attempted to revive Werstler by splashing cold water on her, then left the bathroom and called their mother for a ride home. They did not call 911 or alert anyone to Werstler's condition."

Werstler was later discovered by a KFC employee, who called 911, but EMTs arrived too late to save her and she was pronounced dead. Her official cause of death was "adverse reaction to heroin."

Semler was then indicted by a federal grand jury in the Eastern District of Pennsylvania with "distribution of heroin resulting in death," punishable by a 20-year mandatory minimum prison sentence. As an added bonus, she was also charged with doing so within 1,000 feet of a school, as well as aiding and abetting on both counts. She was found guilty at trial and sentenced to 21 years in prison.

Semler appealed, arguing that friends sharing jointly procured drugs did not qualify as drug distribution and that the district court had erred in refusing to allow a jury instruction to that effect, as well as erring in failing to instruct the jury that there had to be a "proximate cause" for it to convict.

Scott Burris, JD, is a professor of both law and public health at Temple University and directs Temple's Center for Public Health Law Research. He is also Semler's appellate counsel and coauthor of an amicus curiae brief supporting Semler, which nicely laid out the issues at play.

"This case presents the Court with an opportunity to determine the proper scope of the Drug Distribution Resulting in Death (DDRD) sentencing enhancement provision," the abstract explains. "The provision, its parent statute, and the totality of modern federal law and policy to stem the overdose crisis are intended to target major drug traffickers. Research suggests that DDRD prosecutions routinely pervert this intent, indiscriminately deploying DDRD and similar provisions to target end consumers of illicit drugs affected by addiction. Rather than deterring drug trafficking, such prosecutions deter help-seeking during overdose events and interfere with overdose prevention measures. This cuts at cross purposes to overdose crisis response, leading to more, not fewer deaths."

The 3^rd District Court of Appeals agreed, vacating Semler's conviction and sending her case back for retrial using proper legal instructions for jurors. "We hold that the definition of 'distribute' under the Controlled Substances Act does not cover individuals who jointly and simultaneously acquire the possession of a small amount of a controlled substance solely for their personal use," wrote Judge Jane Richard Roth.

It was a victory, if not a complete exoneration, for Emma Semler and any other drug user federal prosecutors in the 3^rd Circuit might have been thinking about charging under that statute. Hopefully it also serves as a distant early warning signal for states that have passed drug induced homicide laws, as well as for state-level prosecutors, who are zealously embracing them to convict low-level drug users as murderers.

The Health in Justice Action Lab at Northeastern University School of Law reported that the number of states with such laws jumped from 15 to 25 in from 2009 to 2019, while the number of drug induced homicide prosecutions hovered at near zero from the 1970s until the early 2000s. Then, as overdose deaths jumped, so did prosecutions, rising to 100 per year by 2011 before skyrocketing to nearly 700 per year by 2018.

In a 2019 Utah Law Review article, Northeastern law professor and faculty director of the Health in Justice Action lab faculty adviser Leo Beletsky found while the laws are ostensibly aimed at drug dealers, "half of those charged with drug induced homicide were not, in fact, 'dealers' in the traditional sense, but friends and relatives of the deceased." He also found that in cases that involved a traditional "drug dealer," half of those prosecuted were black or brown people who sold drugs to whites -- a fact he noted does not fit the demographics of the United States or of drug dealers.

"In view of that context," he wrote, "these findings suggest that drug-induced homicide charges are being selectively and disproportionately deployed to target people of color. This disparate application can further reinforce already dire racial disparities, particularly in the enforcement of drug laws and the length of sentencing for drug-related crimes."

And, as the Drug Policy Alliance (DPA) pointed out in its 2017 report, An Overdose Death is Not a Murder: Why Drug Induced Homicide Laws Are Ineffective and Inhumane, those laws don't work to reduce overdoses: "Prosecutors and legislators who champion renewed drug induced homicide enforcement couch the use of this punitive measure, either naively or disingenuously, as necessary to curb increasing rates of drug overdose deaths. But there is not a shred of evidence that these laws are effective at reducing overdose fatalities. In fact, death tolls continue to climb across the country, even in the states and counties most aggressively prosecuting drug-induced homicide cases."

"The Semler case is one more example of how the Drug War has warped our legal system and led to mass incarceration," DPA senior staff attorney Grey Gardner told the Chronicle in an email exchange. "Prosecutors twisted the law to criminalize this young woman and subject her to a more than 20-year sentence after several friends bought drugs to use together and one suffered a tragic fatal overdose. Urging the jury to convict one of them of drug distribution when each of these users were suffering from substance use disorder and using together was not only overreaching, it highlights the arbitrary nature of our drug laws."

It is also counterproductive, he added: "This prosecution and those like it do nothing to make people safer, but instead put people in greater danger. By elevating the threat of prosecution, they make it less likely that people close to an overdose victim will call for help," he pointed out.

"Thankfully in this case the Court of Appeals rejected the prosecution's overbroad definition of distribution, but what's clear is that we need an entirely new approach," said DPA's Gardner. "Instead of the failed War on Drugs, we need to stop turning to the criminal legal system and spending billions on these ineffective policing strategies. Instead we need better approaches -- such as investments in drug checking, overdose prevention centers, and expanded access to naloxone -- to protect those who are experiencing addiction and are at the greatest risk."

"The court seemed sympathetic to the view that criminal law is not the best way to get at substance use disorder and the behavior of people coping with it," Burris told the Chronicle in an email exchange.

The appeals court labeled its decision as non-precedential, meaning it is not binding on federal district courts in its region, but it still may have a broader impact in the federal courts, Burris explained.

"I think her lawyers are going to ask the court to reconsider that," he said. "It is at least what we call 'persuasive authority' in that its reasoning may be adopted voluntarily by other courts."

As for impact on state and local prosecutions, not so much, he added.

"It has no impact other than as persuasive authority," Burris said. "The state attorney general and local district attorneys pursuing these cases seem to think they are sensible and just, and they are hard to shake," he confessed.

"The overdose crisis is just one symptom of the fundamental disease of inequality and inequity in our country," was Burris's bottom line. "Getting at that root cause requires a sea change in policy such that government at all levels -- and the people who elect the government -- commit to ensuring the basics of decent life to everyone: good work, good housing, good education, good transportation, and a place of respect in the community. In this the 'deaths of despair' idea seems to be to get the problem just right. Of course, short of that, there are many things to do: stop criminalizing drug use; create safe injection sites everywhere they are needed; eliminate regulations that make methadone and buprenorphine harder to get than the drugs whose use they are meant to reduce."