As the nation grapples with the deadliest drug crisis in its history -- more than 72,000 people died of drug overdoses last year, according to the Centers for Disease Control and Prevention -- prosecutors across the country have rushed to embrace the use of "drug-induced homicide" charges as a means of combating the problem. That means charging the people who sold the fatal dose -- or sometimes just the people who shared it -- with murder or manslaughter and sending them away to prison for lengthy terms.
Such prosecutions are "bad law and bad criminal justice policy" that have only worsened the opioid crisis that has taken tens of thousands of American lives, writes Leo Beletsky, associate professor of law and health sciences of the Northeastern University School of Law.
Beletsky notes that while the strategy dates back to 1986, in an atmosphere of moral panic set off by the death of NBA player Len Bias of an overdose from cocaine given to him by a friend, it has really taken off in recent years as the country lives through what he calls the "worst drug crisis in US history." Now, more than half the states have some form of drug-induced homicide law, while others are considering amending them to include fentanyl.
But the prosecutions amount to little more than "policy theater" rooted in the punitive approach long favored in the country's war on drugs, Beletsky argues. That is an unsuccessful approach that has largely failed to reduce drug use or stem the flow of drugs into the country, he notes.
Beletsky's study looked at data from 263 drug-induced homicide prosecutions between 2000 and 2016. One of the most striking findings was that, while such prosecutions are supposedly aimed at drug dealers, at least half of those charged were family members or partners.
"In many jurisdictions, it is enough to have simply shared a small amount of your drugs with the deceased to be prosecuted for homicide," he notes.
Another striking -- yet completely unsurprising -- finding is that when he applied his data to what he called "existing racially disparate patterns of drug law enforcement," he found evidence of racial differences in the application of drug-induced homicide laws as well. Such selective enforcement resulted in "gaping disparities between whites and people of color."
But the most bitter irony can be found in the impact of such laws on actual overdose deaths. Even though opioid overdose reversal drugs such as naloxone are now in wide use, many friends, fellow users, and family members are reluctant to call for emergency help because they fear the legal repercussions, even if they didn't provide the lethal drugs.
"Police involvement at overdose scenes may result in arrests on drug, parole violation, weapons, and other charges," wrote Beletsky. "It may also lead to loss of child custody, violation of community supervision conditions, and other legal consequences rooted in the pervasive stigmatization of substance use, but not directly linked to criminal law. Research suggests that fear of police contact and legal detriment is actually the single most important reason why people who witnessed overdoses do not seek timely emergency medical help," he concludes. "Aside from crowding out evidence-based interventions and investments, these prosecutions run at complete cross-purposes to efforts that encourage witnesses to summon lifesaving help during overdose events."
Rather than "tougher" policy responses to drug use such as the resort to drug-induced homicide charges, policymakers should be subjecting failed punishment-oriented policies to rigorous scrutiny while instead developing a "population-based" health policy emphasizing treatment and diversion from the criminal justice system, he suggested.
"A system that relies on the instrument of punishment to regulate the behavior of people affected by severe SUD (Substance Use Disorder) fundamentally misconstrues the nature of addiction," Beletsky writes. "The established scientific consensus predicts that individuals affected by addiction will substantially discount -- or totally disregard -- legal risks and threats of punishment as a matter of course. This scientific construct has yet to be translated into US jurisprudence, however."
"Drug-induced homicide prosecutions and other similar punitive approaches to the opioid crisis, such as curbing prescriptions and subjecting patients to drug testing regimes, have crowded out public health strategies that have been proven to work in limiting the deleterious impacts of widespread opioid use," he writes.
"The bottom line," Beletsky writes, "is that, when it comes to policies that hold the most empirical promise for addressing the overdose crisis, we know what to do; we just are not doing it."
