Blog Post

Charging Drug Sellers with Murder if Someone Dies from Overdose Will Ruin Lives, Save None

Kaitlyn Boecker

Over 47,000 people lost their lives to drug overdose in 2014 and overdose deaths continue to rise at a disturbing rate. Heroin deaths, in particular have increased 128% since 2013, and 350% since 2010.

A growing number of states are implementing harm reduction-centered approaches proven to reduce overdose fatalities. Lawmakers in some states, however, are turning to punitive, counter-productive measures in a misguided effort to combat the overdose crisis.

In New Hampshire, the state’s attorney general announced that individuals who sell drugs that result in the user dying will now face felony second-degree murder charges. The AG claims they have made this change “in hopes of deterring dealers from selling dangerous drugs, such as heroin.” Such tactics are not unprecedented, with federal and state prosecutors in Oregon, Texas, PennsylvaniaWest Virginia, Ohio, Illinois, North Carolina, Louisiana, and Wisconsin pursuing similar charges. Some states have had drug-induced homicide laws on the books for years, while others charge heroin-related deaths as reckless homicide or involuntary manslaughter.  Federal law has long allowed for federal prosecutors to seek increased penalties in drug delivery cases involving death.

Prosecutors hope harsh charges will deter those who sell drugs, and keep drugs away from those who use drugs. In reality, incarcerating the average street level drug seller has almost no impact on drug distribution, it does not reduce demand for drugs within the community, and new recruits simply fill the void. Such policies are retributive, not grounded in public health science.

It is more likely criminalization of overdose will result in negative unintended consequences that exacerbate the situation. For instance, establishing punitive overdose policies may reduce a bystander’s willingness to cooperate with law enforcement and emergency personnel, especially if the bystander sold to the person who is overdosing and is the only person who can call for help. Policies targeting sellers could inadvertently result in abandonment of overdose victims out of fear of prosecution.

These policies fundamentally misunderstand the dynamics of the average drug seller, treating people who use drugs and sellers as two distinct groups with different motives: drug sellers as sinister and people who use drugs as dupes. Overdoses are not caused by malice on the part of the drug seller. Overdoses are often the result of the circumstances in which a person is consuming, or unfamiliarity with a substance. In reality, the average person selling drugs struggles to make ends meet or sells drugs to supplement their own drug use. The line blurs even further when considering users who occasionally provide and use drugs with small groups of friends. Cases like those of Chelcie Schlem and Sean Harrington illustrate the folly of these prosecutorial labels.

Despite belief that street level sellers are adding fentanyl to heroin to cut costs, making a more potent drug that results in overdose, the DEA has found little evidence that fentanyl is added to heroin in the US. It is generally manufactured in labs in Mexico and mixed with heroin before shipment. Most people who sell or use heroin likely aren’t aware when fentanyl has been added.

As a nation, we have recognized we cannot arrest our way out of substance use, and it is widely accepted that those struggling with problematic drug use deserve treatment rather than incarceration. In order to reduce overdose-related deaths we must leave failed drug war policies behind and treat substance use as a health issue. Overdose-related homicide charges are a return to the outdated “tough on crime” rhetoric that inspired decades of destructive drug war policies that failed to reduce problematic substance use. Losing someone to overdose is a tragedy, and policies like drug-related homicide simply expand that tragedy.

Kaitlyn Boecker is a policy associate with the Drug Policy Alliance.

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Harm reduction