A national advocacy group on Tuesday released a report surveying the use of drug-induced homicide charges for overdose deaths across the U.S., arguing that heightened punishments are not only unsuccessful in curtailing drug use and drug sales, but are also unjust and inhumane.
In response to the growing epidemic of drug deaths in the U.S., and particularly the wave of overdoses caused by illicit fentanyl production, prosecutors around the country have intensified their pursuit of homicide charges–hoping to send a clear warning to drug dealers.
But authors of the Drug Policy Alliance (DPA) report argue that there is “not a shred of evidence” to indicate that these charges result in fewer overdose deaths. “In fact, death tolls continue to climb across the country, even in the states and counties most aggressively prosecuting drug-induced homicide cases.”
“Drug induced homicide” laws were first adopted by the federal government and several states during the 1980s-era war on drugs. However, they’ve remained largely unused until recent years.
In the absence of comprehensive data on the number of people prosecuted under these laws, the study authors analyzed media reports around the country from 2011 to 2016. During that time, the number of annual press reports on drug-induced homicide charges and prosecutions rose from 363 to 1,178.
Based on press mentions, DPA found that “since 2011, midwestern states 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 since 2013.”
Presently, there are 20 states with drug induced homicide laws on the books, while prosecutors in other states pursue heightened punishment via felony murder, depraved heart, or voluntary/ involuntary manslaughter charges. In 2017 alone, specific drug-induced homicide legislation has been introduced in 13 different states.
While some states such as Vermont and New Jersey have adopted these statutes in order to go after drug kingpins, others states like Michigan have the intention of discouraging low-level dealers, as well as friends and acquaintances of those who die from overdoses. In most states, however, the legislative intention remains vague.
“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,” write the authors.
But there is no evidence to suggest that heightened punishment works, according to the report, and plenty of evidence suggesting otherwise. Take the case of Hamilton County, Ohio: in 2015, ten full-time police inspectors investigated 53 cases of potential drug-induced homicide–but the following year still brought an increase of overdose deaths by 100, according to DPA data.
“Drug war proponents have been repeating the deterrence mantra for over 40 years, and yet drugs are cheaper, stronger, and more widely available than at any other time in US history.”
Uneven application of the law, and other harms
Comprehensive data are not available, but evidence from various jurisdictions shows a potentially biased application of drug-induced homicide laws that more often target black and Latino defendants, say the authors.
For example: “the district attorney of one predominantly white suburban county in Illinois with a black population of only 1.6% has charged four black men from Chicago with drug-induced homicide (making up 35% of the total prosecutions), and one prosecutor in Minnesota appears to have charged predominantly black people with drug-induced homicide.”
The authors go on to argue that people are less likely to call 911 for help if they fear criminal prosecution.
Opponents of drug-induced homicide statutes argue that the laws are too vague: they can apply to instances when drugs are only a contributing factor in cause of death, and they also lack clarity about the mental state of the defendant required to incur criminal liability. (See People v. Boand, for example).
Those who challenge the constitutionality of these laws have failed, say the authors, not because their arguments are without merit, but because “the doctrine of constitutional avoidance largely shields these statues from judicial intervention.”
This summary was prepared by Victoria Mckenzie, deputy editor of The Crime Report. Readers’ comments are welcome.