Prosecuting Dealers for Opioid Deaths Called ‘Bad Justice Policy’

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Photo courtesy US Department of Agriculture via Flickr

Prosecutors across the country have been expanding the use of stiff penalties targeted at drug dealers whose clients have died as a result of using their product, in efforts to combat the opioid crisis. Heavier sentences that in some cases are equated with a murder charge not only “send a message” to dealers but will prevent further drug-related deaths, supporters claim.

But a new study says such prosecutions for “drug-induced homicides” have the opposite effect.

They are not only “bad law and bad criminal justice policy,” but have exacerbated a public health crisis that has taken thousands of Americans lives, according to Leo Beletsky, Associate Professor of Law and Health Sciences of the Northeastern University School of Law.

The legal strategy actually dates to 1986, following the death of NBA player Len Bias of an overdose from cocaine provided by a friend. But since the opioid addiction emerged as what Beletsky describes as the “worst drug crisis in U.S. history” in 2000, more than half of the states now have specific statues facilitating enhanced sentences given for drug-induced homicides in the case of opioid deaths. Others are considering broadening them to include Fentanyl.

In a study posted online, Beletsky said such prosecutions amount to little more than “policy theater” and are only the most recent examples of the punitive approach that has long characterized America’s War on Drugs—an approach that he noted has largely failed to stem the trafficking of narcotics into the U.S. or address addiction problems.

drug policy

Leo Beletsky

“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,” Beletsky wrote.

In what he said was the first study of its kind, Beletsky examined data from 263 drug-induced homicide prosecutions between 2000 and 2016.

He found that although such prosecutions were ostensibly targeted at drug dealers, at least half of those charged were family members and 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 wrote.

Applying his dataset to what he said were “existing racially disparate patterns of drug law and felony murder enforcement,” he also found evidence indicating selective enforcement of the penalties that resulted “in gaping sentencing disparities between whites and people of color.”

Beletsky wrote that his findings only underlined the futility of punishment-oriented strategies as a tool for combating the opioid crisis.

Although there are now widely known and widely used antidotes such as naloxone which can resuscitate someone suffering an overdose if given in time, many family members or even bystanders are reluctant to call 911 for emergency help because they fear legal repercussions, even if they had no role in providing the drugs, according to Beletsky.

“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 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.”

And, he pointed out, the addition of drug-induced homicide prosecutions to the tools used by law enforcement can have tragic effects on those who were unwittingly responsible for a drug overdose death. He cited the case of Caleb Smith, a Williamsport, Pa., man who was charged in 2016 after giving his girlfriend what he thought was a stimulant but turned out to be fentanyl.

Facing a 20-year mandatory-minimum sentence, Smith committed suicide in 2017.

Beletsky argued that the “surge” in drug-induced homicide prosecutions only underlined the urgency of re-examining punishment-oriented drug policies with the aim of developing what he called a “population-based” health policy that emphasized addiction treatment and diversion.

“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 wrote. “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 U.S. jurisprudence, however.”

While similar punitive strategies such as curbs on prescriptions and suits against pharmaceutical companies for failure to monitor how their products are distributed have a role in reducing supply, they have nevertheless crowded out public health strategies that have been shown to work in limiting the impact of widespread opioid use, he wrote.

“The bottom line,” he wrote, “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.”

See also TCR Op Ed by Leo Beletsky and Elizabeth Ryan: The Wrong Path: Involuntary Treatment and the Opioid Crisis.

The full study can be downloaded here.

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