On May 25, the New York Times published an in-depth look at Drug Induced Homicide Laws (DIH), intended to punish people with sentences equivalent to those for manslaughter and murder for providing or purchasing drugs which resulted in an overdose death. Though states started enacting these laws in the 1980s, there has been a gradual increase in their application over the past 15 years. The current opioid crisis has created a trend of legislators and prosecutors passing and utilizing these laws as they search for ways to deter opioid use. After reading the article, I conducted an informal survey on a small group of my friends, family, and significant other. I explained the premise of the laws, which now exist in at least 36 states. Those around me saw the logic, if they were used to punish kingpins of drug trafficking rings. But as the New York Times article pointed out, the sad reality is that these laws are not being used against kingpins. Instead, they are being used to target the family members, friends, and significant others of those who have died from overdoses. I posed the question, “What if I overdosed one Friday night and you got sent to jail for murder?”
The impact of arrest and imprisonment as deterrence on drug users’ behaviors is unclear. Those in need of treatment often find themselves locked out of services by virtue of being charged with a serious or violent crime. As such, DIH laws seem to be deterring lifesaving behaviors, like calling for medical help for an individual who has taken drugs out of fear that they may be prosecuted under DIH.
This is especially evident in the work of the Justice Programs Office (JPO) as a training and technical assistance provider for juvenile drug treatment courts (JDTCs). As a student assistant on the JDTC project, I have seen JPO staff encounter courts rules, local ordinances, and state statutes which prevent children charged with violent crimes from accessing the therapeutic jurisprudence these problem-solving courts offer. These rules are presumably put in place for the protection of the JDTC participants, but it is clear that under DIH laws, a young person with a substance use disorder (SUD) could be charged with a violent felony, potentially restricting access to treatment for the underlying problem, the substance abuse disorder.
As part of my work for JPO this summer, I had the opportunity to go on a site visit with JPO staff to a JDTC in Florida last week. While there we talked to practitioners about a trend in drug use among the young people in their community, which involves using a cocktail of marijuana and Xanax. This cocktail isn’t lethal, but as young people are more prone to try out new combinations or buy from different dealers, the risk of a cocktail causing a fatal overdose increases. A 17-year-old who added too much Xanax to his cocaine powder and shared it with his friend doesn’t seem to me to be the type of cold or violent person one would think the DIH penalties were meant to apply to.
If DIH prosecution does occur, individuals are being charged with anything ranging from manslaughter to murder. In some iterations of the DIH laws, the prosecutor does not have to prove intent to kill at trial. In fact, they do not even have to show that the accused was present when the deceased took the drugs. In some states, all that is required is showing that the accused illegally manufactured, sold, distributed, or delivered the drugs to the deceased. While families and communities have a right to expect a response to the death of a loved one, prosecutors appear to be using these enhanced sanctions in an arbitrary way, which doesn’t stand much chance of healing a broken family. The current application of these punitive laws fails to take into account either the possibility of an underlying SUD, or the reality that in many cases one individual survived, and another did not has far more to do with chance than malicious intent. The people DIH laws would be most appropriately applied to, drug lords and trafficking kingpins who are in fact arguably responsible for overdose deaths, are not the ones most likely to fall prey to DIH prosecutions. Kingpins don’t sell or deliver drugs. As a result, low-level dealers and unlucky users are far more likely to be prosecuted merely as a product of circumstance, rather than actual culpability for homicide. Tearing down those barriers will not be achieved by locking up individuals with SUDs who would benefit from treatment.
The punitive nature of these laws fails to address the underlying public health concern of the opioid crisis. The individuals accused in many of these cases require rehabilitative treatment and services, rather than prison time. Further, these enhanced charges could exclude children from potentially lifesaving programs like a juvenile drug treatment court. I would not want those closest to me sentenced to incarceration for an activity we both took part in; a sentiment shared by many individuals who have been affected by these laws.
Karina Rivero is a student assistant with the Justice Programs Office working on the Juvenile Drug Treatment Courts Training & Technical Assistance Project
Bewley-Taylor, D., Hallam, C., & Allen, R. (2009). The Incarceration of Drug Offenders: An Overview Beckley Foundation/International Centre for Prison Studies.
Bureau of Justice Statistics. (2002). Drug law violations. Washington, DC.
Friedman, Samuel R., et al. “Relationships of deterrence and law enforcement to drug-related harms among drug injectors in US metropolitan areas.” Aids 20.1 (2006): 93-99.