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Drug-Induced Homicide Laws:

A Misguided Response to
Overdose Deaths
April
2016

Background
Overdose death rates in the United States have more
than doubled over the past decade, surpassing motor
vehicle accidents as the leading cause of injury-related
death in the country.1 According to the Centers for
Disease Control and Prevention, 47,055 people an
average of 128 people a day died from drug
overdoses in 2014.2 More than 18,000 overdose
deaths in 2014 involved prescription opioids, such as
hydrocodone (Vicodin) and oxycodone
(OxyContin), while an additional 10,000 fatalities
were attributed to heroin.3 Synthetic opioids, such as
fentanyl, claimed nearly 5,550 lives.4
Policymakers are understandably alarmed at the
overdose crisis with which they are now confronted.
The public is calling for help and solutions. Elected
officials unfamiliar with, or resistant to, harm reduction,
prevention, and treatment interventions, however, are
introducing punitive, counter-productive legislative
measures in a misguided effort to reduce overdose
fatalities. In particular, some states, including New
York (AB 8616), Ohio (HB 270), and Virginia (HB 615,
SB 66) are considering bills that would allow
prosecutors to charge people who provide the drugs
that ultimately contribute to an overdose death with
homicide.
More than 20 other states already have laws allowing
similar charges.5 Known as drug-induced homicide,
these laws range from capital one offenses that
impose the death penalty or a life sentence to lesser
prison sentence terms under various felony-murder,
depraved heart, or involuntary or voluntary
manslaughter statutes.6 Though many of these laws
have sat idle on the books since their enactment
decades ago during the height of the war on drugs,
prosecutors are now reinvigorating them with a rash of
drug-induced homicide charges in the wake of
increasing overdose deaths.

There is no existing evidence, however, that indicates


that further criminalizing opioid sales by allowing a
charge of murder or manslaughter will achieve the goal
of reducing overdose fatalities. Rather, drug-induced
homicide laws are actually more likely to harm the very
people they are seeking to protect, and to further
reduce access to the critical services that do have the
potential to save lives.

Drug-Induced Homicide Laws Will Not Curb


Overdoses
Drug-Induced Homicide Undermines the
Rationale Behind 911 Good Samaritan Laws
The importance and efficacy of providing limited
criminal immunity to those who seek medical
assistance in the event of an overdose is evidenced by
the 35 states that have passed some form of Good
Samaritan law. The most common reason people cite
for not calling 911 is fear of police involvement.7 It is
accordingly widely recognized that reducing barriers to
calling 911 has the potential to save victims of
overdose from severe injury and death.8
Drug-induced homicide laws, on the other hand,
discourage people from seeking help for fear of
prosecution for manslaughter or murder. In Illinois, in
the majority of drug-induced homicide cases there was
an opportunity to save the overdose victim but the
defendants chose inaction because of fear of
prosecution.9 This is unsurprising most states do not
provide immunity from drug-induced homicide even if
they have a Good Samaritan law, or, in the case of
new legislation, are introducing harsh new criminal
penalties that undermine Good Samaritan laws already
in place. Rather than reducing the potential for
mortality, as supposedly intended, drug-induced
homicide laws will only result in additional overdose
deaths due to fear of prosecution.


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Drug-Induced Homicide Will Not Deter Drug


Selling or Reduce Future Overdoses
Presumably, the intent of punishing people who supply
drugs with incredibly harsh sentences like murder or
manslaughter is to deter others from also supplying
drugs that could lead to an overdose. But, it is widely
understood, both in the general population as well as
the academic and scientific communities, that
increased arrests or increased severity of criminal
punishment for drug-related offenses do not, in fact,
result in less use (demand) or sales (supply).10 In
other words, punitive sentences for drug offenses have
no deterrent effect.
The supply chain for controlled substances is not
ameliorated because a single seller is incarcerated,
whether for drug-induced homicide or otherwise.
Supply follows demand; not the other way around.
Indeed, numerous studies have found that
incarceration of drug dealers simply results in a
replacement effect, meaning that the market
responds to the demand for drugs by replacing drug
sellers sent to prison with either new recruits or by the
increased drug selling of dealers already in the
market.11 One such study concluded that the main
effect of imprisoning drug sellers is merely to open the
market for another seller.12
Drug-induced homicide laws, then, might fulfill an
instinct for retribution, but they do nothing to reduce
demand and necessarily implicate additional people in
sustaining the supply chain that fulfills continuing
demand. Neither of these approaches does anything
to prevent future deadly drug overdoses.

Drug-Induced Homicide Targets the Wrong


Point of Intervention
Drug-induced homicide laws assume that the seller
can play some role in reducing overdose deaths
presumably by not supplying the drug in the first place.
But, as already noted, as long as the demand exists,
there will be supply to meet it. There are a host of
factors that contribute to an overdose death, including
tolerance, poly-drug use, circumstances of
consumption, and familiarity with the substance none
of which can be controlled by the person who supplied
the drugs. Indeed, 77% of prescription opioid
overdose deaths and 67% of heroin overdose deaths
are the result of mixing opioids with other drugs or
alcohol.13 As a result, cases of drug-induced homicide

are difficult to prove and win, primarily because of


questions of intent (or, rather, lack thereof) and
causation, and therefore require a significant
outpouring of legal and other resources that could be
better utilized. Were the resources focused on a
different intervention point, such as education on the
dangers of mixing substances or reducing demand, for
example, the chances of reducing overdose death
would correspondingly improve.

Drug-Induced Homicide Perpetuates the


Harms of Criminalization
Drug-Induced Homicide Punishes Users
Despite the Intent to Punish Sellers
Many of the drug-induced homicide laws already in
existence as well as those being proposed as new
legislation are touted as intended to punish so-called
professional drug sellers who profit from their user
clients addictions. But, the distinction between seller
and user is artificial. Though data evaluating the
drug use history of people who sell drugs is scant, a
2004 Bureau of Justice report found that an
astonishing 70% of people incarcerated for drug
trafficking in state prison used drugs themselves in the
month prior to the offense.14 It is widely understood
among experts who have studied drug markets that
many sellers are people who are addicted and selling
to support their own drug use. Moreover, the druginduced homicide laws are often drafted so broadly
that they, in many cases, encompass drug delivery or
aiding and abetting drug use (even if between friends
or people who are using drugs together).15 As a result,
more often than not, the people being punished are the
very people that the drug-induced homicide laws are
actually intended to protect people who are at risk of
death due to a substance use disorder.
Drug-Induced Homicide Laws Foster Poor
Prosecutorial Discretion
New Jerseys law proves illustrative. There, the
legislature specifically intended that the law be applied
to upper echelon drug dealers or kingpins in the
organized drug trade.16 In the majority of cases,
however, the law has been used to prosecute minors
with no record or evidence of prior drug dealing, family
members who engaged in drug use recreationally,
and small time users, whom the legislature stated
should be rehabilitated, not incapacitated.17 In fact,
out of the 32 drug-induced homicide prosecutions


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identified by the New Jersey Law Journal in the early


2000s, 25 involved prosecutions of friends of the
decedent who did not deal drugs in any significant
manner.18 Accordingly, people who use drugs and are
in the most desperate need of services are, instead,
facing significant amounts of time behind bars as a
result of their addiction.
Many of the drug-induced homicide cases recently
prosecuted have involved defendants that have sold
some form of fentanyl, a synthetic, rapid-acting opiate
analgesic often added to heroin to increase its
potency.19 Fentanyl has been widely reported in the
media as one reason overdose fatalities are
increasing.20 However, in the vast majority of cases,
street-level sellers who are supplying heroin likely do
not know it has had fentanyl added to it. Rather,
fentanyl is generally manufactured in labs in Mexico
and mixed with heroin before shipment. Even though
the Drug Enforcement Administration has confirmed
that they have found little evidence that fentanyl is
added to heroin in the United States,21 low-level
sellers who are unaware of the makeup of their
product and its potency, and who are likely users
themselves, have increasingly faced murder and
manslaughter chargers rather than being offered the
assistance and treatment necessary to move beyond
their addiction and their need to support it through
selling opioids.

Drug-Induced Homicide Reduces Access to


Needed Services
Rather than diminishing the harms of drug misuse,
criminalizing people who sell and use drugs amplifies
the risk of fatal overdoses and diseases, increases
stigma and marginalization, and drives people away
from needed treatment, health, and harm reduction
services.22 Reducing the role of the criminal justice
system is therefore critical to ensuring that people who
use drugs are able to access vital treatment and harm
reduction services.

Effective Interventions to Decrease Overdose


Exist
There is no evidence that drug-induced homicide
charges are effective at reducing overdose deaths or
curtailing the use or sale of controlled substances. On
the other hand, proven strategies are available to
reduce the harms associated with drug misuse, treat
dependence and addiction, improve immediate
overdose responses, enhance public safety, and
prevent fatalities..
These strategies include expanding access to the lifesaving medicine naloxone and its associated training;
improving fact-based drug education for young people
that includes an overdose prevention and response
component; enacting legal protections that encourage
people to call for help for overdose victims; training
people how to prevent, recognize and respond to an
overdose; increasing access to medication-assisted
treatment, including methadone and buprenorphine;
and implementing safe injection facilities.
For more information on fighting overdose and harm
reduction strategies, please visit:
www.drugpolicy.org/drug-overdose and
www.drugpolicy.org/harm-reduction.


1 Rose A. Rudd et al., Increases in Drug and Opioid
Overdose DeathsUnited States, 20002014, Morbidity and
Mortality Weekly Report 64, No. 50-51 (2016).
2 Id.
3 Id. (a certain number of overdose deaths involve both
prescription opioids and heroinin 2013, it was 1,342).
4 Id.
5 Alaska (Alaska Stat. 11.41.120(a)(3)); Colorado (Colo.
Rev. Stat. 18-3-102(e)); Florida (Fla. Stat.
782.04(1)(a)(3)-(4)); Illinois (720 Ill. Comp. Stat. 5/9-3.3);
Kentucky (Ky. Rev. Stat. Ann. 507.050, Lofthouse v. Com.,
13 S.W.3d 236, 238 (Ky. 2000) (guilt of criminal homicide for
furnishing controlled substances to one who subsequently
dies from their ingestion depends upon proof)); Louisiana (La.
Rev. Stat. Ann. 14:30.1(3)); Massachusetts (Mass. Gen.
Laws Ann. Ch. 265 13, Commonwealth v. Catalina, 407
Mass. 779, 791, 556 N.E.2d 973 (1990) (person who
furnishes drug to another, who voluntarily consumes it and
dies as a result, may be liable for manslaughter because
consumption of the drug was a foreseeable consequence of
his actions); Michigan (Mich. Comp. Laws Ann. 750.317a);
Minnesota (Minn. Stat. 609.195(b)); Nevada (N.R.S.
200.070, Sheriff, Clark Cty. v. Morris, 99 Nev. 109, 111, 659
P.2d 852, 854 (1983) (in context of unlawful sale of controlled
substances resulting in death, second-degree felony-murder
rule may be premised on either felonious intent provision or
unlawful act provision of involuntary manslaughter statute));
New Hampshire (N.H. Rev. Stat. Ann. 318-B:26(IX)); New


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Jersey (N.J. STAT. ANN. 2C:35-9); North Carolina (N.C.


Gen. Stat. Ann. 14-17(b)(2)); Pennsylvania (18 Pa. Cons.
Stat. Ann. 2506); Rhode Island (R.I. Gen. Laws 11-23-6)
(only applies to drug delivery to a minor); Tennessee (Tenn.
Code Ann. 39-13-210(a)(2)); Vermont (Vt. Stat. Ann. tit. 18,
4250); Washington (Wash. Rev. Code Ann. 69.50.415);
West Virginia (W. Va. Code Ann. 61-2-1, State v. Jenkins,
729 S.E.2d 250, 229 (W.Va. 2012) (death resulting from an
overdose of a controlled substance and occurring in the
commission of or attempt to commit a felony offense of
manufacturing or delivering such controlled substance,
subjects the manufacturer or deliverer of the controlled
substance to the felony murder rule); Wisconsin (Wis. Stat.
940.02(2)(a)); Wyoming (Wyo. Stat. Ann. 6-2-108).
6 See Thomas N. Osran, Illinois Drug Induced Homicide
Statute: A Tough State Just Got Tougher, 9 N. Ill. U. L. Rev.
537, 537-38 (1988-1989).
7 See, e.g., Peter J. Davidson et al., Witnessing HeroinRelated Overdoses: The Experiences of Young Injectors in
San Francisco, 12 Addiction 97 (2002); K. C. Ochoa et al.,
Overdosing Among Young Injection Drug Users In San
Francisco, 3 Addict Behav 26 (2001); Robin A. Pollini et al.,
Response to Overdose Among Injection Drug Users, 3
American Journal of Preventive Medicine 31 (2006); M. Tracy
et al., Circumstances of Witnessed Drug Overdose in New
York City: Implications for Intervention, 2 Drug Alcohol
Depend 79 (2005).
8 C.J. Banta-Green CJ et al., Washingtons 911 Good
Samaritan Drug Overdose Law - Initial Evaluation Results,
Alcohol & Drug Abuse Institute, University of Washington,
2011, available at http://adai.uw.edu/pubs/infobriefs/ADAI-IB2011-05.pdf (initial results from an evaluation of Washington
States Good Samaritan law, adopted in 2010, found that 88
percent of people who use opioids said they would be more
likely, and less afraid, to call 911 in the event of a future
overdose after learning about the law).
9 Millie Joy Humphrey, Dead on Arrival: Illinois Drug-Induced
Homicide Statute, 14. T.M. Cooley J. Prac. & Clinical L. 277,
287-288 (2013).
10 See, e.g., Donald Green & Daniel Winik, Using Random
Judge Assignments to Estimate the Effects of Incarceration
and Probation on Recidivism Among Drug Offenders, 48(2)
Criminology 357, 357387 (May 2010) (study found that
variations in prison and probation time have no detectable
effect on rates of re-arrest and suggests that, at least among
those facing drug-related charges, incarceration and
supervision seem not to deter subsequent criminal behavior);
Samuel R. Friedman et al., Drug Arrests and Injection Drug
Deterrence, 101(2) American Journal of Public Health 344,
347 (2011) (Changes in hard drug arrest rates did not predict
changes in [injection drug use] population rates. These
results are inconsistent with criminal deterrence theory and
raise questions about whether arresting people for hard drug
use contributes to public health.); Valerie Wright, Deterrence
in Criminal Justice Evaluating Certainty vs. Severity of
Punishment, The Sentencing Project (November 2010)
(Existing evidence does not support any significant public
safety benefit of the practice of increasing the severity of
sentences by imposing longer prison terms. In fact, research
findings imply that increasingly lengthy prison terms are
counterproductive. Overall, the evidence indicates that the

deterrent effect of lengthy prison sentences would not be


substantially diminished if punishments were reduced from
their current levels.)
11 Roger K. Przybylski, Correctional and Sentencing Reform
for Drug Offenders: Research Findings on Selected Key
Issues (September 2009), available at
http://www.ccjrc.org/pdf/Correctional_and_Sentencing_Refor
m_for_Drug_Offenders.pdf.
12 A.M. Piehl, B. Useem, and J. Dilulio, Jr., Right-Sizing
Justice: A Cost Benefit Analysis of Imprisonment in Three
States, Center for Civic Innovation at the Manhattan Institute,
No. 8, New York, NY (1999).
13 The Polydrug Poisoning Epidemic: Drug Mixing and Opioid
Overdose, CDC Wonder Data, Presentation given at the DPA
conference, available at
http://www.hamsnetwork.org/polydrug.pdf.
14 Bureau of Justice, Drug Use and Dependence, State and
Federal Prisoners, 2004, available at
http://www.bjs.gov/content/pub/pdf/dudsfp04.pdf.
15 Millie Joy Humphrey, Dead on Arrival: Illinois DrugInduced Homicide Statute, 14. T.M. Cooley J. Prac. & Clinical
L. 277, 279-281 (2013).
16 N.J. Stat. Ann. 2C:35-1; see also James H. Knight, The
First Hit's Free ... or Is It? Criminal Liability for Drug-Induced
Death in New Jersey, 34 Seton Hall L. Rev. 1327, 1330
(2004).
17 James H. Knight, The First Hit's Free ... or Is It? Criminal
Liability for Drug-Induced Death in New Jersey, 34 Seton Hall
L. Rev. 1327, 1332 (2004).
18 Jim Edwards, Making Friends Into Felons, N.J. LAW J.,
Sept. 9, 2002, at 1.
19 See, e.g., Megan Kennedy, Dayton Men Federally
Charged In Dealing Drugs To Users Who Died As Result,
2News WNDT, last modified January 5, 2016, available at
http://wdtn.com/2016/01/05/dayton-men-federally-charged-indealing-drugs-to-users-who-died-as-result/; Heather Yakin,
Sullivan County Man Charged With Distribution of Heroin and
Fentanyl Causing a Death, Times Hearlad-Record, last
modified December 18,2015, available at
http://www.recordonline.com/article/20151218/NEWS/151219
396; James O'Malley, Philly Man to Serve Up to 25 Years in
Buckingham Teen's OD Death, The Intelligencer, last
modified December 18, 2015, available at
http://www.theintell.com/news/local/philly-man-to-serve-up-toyears-in-buckingham-teen/article_e8803c6c-a5d9-11e5-a1ebbb32659a37c4.html;
20 Donna Leinwand Leger, DEA: Deaths From FentanylLaced Heroin Surging, USA Today, last modified March 18,
2015, available at
http://www.usatoday.com/story/news/2015/03/18/surge-inoverdose-deaths-from-fentanyl/24957967/; Fentanyl-Related
Heroin Overdose Deaths Concern Baltimore Health Officials,
WBAL TV 11, last modified July 6, 2015, available at
http://www.wbaltv.com/news/baltimore-health-officialsconcerned-about-fentanylrelated-overdose-deaths/34012466;
Surge in Fentanyl Overdose Deaths, National Institute on
Drug Abuse, last modified July 9, 2015, available at
http://www.drugabuse.gov/emerging-trends/surge-in-fentanyloverdose-deaths; Robin Erb, Fentanyl Faulted in Dozens of
Metro Detroit Deaths, Detroit Free Press, April 14, 2015,
available at


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http://www.freep.com/story/news/health/2015/04/13/fentanylfaulted-dozens-metro-detroit-deaths/25738267/; Alan
Johnson, Ohio Sees Alarming Jump in Drug Overdose
Deaths, The Columbus Dispatch, last modified September 25,
2015, available at
http://www.dispatch.com/content/stories/local/2015/09/24/ove
rdose-deaths.html; Donna Leinwand Leger, DEA: Deaths
From Fentanyl-Laced Heroin Surging, USA Today, last
modified March 18, 2015, available at
http://www.usatoday.com/story/news/2015/03/18/surge-inoverdose-deaths-from-fentanyl/24957967/.
21 Brian MacQuarrie, DEA Details Path of Deadly Heroin
Blend to N.E., Boston Globe, last modified June 29, 2014,
available at
https://www.bostonglobe.com/metro/2014/06/28/fentanyllaced-heroin-makes-journey-new-england-that-startscolombia-and-mexico-deasays/hVHvjvBE9cvV9lkKLVR3cN/story.html.
22 See, e.g., Samuel R. Friedman et al., Relationships of
Deterrence and Law Enforcement to Drug-Related Harms
Among Drug Injectors in US Metropolitan Areas, 20(1) AIDS
93, 93-99 (2006); Caitlin Elizabeth Hughes and Alex Stevens,
What Can We Learn from the Portuguese Decriminalization of
Illicit Drugs?, 6 British Journal of Criminology 50 (2010).


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