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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.
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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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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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