Increasingly, prosecutors are treating accidental overdoses as homicides and charging the people who provided the drugs with manslaughter or murder. “Homicide-by-overdose” laws, which have been enacted by the federal government and 25 states, date back to the 1980s. Until recently, prosecutions were relatively rare. But they’ve soared over the past decade, with drastic year-over-year increases, according to researchers at the Northeastern University School of Law. In Minnesota, the New York Times found that they quadrupled.
These laws are growing in popularity and severity: In 2017 (the most recent year in which this data was collected), 13 states introduced bills to strengthen their drug-induced-homicide laws or create new ones, according to the Drug Policy Alliance. Last year, Rhode Island passed a drug-induced-homicide law that allows for sentences of life without parole. In July, North Carolina passed a “death by distribution” law that treats an overdose as second-degree homicide and carries a sentence of up to 40 years. These are draconian punishments for low-level offenses — and there is no evidence that prosecutions deter drug use or sales.
Justin’s and my story is a familiar one. Shortly after high school, we began using OxyContin. When prices skyrocketed, a friend introduced us to a cheaper alternative. At the time, $20 worth of heroin was equivalent to $160 worth of OxyContin. When I tried heroin, I found it anticlimactic. For all the talk about it being a “hard drug,” the effect was exactly the same as the pharmaceutical I’d been accustomed to using. Justin and I made the switch.
Soon, we were both physically dependent on the drug. Withdrawal causes panic and agony so severe they hijack survival instincts. All the goals we’d had — I once dreamed of going to medical school — fell by the wayside. Our singular mission, day after day, became avoiding withdrawal. It dominated our thoughts and dictated our actions.
To purchase heroin, you have to know someone who has it, or know someone who knows someone who does. Friends and acquaintances formed our network. The vast majority of heroin dealers I met were not in it to make money. They simply supported their own habit by selling to people they knew who were also addicted. The archetypal predatory drug dealer is a myth. For many, a sale is not about ruthless profit; it is about survival.
On March 28, 2014, Justin texted me, looking for a gram of heroin. I had a gram to spare, so I sold it to him for $80. We’d sold heroin back and forth like this for the five years we’d been addicted; I didn’t give it a second thought. I learned that Justin had died only when the police raided my apartment the next night. They placed me in handcuffs and told me I was being arrested under a federal law, “delivery resulting in death,” for Justin’s overdose, a charge that they said carried a 20-year minimum sentence. Three months earlier, my mom had overdosed on her Veterans Affairs-prescribed pain medication. I was 24 years old, addicted to heroin and not a dealer in any traditional sense of the word. Justin was my best friend. I thought I had helped him stave off withdrawal; the government said I had killed him. Through a plea deal, I was prosecuted on a lesser charge, “conspiracy to distribute heroin,” and given five years.
At the time, I assumed this was a fluke. But my situation was fairly common in our criminal justice system. Despite what legislators claim, these laws do not target only high-level dealers. More often, they ensnare people just like me. For example, in Pennsylvania — the state that leads the nation in these prosecutions — roughly half of those convicted in the first six months of 2017 didn’t have the traditional dealer-user relationship with the deceased, a New York Times investigation found: They were family members, romantic partners or friends. Similarly, when a Fox affiliate in Milwaukee looked into 100 recent death-by-delivery cases in Wisconsin, it found that only 11 involved higher-level drug dealers.
User-dealers are the most common kind of dealer and the most visible to the police — and therefore the easiest to arrest. Some defendants have been apprehended after trying to save the victim’s life, by dialing 911, or administering CPR or naloxone, a medication that can reverse the effects of an overdose. (Good Samaritan laws that are intended to encourage people to call for help during an overdose protect only against arrest for possession, not murder.) Homicide-by-overdose laws discourage people from seeking aid during an overdose, which inevitably leads to more deaths. In recent years, as these prosecutions have picked up, the number of fatal overdoses nationwide has continued to climb.
Incarcerating people with addiction does nothing to address the opioid crisis — it only increases human suffering. Plagued by overcrowding and violence, prisons are not places that nurture the emotional vulnerability necessary for healing. In the two weeks after their release from prison, a person’s risk of dying from a drug overdose is 129 times higher than that of the general population, according to a 2007 study in the New England Journal of Medicine.
When I was at the Federal Correctional Institution in Dublin, Calif., brief psychiatric sessions were available for us, and we could get psychiatric medication prescribed that way. But one-on-one mental health counseling with the sole psychologist, responsible for 1,400 inmates, was unobtainable. The Bureau of Prisons ran a drug treatment program, but it focused on criminal thinking patterns instead of the root causes of addiction, such as trauma; I found it unhelpful.
Even so, I was fortunate. Being white and middle class fundamentally shaped my experience within the criminal justice system. My five-year sentence was abnormally low for a delivery-resulting-in-death case. (A black defendant is 75 percent likelier to receive a mandatory minimum sentence than a white defendant who committed the same crime, according to a 2014 University of Michigan Law School study.) Throughout my incarceration, with the life insurance money I had received after my mom’s death, I could afford to spend thousands of dollars on phone calls and messages that allowed me to stay in contact with family and friends. These connections provided the social support and the hope for my future that I needed in order to succeed — to avoid returning to prison, and to instead create a fulfilling new life for myself. Upon my release, I could afford to enroll in Portland State University instead of being forced to take the first job that would accept me with a criminal record. I found an avenue to recovery outside of 12-step programs: Today, I live a healthy lifestyle, exercise and surround myself with loving relationships. Despite — and not because of — my incarceration, I recovered.
Society offered no compassionate resources to Justin while he was alive — only a dozen arrests and a prison sentence, none of which helped him overcome addiction. Only after his death did the government indicate that it valued his life. The federal government poured resources into convicting five people for his accidental overdose — me, my roommate who sold me my heroin, his dealer and that man’s two dealers — sentencing us to 60 total years in prison for Justin’s death. The flow of heroin in our city, Portland, continued without a moment’s interruption. In the years after the trial, the rate of fatal heroin overdoses in Oregon even increased.
A public health crisis requires a public health response; it requires us to move beyond blame and find compassionate, evidence-based practices. Increasing access to medication-assisted treatment, naloxone and safe consumption sites are proven methods. We can exact vengeance or we can save lives, but we cannot do both.