Prosecuting Drug Overdose Cases: A Paradigm Shift

A death caused by a drug overdose, such as one from heroin or fentanyl, is rarely a solitary event. It affects far more than the individual or his or her loved ones. It extends to strangers, the emergency medical personnel who were called to try to save them and the law enforcement officers who investigate their death. It impacts their employers and co-workers. It touches the community at large.

Drug overdose deaths in the United States claimed over 64,000 Americans in 2016¹ and the number keeps rising. Drug overdoses are now the leading cause of injury death in the country and, while prescription drugs are primarily responsible for the rapidly growing number of overdose deaths, illicit opioid drugs such as heroin and fentanyl are significant contributors to the problem.² Fentanyl and fentanyl analogues accounted for over 20,000 deaths in 2016, while heroin accounted for over 15,000,³ making them the two leading causes of drug overdose deaths.

For many years, law enforcement approached death caused by a drug overdose as accidental, or perhaps more descriptively stated, often as a death by misadventure – one primarily attributed as an unintentional accident involving no violation of law or criminal negligence. Adopting this point of view, there was no crime involved in the death. Law enforcement’s role was to oversee the removal of the deceased’s body by the ambulance crew or coroner’s office, notify the next of kin, and do the required paperwork before moving on to their next call.

But things have started to change. Heroin, once thought to be passé as a recreational drug of choice, has come back more prevalent than ever. The previous heroin epidemic, from 1970 until 1978, was primarily an urban crime problem.⁴ This new epidemic is different; heroin is easier to get, cheaper, and more potent. And the demographics have changed; there is a wider distribution throughout urban, suburban, and rural areas. With that has come an increase in use. The number of Americans using heroin has grown 500 percent within the past decade.⁵

Non-medical use of prescription opioids is seen as one of the primary forces in this increase. In addition to heroin, other drugs such as fentanyl, a synthetic opioid, with a potency 50 to 100 times greater than that of morphine and 25 to 50 times greater than that of heroin, entered the scene and has established an ever-increasing share of the illicit drug market.⁶ Mixed with heroin or sold as counterfeit heroin or other drugs, fentanyl is even cheaper and, thus, more attractive to drug dealers. In addition to being substituted for heroin, hundreds of thousands of counterfeit prescription pills containing deadly amounts of fentanyl have exacerbated the crisis.⁷

How, then, does the country respond to such a crisis? There is no one answer or silver bullet to address the problem but, rather, a litany of responses: public health intervention and treatment; education of the medical community, both practitioners and patients; education of the general public; and finally, law enforcement and prosecution, the topic of this article.

For many years, most prosecutors charged only those drug-related deaths involving rival drug gang fights as being homicides. But the focus has now broadened to also examine overdose deaths as prosecutable homicides against those who sold and distributed the drugs causing the overdose. It is important to emphasize that not every death because of a drug overdose is a criminal matter. Some are suicides, and some are simply accidents. But some deaths, legally and ethically, may rise to the level of criminal homicide. These homicides may not be easily discovered, investigated, prosecuted or proven, but they still deserve attention. For that to happen, a paradigm shift in thinking by law enforcement officers and prosecutors is required, away from attitudes focusing on accident to thinking and treating overdoses as homicides.

In order to make that shift, it is important to understand and appreciate the variety of approaches available within existing statutory schemes and case law. While a handful of states have no statutory or case law basis for treating overdose deaths as homicides,⁸ the majority already had or have adopted a wide variety of legal theories useful in addressing these cases. Two basic options highlight the differing approaches: use of the existing statutory structure, often referred to as the felony murder rule, and creation of a specific offense of death resulting from the distribution of controlled substances.

What might be characterized as the traditional approach to the matter may be found in those states that have included overdose deaths within their murder statute. Arizona and Oklahoma, among others, list drug offenses as crimes which, when a death occurs during the commission of that offense, is treated as murder.⁹ A significant number of states enumerate drug offenses within their murder statutes and, while the laws have been on the books for a considerable time, they are only now being considered for use in overdose cases.

A felony murder statute allows the prosecutor to charge an offense which requires no specific mental state other than that required for the enumerated offense;¹⁰ the law may specifically state that no proof of intent to cause the death is required.¹¹ In general, proof of the underlying offense and the cause of death will be sufficient to obtain a conviction under this approach. Additional elements, such as proof that the underlying felony must be inherently dangerous to human life,¹² or proof of recklessness in both causation and appreciation or awareness of the risk,¹³ may be required in some states.

Where these various felony murder states differ is in their classifications for punishment for the offense. The possibilities range from first degree or capital murder,¹⁴ second degree murder,¹⁵ manslaughter,¹⁶ involuntary manslaughter,¹⁷ and even negligent homicide.¹⁸ They may also limit the application of the statute. For example, Florida’s statute applies only to distribution by an adult,¹⁹ while Colorado’s statute applies only to distribution to a minor on school grounds.²⁰

Those states punishing drug dealing resulting in death as a specific offense have adopted a variety of approaches as well. These “drug-induced homicide” statutes are crafted as stand-alone felonies rather than being included in existing murder or other statutes. Again, as with the felony murder alternatives, the treatment of punishment and application may vary. New Hampshire and New Jersey both define the offense as being one of strict liability.²¹ Both statutes, mirroring one another, apply to methamphetamine, lysergic acid, diethylamide phencyclidine (PCP), or any other Schedule I and II controlled substances and provides that any person who manufactures, sells, or dispenses the substances in violation of law is strictly liable for a death resulting from their use.

The varieties of these statutes are numerous and diverse. Pennsylvania’s statute applies to any controlled substance and provides that the delivery must be done intentionally.²² Delaware has imposed a minimum weight threshold to its statute, requiring, for example, that there be delivery of at least one gram or more of heroin.²³ Michigan’s law covers Schedule I and II controlled substances, but specifically excludes marijuana.²⁴ A recent amendment to the Illinois law allows for prosecution for a death within the state caused by a drug that was delivered outside the state in violation of the law of that other jurisdiction.²⁵

For those states, such as California, which have no felony murder or drug-induced homicide statute that would apply to overdose situations, prosecutors are left to cobble together a criminal liability theory using a second degree murder or manslaughter charge with a negligence or reckless element. California might make use of its involuntary manslaughter statute.²⁶ New York might make use of its statutes regarding criminally negligent homicide (criminal negligence standard) or manslaughter in the second degree (reckless standard).²⁷ A bill to amend Ohio’s involuntary manslaughter statute to include causing or contributing to the death of a person as a result of the sale, delivery, or administration of a controlled substance and making it a strict liability offense was introduced but has languished since 2016.²⁸

Regardless of the criminal statute scheme, one element is the lynchpin to the crime: causation. Whether a felony murder, strict liability, or reckless or negligent theory, causation raises perhaps the most difficult issues in proving these cases.

Overdose cases have a number of matters that may cause the prosecutor some concern, from lack of sympathy for the victim to proving who provided the drugs. On top of these, many of the victims in overdose death cases are polysubstance abusers, injecting or ingesting a wide variety of both legal and illegal substances. Further, because of their drug addictions, their overall general health may be compromised, making them susceptible to diseases and conditions which might impact the situation leading to their deaths. It becomes imperative for the prosecutor to understand what is needed to prove regarding causation.

States have enumerated a variety of different legal standards for causation of death; “direct result,” “caused by,” “proximately caused,” and “results from” being the more common. Also included are “recklessly causes” and “more likely than not.” Each standard has its own legal ramification. It is important to note, however, that the analysis of proximate causation in tort law is quite different from that analysis applied in criminal law. Mere negligence may suffice in a personal injury case, but not in a criminal matter where gross or wanton disregard is needed to show criminal negligence.

In those states making use of a result-oriented scheme, states may follow the reasoning set forth in the leading federal case on the issue, Burrage v United States.²⁹ Burrage was prosecuted under the provisions of 21 U. S. C. § 841(b) (1) (C) which provides for punishment in the event that “death or serious bodily injury result[ed] from the use of [the drug].” In Burrage, long-time drug user Banka died following an extended binge that included using heroin purchased from Burrage. At trial, medical experts testified that Bank might have died even if he had not taken the heroin Burrage provided. Denying a motion for judgment of acquittal, the trial court instructed the jury that the government only had to prove that heroin was a contributing cause of death. The U.S. Supreme Court looked at both actual and proximate cause, holding that, at least where the use of the drug distributed by Burrage was not an independently sufficient cause of the victim’s death, he could not be held liable unless such use is a “but-for” cause of death. Thus, under Burrage, a particular drug causing a contributory effect to death is not sufficient to create criminal liability.

This narrow approach to causation makes it especially important that the medical examiner and toxicologist both be consulted prior to initiating a prosecution. Beyond the issue of whether the death is an accident versus a homicide, the medical examiner and toxicologist must understand the legal requirements and what ultimately may be asked of them during testimony in homicide prosecutions such as these. The prosecutor must also understand the distinctions and potential nuances in the medical examiner’s stated cause of death.

Even under a felony murder scheme, often seen as a strict liability situation, causation may still be required. For example, the sole act of selling heroin to a purchaser, who, voluntarily and out of the presence and without the assistance of the seller, subsequently injected heroin and died as a result, may be insufficient to invoke the felony murder rule. In order to convict of felony-murder, it may be necessary in some jurisdictions to show that the conduct causing the death was done while in the commission of a felony or in furtherance of the design to commit the felony.³⁰ Thus, if the commission of the felony is completed upon the sale, a felony murder charge cannot stand. Nor may the result causation element be ignored even in the strict liability situations. These statutes may still contain a result oriented causation requirement.³¹

Thus, even when not specifically enumerated in the statute, causation remains an essential element. For example, where manufacturing or delivering a controlled substance is the underlying felony relied upon in a felony murder prosecution, the state might still be required to prove (1) the commission or attempt to commit the felony; (2) the defendant’s participation in such felony; and (3) the death of the victim as a result of injuries received during the course of the commission or attempt.³² Furthermore, the cause of death might not necessarily be the sole cause of death.³³ And where the medical examiner has found that the ingestion of the drug was not the sole cause of death, the prosecutor will face an additional legal hurdle. Thus, in order to make the shift to treating overdose deaths as homicides, it is imperative that investigators and prosecutors find not only the correct legal scheme under which to proceed, but also be mindful of the causation element embedded in a statute or required by a jurisdiction’s case law.

Prosecuting overdose deaths as homicides will not be the silver bullet to the public health crisis this nation faces. However, it is one tool in the law enforcement arsenal which, if used appropriately, can assist locally in focusing on the drug dealers who take advantage of those who have become addicted to opioids.

Endnotes

1. Ctrs. for Disease Control, Provisional Counts of Drug Overdose Deaths, https://www.cdc.gov/nchs/data/health_policy/monthly-drug-overdose-death-estimates.pdf.
2. Karin A. Mack, et al., Illicit Drug Use, Illicit Drug Use Disorders, and Drug Overdose Deaths in Metropolitan and Nonmetropolitan Areas — United States, Ctrs. for Disease Control, MMWR 66 Morb. Mortality Wkly Rep. (Oct. 20, 2017), 1-12, https://www.cdc.gov/mmwr/volumes/66/ss/ss6619a1.htm?s_cid=ss6619a1_w.
3. Josh Katz, The First Count of Fentanyl Deaths in 2016: Up 540% in Three Years, N.Y. Times, Sept. 2, 2017, https://www.nytimes.com/interactive/2017/09/02/upshot/fentanyl-drug-overdose-deaths.html?_r=0.
4. Robert L. DuPont, The Heroin Epidemic: Then and Now, https://www.deamuseum.org/wp-content/uploads/2016/03/032216-DEAMuseum-HeroinEpidemic-DuPontPPT-MLS.pdf.
5. Heroin Use Rises Significantly Among Young Whites, https://www.mailman.columbia.edu/public-health-now/news/heroin-use-rises-significantly-among-young-whites.
6. Alice G. Walton, Why Fentanyl Is So Much More Deadly than Heroin, Forbes (April 9, 2016), https://www.forbes.com/sites/alicegwalton/2016/04/09/why-fentanyl-is-so-much-more-deadly-than-heroin/#4af0b1557f6a.
7. DEA, Counterfeit Prescription Pills Containing Fentanyl: A Global Threat, DEA Intell. Brief, (DEA-DCT-DIB-021-16, July 2016), https://www.dea.gov/sites/default/files/docs/Counterfeit%2520Prescription%2520Pills.pdf.
8. The offense of trafficking a controlled substance by possession with intent to distribute cannot be the predicate felony to a felony murder conviction because it is not an inherently dangerous crime. State v. Bankert, 117 N.M. 614, 975 P.2d 370 (1994).
9. Ariz. Rev. Stat. § 13-1105 and 21 Okla. Stat. Ann. § 21-701/7.
10. Alaska Stat. § 11.41.120.
11. Minn. Stat. § 609.195.
12. Ga. Code Ann. § 16-5-1.
13. Iowa Code § 707.5.
14. See, e.g., Ariz. Rev. Stat. § 13-1105, Ga. Code Ann. § 16-5-1.
15. La. Rev. Stat. Ann. § 14:30.1, Mo. Rev. Stat. § 565.021.
16. Mass. Gen. Laws Ann. Ch. 265, § 13.
17. Nev. Rev. Stat. § 200.070.
18. Mont. Code Ann. § 45-5-104.
19. Fla. Stat. § 782.04(1(a)3.
20. Colo. Rev. Stat. § 18-3-102(e).
21. N.H. Rev. Stat. Ann § 318-B:26; N.J. Rev. Stat. § 2C:35-9.
22. Tit. 18 Pa. Cons. Stat. Ann. § 2506.
23. Del. Code Ann .tit 16 § 4752B.
24. Mich. Comp. Laws Ann. § 750.317a.
25. 720 Ill. Comp. Stat. 5/9-3.3.
26. Cal. Penal Code § 192.
27. N.Y. Penal Law §§ 125.10, 125.15.
28. H.B. 141, 132^nd General Assembly.
29. 134 S. Ct. 881 (2014).
30. See State v. Mauldin, 215 Kan. 956, 529 P.2d 124 (1974).
31. N.J. Rev. Stat. § 2C:35-9.
32. See., e.g., State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983).
33. See State v. Jenkins, 229 W.Va. 415, 729 S.E.2d 250 (2012).