Who cares about overdose prosecutions?

by Matt Curtis

We’ve had a lot of good news around overdose lately. The U.S. Centers for Disease Control and Prevention recently released a report on community-based overdose prevention programs, and the Food and Drug Administration just held a hearing on making naloxone more available. The Commission on Narcotic Drugs – the annual social mixer for lifer international drug war bureaucrats – endorsed giving more attention and resources to overdose prevention. It seems like every week there’s more great work being done on the front lines.

One other thing you’ll notice if you keep track of overdose-related news in the United States is the number of criminal prosecutions following overdose deaths.

These prosecutions have their origins in the Narcotics Penalties and Enforcement Act of 1986, also known as the “Len Bias Law” after the star University of Maryland forward who died of cocaine poisoning two days after being drafted by the Boston Celtics. This was the first major federal legislation of the ‘war on drugs’ era, which amended the Controlled Substances Act to introduce mandatory minimum sentences and a number of other enhanced criminal drug penalties.  One novel feature of the law was that it significantly increased prison time for anyone convicted of supplying drugs “if death or serious bodily injury results from the use of such substance.” Though federal prosecutions are still common, many states subsequently adopted similar legislation.

So, fine you say, isn’t this just drug dealers and corrupt pill mill doctors getting what they deserve for poisoning people?  A scan of news articles from the past couple years does show the occasional major dealer going down with a second-degree murder charge tacked on for an overdose. More common is a case like that of April Lynn Baker and Ryan Hartley in Maryland.

In 2008, Ms. Baker acquired methadone and morphine from a nursing home staff, which she traded to Mr. Hartley for marijuana. Hartley then sold a single 40 mg methadone wafer and 20 ml of liquid morphine to Brandon Sgaggero, who was found dead from an apparent overdose five days later. In describing Baker and Hartley as drug dealers, prosecutors note that both used drugs themselves, which is what led Sgaggero to seek out Hartley, and that Hartley sold to Sgaggero on only one occasion. In the event, Baker was sentenced to three years in prison and Hartley six.

Other examples abound, in Tennessee, Wisconsin, Washington and elsewhere. We’ve even seen prosecution of people for not adequately responding to a witnessed overdose, as in this case in Virginia.

The way in which criminal liability for overdose deaths is currently handled is very difficult to square with our rhetoric about harm reduction and drug policy. Yet I have rarely have heard colleagues in harm reduction or the broader public health and medical fields even mention the issue. This may be because the issue presents itself infrequently in the context of harm reduction services, and it’s even less often brought to the attention of people working in policy or academia. For those cognizant of overdose prosecutions, I suspect there’s a degree of ambivalence related to the getting-what-they-deserve issue. Among the many people working in harm reduction now who come from a professional rather than activist background, many may feel that the issue lies outside the scope of public health or social work.

So I think it’s time to take a deeper look at this issue, and it’s time for harm reduction and drug policy reform advocates to take it on. What is the best way to do so is a little more complicated, and something I will address in future posts around some of these questions:

• What is the scope of the problem? Where and how are overdose-related prosecutions happening?
• Should sellers be responsible for outcomes, and if so then under what circumstances? Should the expectation of potential harm from illegal drug use be a legitimate defense?
• How or why should we approach this differently than sellers of other (potentially) adulterated products, like produce contaminated with E. coli or counterfeit medication?
• People who use drugs tend not to keep a log of who they buy from, and medical examiners can’t determine the provenance of a morphine or cocaine metabolite. So is it appropriate to prosecute someone for an act that cannot be forensically linked to the outcome?
• People in drug policy reform often say something akin to ‘No one should be incarcerated for a petty, nonviolent drug crime.’ Where is the line drawn? Who is a drug dealer? Are there any circumstances under which supplying drugs that lead to “death or serious bodily injury" should result in criminal liability, and if so, in the current system is there any way to fairly determine guilt?

I admit some of these questions are a bit loaded. I don’t have the answers figured out though, and welcome comments, counterarguments, data, and anything else you would like to contribute.