Opinion | The Latest Failure in the War on Drugs

In September 2018, the rapper Mac Miller died of a drug overdose — a toxic combination of fentanyl, cocaine and alcohol. Three men were charged with distributing the drugs that allegedly led to his death. In July, Tyler Skaggs, a pitcher for the Los Angeles Angels, died from asphyxia. Fentanyl, oxycodone and alcohol were found in his system, and federal authorities are working to determine who provided the drugs that killed him.

Mac Miller (whose real name was Malcolm James McCormick) and Mr. Skaggs are among the hundreds of thousands of Americans who have lost their lives to drug overdoses. One way the authorities have responded to this crisis is by promoting the use of naloxone — a medication used to revive people who have overdosed on opioids  — and expanding access to medications for opioid use disorder.

But despite the recognition of drug use as a public health issue, some states have also introduced “drug-induced homicide” laws that put the responsibility of an overdose at the feet of the drug suppliers. In Rhode Island, for example, under “Kristen’s Law” a person who supplies drugs to someone who overdoses can be punished with a life sentence.

These laws have been enacted in at least 25 states, while a few more are considering adopting them. They represent a return to the outdated “war on drugs” approach, which decades of research has shown to be unsuccessful. It instead increases risks for those who use drugs, particularly minority populations and people of color.

Some may see no problem with these laws. Partly because of rhetoric from the Trump administration, people tend to think that the drug supply is controlled by shady cartel figures and ruthless dealers who are stationed on American street corners.

The reality is far more complex. People who supply drugs are often friends or family members of those who overdose and often use drugs themselves. In a national survey, more than two in five people who reported having sold drugs also said they meet the criteria for a substance use disorder. Another analysis of drug-induced homicide news stories, conducted by the Health in Justice Action Lab at Northeastern University, found that 50 percent of people who were charged under drug-induced homicide laws were either friends, caretakers, partners or family members. Drug transactions are not as simple as buyer and seller.

All of this nuance is not captured in existing legislation. In Rhode Island, if someone were to give drugs to a friend in exchange for food or a place to stay for the night, that person could be charged if their friend fatally overdosed. The law criminalizes the exchange of anything of value for drugs, regardless of whether someone is a full-time dealer or merely passing drugs on. In other states, multiple people have been charged in the deaths of people they merely shared drugs with.

Proponents say that because these laws have good Samaritan provisions — which protect from criminal consequence those who seek emergency medical assistance at the scene of a suspected drug overdose — they will not discourage people from calling 911 to report an overdose. However, while studies have shown that knowledge of good Samaritan protections is associated with a willingness to call 911 in the event of an overdose, people are still afraid to call because of fear they will be charged. In Vermont, the state health department found in 2018 that fewer than 40 percent of people who requested a refill of naloxone reported calling 911. In the likely event that drug-induced homicide laws escalate such fears and prevent bystanders from calling 911, these laws will actually increase the rates of fatal overdose among those they are trying to protect.

A 2018 study of drug users in Baltimore found that those who sold drugs were 69 percent more likely to have witnessed an overdose in the past six months. Given that those who sell drugs are more likely to witness — and therefore be in a position to intervene — in the event of an overdose, these laws might be especially damaging and counterproductive. Adding a good Samaritan provision to a bill that is aimed to criminalize is hardly reassuring.

What’s more, putting drug users in jail will only worsen the overdose crisis. People who have recently been released from prison are at much greater risk of overdosing than the public — up to 40 times greater in some cases. Most jails and prisons across the country do not have medications to treat opioid addiction, which means that when people are released they are especially vulnerable to fatal overdoses.

The war on drugs has hit communities of color the hardest, with Black and Latinx people much more likely to be arrested for simple possession and to receive harsher sentences than whites, despite rates of drug use being similar across all communities. Even with promises from the authorities to pursue a public health approach, racial disparities in drug-related arrests persist. A study conducted in Washington State found that among people who had received treatment for substance abuse disorder, black clients were more likely to have been arrested on substance-related charges compared to white clients. The rate of Fentanyl-related overdose deaths has risen most sharply for black and Latinx people, so we can only expect that drug-induced homicide legislation will disproportionately and negatively affect them.

There has been progress: The Massachusetts Supreme Court recently struck down a drug-induced homicide conviction. The court argued that the prosecution did not provide sufficient evidence that Jesse Carrillo knew that the heroin he gave to a fellow student, Eric Sinacori, would cause a deadly overdose. Similar arguments can be made for other cases. Fentanyl has so contaminated the drug supply that it is hard to determine how much control individual sellers have on quality and content. Promoting the use of tools like fentanyl test strips, which can allow people to check their drugs before selling or using drugs, should be promoted. Indeed, when we recently collaborated with other researchers on a study of Rhode Islanders at risk of fentanyl overdose, we found that those with a history of drug dealing were among the most likely to use fentanyl test strips.

Punitive measures threaten the progress we have made on the overdose crisis. They push people into the shadows, increase overdose risk and contribute to racial disparities. If the authorities are serious about treating drug use as a public health issue, then they have to let go of this longstanding fixation on punishment.

Brandon D.L. Marshall is an associate professor of epidemiology at the Brown University School of Public Health, where Abdullah Shihipar is a master’s degree candidate.

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