The Over-Prosecution of Drug Overdose Cases

When someone dies from a drug overdose, it is natural to ask two questions: 1) “Why did this happen?” 2) “Who is to blame?” These concerns have come to a head in recent years over the opiate crisis in this county. However, I would suggest that the solution to the crisis requires more than brute force through broad and aggressive criminal prosecutions.

Many state legislatures have opened the prosecutorial floodgates to these types of cases. And the public wrongly assumes that these cases are all predicated on the idea that the focus of the prosecutions are squarely on the “drug dealer.” The “drug dealer” is the transactional entity who sells drugs to the “drug buyer,” and the drug buyer uses drugs and dies. Therefore, it would make sense that the “drug dealer” (or “drug distributor”) should be criminally liable for the drug buyer’s death under felony-murder legal doctrine. But in order to convict the “drug dealer,” the State would need to first, identify the “drug dealer” (which is not all that easy to do for obvious reasons) coupled with the task of then trying to prove that that singular transaction was THE distribution of the drugs that in fact, (“proximately”) caused the buyer’s death.

The problem is, that in most cases, the state prosecutor cannot sufficiently identify the actual “drug dealer” because there might not be any actual independent evidence that any drug transaction took place. So the focus shifts over to who the prosecution could identify in the chain of custody of the drugs, if not a drug dealer per se. Enter the simultaneous/joint/end user. They are the guilty one, at least according to the laws in many states.

Recently, I argued before a Florida jury that the prosecution should not be able to convict a simultaneous end-user when their friend accidently dies from a drug overdose. And that if the law enforcement cannot identify the real “drug dealer,” then all apologies to the victim’s family, but that should be the end of the road for the prosecution. Fortunately for my client, the jury saw the logic and acquitted my client of the murder charges that were unfairly brought against him.

One would think that he would have been protected by the so-called “Good Samaritan Laws” that are designed to protect the person who is located in the proximate area where another is experiencing a drug overdose. So that when they call 911 for assistance they would not be charged with a crime. The problem is that many states only provide immunity for the charge of drug possession, but no protections are given if they were to charge a more serious crime like manslaughter or murder based on felony-murder legal doctrine where the lines are blurred between drug co-possession basically equates to drug distribution that resulted in a death. If the defendant commits the felony that results in a death, then the charge can be (first-degree) murder. In these cases generally, the prosecutor does not need to prove premeditation nor the underlying felony charge.

The opiate crisis is a complex issue and the solution requires more than a reactionary, knee-jerk type of response that allows overzealous and opportunistic prosecutors to have a carte blanche to wage a reckless war on drugs in courtrooms across America at a time where the collective court system might not have the collective political courage or desire to right the ship.

 

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