By Treating Overdoses Like Murder, Prosecutors Are Making the Opioid Crisis Deadlier

Activists attend a protest denouncing the city’s “inadequate and wrongheaded response” to the overdose crisis, outside of the NYPD headquarters, August 10, 2017, in New York City. (Photo: Drew Angerer / Getty Images)

Peter Bruun and his family were not going to let another young life be destroyed.

In 2014, Bruun’s 24-year-old daughter Elisif contacted her friend Sean Harrington while she was receiving treatment for heroin addiction at a mental wellness facility in North Carolina. She asked Harrington, who struggled with the same addiction and was living houseless in Philadelphia at the time, to send her heroin in the mail. Harrington agreed.

Elisif overdosed and died at the treatment facility after taking the drugs, a tragedy that accompanies relapse all too often. Police followed a paper trail right back to Harrington, who was arrested and extradited to North Carolina on second-degree murder charges. He faced up to 52 years in prison.

The Bruuns initially told prosecutors that they would rather see the person who mailed the drugs receive treatment than prison time if their situation was anything like Elisif’s. After learning that the suspect was a friend who was also addicted to heroin, not a “professional” drug dealer who preyed on sick people, the Bruuns reiterated their stance in an email that went unanswered. The prosecution proceeded anyway, perhaps influenced by media-driven panic around the opioid overdose crisis. The Bruuns refused to cooperate.

“Indeed, we had established a relationship with Sean and his family and, as you might expect, we had a lot more in common with them than with the prosecutors,” Peter Bruun told reporters this week on a call organized by the Drug Policy Alliance.

After he spent two years in jail, Harrington’s charges were dropped, in part because the Bruuns did not cooperate with the prosecution. The young man is successfully recovering and has not used drugs in three years. Bruun said nothing has helped with his own healing process like “Sean’s redemption and good health.”

“Elisif was ill, and so was Sean, and they both deserve life and don’t deserve blame,” said Bruun, who is now an activist challenging stigma around drug use.

The decision to charge Harrington with the murder of his own friend is part of a disturbing national trend. Under a federal drug-induced homicide law and similar laws in North Carolina and 19 other states, prosecutors can charge people who sell or share drugs that lead to death with manslaughter and even murder.

Many of the state homicide laws were passed by legislatures in 1980s and 1990s, when lawmakers and law enforcement mistakenly believed the war on drugs could be “won” by cracking down on suppliers. The laws were rarely used for years, but now prosecutors are increasingly returning to these statutes to pursue homicide charges in response to the opioid crisis.

Lawmakers in at least 13 states have introduced bills that create or strengthen drug-induced homicide statutes in 2017 alone. Even in states that don’t have such laws on the books, prosecutors are increasingly pursuing homicide charges in response to rising rates of opioid overdose deaths.

There is no available data on the number of drug-induced homicide prosecutions nationwide, but the Drug Policy Alliance found that the number of media stories mentioning such prosecutions increased by 300 percent from 2011 to 2016. Coverage of the opioid overdose crisis also increased during this time, and prosecutors and district attorneys often respond to public outcry by seeking more serious charges.

Prosecutors argue their efforts deter drug sales and take traffickers profiting from the misery of others off the streets, but advocates say there is not a “shred of evidence” that enforcing drug-induced homicide laws reduces drug use, sales and deadly overdoses, according to a new report from the Drug Policy Alliance. Instead of preventing deaths, this expansion of the criminal dragnet deters drug users from seeking medical treatment and calling 911 in the event of an overdose.

Moreover, the history of drug criminalization suggests these enhanced prosecutions disproportionately impact poor communities and communities of color.

For example, in Louisiana, a spike in overdose deaths in New Orleans and Baton Rouge areas inspired a law enforcement crackdown in recent years. Top cops and prosecutors warned drug dealers in interviews with the local media that selling heroin could land them a life sentence under the state’s homicide statute, but that did little to prevent deaths. From 2014 to 2015, the number of fatal overdoses increased by 12 percent.

Prosecutors are abusing their already sweeping discretion in drug cases by seeking homicide charges against people who are often no more culpable than the person who died, according to the Drug Policy Alliance report. In order to secure homicide charges, prosecutors must prove the defendant “caused” a death, and that evidence becomes more difficult to come by as the investigators move up the supply chain. As a result, the vast majority of drug-induced homicide charges are brought against friends and family who share drugs or acquaintances who sell small amounts of opioids in order to support their own addictions.

“They say these laws will be used to go after so-called kingpins, when in fact what all of the data to date shows is that these laws are actually being prosecuted most often against the very last person to touch the drug,” said Lindsay LaSalle, a senior attorney at the Drug Policy Alliance, at a press conference on Tuesday.

The trend toward heightened charges has another dangerous effect: The friends and family currently being targeted for prosecution are often the very same people who are in the best position to call an ambulance during an overdose.

In response to the overdose epidemic, many cities and states have enacted “911 Good Samaritan” laws that typically prevent police from making arrests for minor drug and paraphernalia possession when responding to an overdose, thus encouraging users to call for help. The enforcement of drug-induced homicide laws has undermined this effort because people fear facing decades in prison if they call 911.

“These laws are more than just a misguided response to overdose deaths, they are truly inhumane,” Lindsay said.

Homicide prosecutions are also very expensive, and advocates argue there are much better ways to spend public dollars. As Truthout has reported, treating the overdose crisis as a public health problem by expanding access to evidence-based drug treatments and harm reduction services is a proven strategy for helping people recover without throwing them behind bars.

For example, governments in countries such as Portugal support efforts to supply heroin users with testing kits that detect deadly adulterants like fentanyl. While drug testing kits are becoming more popular at music festivals, the US government has yet to support this harm reduction strategy in local communities.

“Suppose for a moment if it was easier to get into treatment than it is to get into jail,” said Gwen Wilkinson, a former district attorney in western New York who now advocates for public health solutions to drug problems.

Increasing criminal penalties for selling drugs has never solved drug problems. The supply for drugs like opioids that cause physical dependence is driven by demand, not the other way around. By seeking murder charges for people involved with opioids, prosecutors are driving vulnerable people deeper into the shadows of a deadly crisis.