Volume 60

Drug-Induced Homicide Laws and False Beliefs About Drug Distributors: Three Myths That Are Leaving Prosecutors Misinformed

by Taleed El-Sabawi, Jennifer J. Carroll, and Morgan Godvin

An increasing number of criminal legal system actors, including some prosecutors, have acknowledged that the so-called “overdose crisis” is a public health problem. Despite this narrative shift, some prosecutors are responding to local overdoses by charging persons who distribute drugs that are linked to a subsequent death with criminal killing. These charges are brought either through the use of existing, non-specific statutes or so-called drug-induced homicide (“DIH”) statutes, which explicitly criminalize the act of delivering a substance subsequently associated with a death. In this Article, we outline three salient themes that have emerged from early literature and from preliminary surveys exploring prosecutors’ perceptions of and justifications for filing DIH charges. In doing so, we provide empirical evidence to suggest that these narratives are based on myths about drugs and the people who use and distribute them—myths that are not supported, and are sometimes contradicted by, scientific research. This Article aims to dispel some of these pervasive yet unsound narratives contributing to the prosecutorial belief that DIH prosecutions have the capacity to improve public health and reduce overdose. In doing so, this Article also provides prosecutors with an alternative framework for more accurately conceptualizing how prosecutorial action against people who use and distribute drugs impacts the health and well-being of the entire community—including persons who use drugs. Finally, this Article also elucidates how well-intentioned prosecutors may be unwittingly causing more fatal overdoses by discouraging calls to 911 during an overdose emergency and by disrupting local drug markets in ways that directly increase the risk of overdose.

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