Amy Shemberger and her boyfriend, Peter Kucinski, were together for 18 years. They had a five-year-old son together. They also had a heroin habit.
On August 10, 2014, Shemberger went out to pick up $20 worth, the couples’ daily opiate dose. She snorted her $10 bag on her way home. Upon returning, she handed Kucinski his share. He snorted his and stopped breathing.
Shemberger did what anyone should do when their partner is having a health crisis—she called 911. This is also what landed her in prison for seven years. Two months after Kucinski fatally overdosed, Shemberger was charged with murder.
She’d handed her lover drugs—an act that qualified as a “delivery,” which in turn made her eligible for prosecution as a “drug dealer” under Illinois’s “drug-induced homicide” laws, a method of waging the drug war that’s becoming increasingly popular in recent years, despite little evidence that it works—and plenty of evidence that it makes things worse.
The notion of punishing people who sell drugs with murder charges is gaining new currency “thanks” to the opiate crisis, but it is not a new or original idea.
Drug-induced homicide laws started appearing on the books of states and the federal government during the drug-induced hysteria of the 1980s, as prosecutors and lawmakers, unsatisfied with all the extant methods to put a drug-seller in prison for decades, searched for ever-stiffer methods of punishment.
As the Drug Policy Alliance points out, 20 states now have drug-induced homicide laws on the books—including Pennsylvania, New Hampshire, Wisconsin, and West Virginia. As it happens, these are the same areas with the most ghastly body counts related to opiate overdoses.
Thus, you could look at the results in those states and conclude that, just maybe, these laws aren’t doing anything to halt the flow of opiates. They certainly aren’t dissuading people from using opiates, and as long as there are users, there will be drug dealers.
What drug-induced homicide laws do, the DPA argues, is create more victims. Shemberger is a good example: A nonviolent drug user who certainly had no intent to kill her lover and the father of her child.
In Massachusetts, lawmakers are considering making anyone found guilty of “trafficking” heroin or fentanyl that later led to a fatal overdose eligible for a manslaughter charge.
“The people who are selling these drugs have to at least know the consequences of what happens to the people that they’re selling it to,” said state Rep. Jim Lyons of Andover, Massachusetts, in an interview with the Lowell Sun. “And if we’re serious about shutting down the drug dealers we’ve got to make sure that they know they’re going to go to jail.”
Somehow, Lyons is the reasonable actor. Another proposal, from Massachusetts Minority Leader Brad Jones, a Republican, would create a mandatory minimum of five years for anyone caught “distributing a drug causing death.” The maximum penalty for that crime would be life in prison.
Prospects for Massachusetts joining the 20 other states with drug-induced homicide laws look good. Gov. Charlie Baker proposed similar laws in August—and the state senate’s crime bill, not yet law, makes anyone selling drugs who lead to death eligible for second-degree murder.
Taking a step back, it’s clear that there needs to be a disincentive to selling drugs like fentanyl and carfentanil, minute doses of which can lead to a fatal overdose. But you know all of this. It’s simple profit motive-driven economics.
It’s also abundantly clear what impact drug-induced homicide laws have on drug use and sales.
Nothing—the opiate crisis has become steadily worse with these laws on the books.
And it doesn’t exactly encourage the kind of policing that leads to harm reduction. In some states, police carry overdose kits. In states where the person who called the cops to report their friend overdosing risks going to prison, you have cops who dress up and make videos as if they’re auditioning for ISIS.
Examples of this approach’s total, tragic failure abound.
A Rhode Island man is serving 20 years in prison for selling $40 worth of heroin cut with fentanyl. He was sentenced in 2014. More people have died since then.
“We’re going to be ruthless,” prosecutor Joseph Coronato of Ocean County, New Jersey, told the AP in 2013. “We’re looking for long-term prison sentences.”
In the years since, opiate-related overdose deaths in New Jersey doubled.
Any reasonable person would look around and conclude that drug-induced homicide laws clearly aren’t working. Fatal drug overdoses have become the leading cause of accidental death for 25-to-64-year-olds with these laws on the books. Opiate use steadily climbs. So do deaths.
But instead of changing course, other states are doubling down—and cooking up ways to execute someone who dealt fatal drugs rather than just locking them up.
In Florida, someone found guilty of selling any amount of fentanyl that leads to a fatal overdose can now be charged and found guilty of first-degree murder. As the Daily Beast reported, there are two penalties for first-degree murder: Life without parole, or the death penalty. In this case, the drug dealer doesn’t even need to know whether or not the drugs involved had fentanyl.
In practice, Florida’s law seems doomed to reserve the stiffest punishments available for the lowest-level dealers, while doing nothing to staunch the flow of fentanyl—or warn drug users that their stashes are tainted.
There are proven methods of dissuading people from using drugs that will kill them. You can help drug users test their bag before they use too much and die. You could even try to treat the underlying causes—get someone in detox, address their trauma or pain or existential dread, maybe even fund preventative healthcare or get them a job.
Or not. You could dissuade Good Samaritan laws and leave someone weighing whether or not to call 911 as their friend, lover, mother or son lies convulsing in the throes of an overdose. You could do nothing to deter drug use. You could also compound a national tragedy, and fill prisons along with graveyards.
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