By Paul Fangrow
According to the National Institute on Drug Abuse (“NIDA”), more than 130 people in the United States die every day from overdosing on an opioid drug.[1] The Centers for Disease Control and Prevention (“CDC”) reports that 68% of the over 70,200 deaths by drug overdose in 2017 were from an opioid.[2] Additionally, the CDC estimates the total economic burden per year in the United States is to the tune of $78.5 billion on just prescription opioid abuse.[3] In 2017, the US Department of Health and Human Services (“HHS”) declared that the opioid epidemic was a public health emergency.[4] Since then, over a billion dollars have been granted to community health centers to treat and research opioid addiction through the HHS.[5]
The alphabet soup of federal agencies are not the only actors on this stage attempting to treat the problem; states have also tried to prescribe their own remedies to societies’ new addiction.[6] As states scramble to find ways to staunch the hemorrhage of avoidable deaths via opioid abuse, North Carolina has breathed new life into a specter of the 1980s, leftover from the War on Drugs.[7] On December 1, 2019, North Carolina’s “death by distribution” law went into effect, which attempts to help fix the crisis by imposing felony convictions on illegal distributors of certain categories of drugs, when those drugs result in the death of their user.[8] Unfortunately, this new “death by distribution” law looks to be a very small solution for a very large problem.
To understand why this fix is so small, consider the cause of the epidemic. It has been widely reported and accepted that the opioid epidemic’s “patient zero” was over-prescription of opioid painkillers in the late 1990s, which led to rampant misuse by patients due to the extremely addictive properties of these painkillers.[9] NIDA reports that between 21% and 29% of patients prescribed opioids for pain relief misuse them, and 8% to 12% of that pool of patients develop a “use disorder.”[10] Out of the original 21% to 29% of people who misuse prescription opioids and ostensibly included in the 8% to 12% of “use disorder” cases, 4% to 6% transition to heroin abuse.[11] Roughly 80% of heroin users initially were misusing prescription opioids.[12]
Now consider what this “death by distribution” law criminalizes. First, while one might intuit “distribution,” the elements of both death by distribution[13] and aggravated death by distribution[14] explicitly state “[t]he person unlawfully sells at least one certain controlled substance.” Not any kind of distribution is criminalized, only sales of certain controlled substances.[15] The statute later defines what kinds of drugs are included as “certain controlled substances,”[16] as well as “lawful distribution” in a way to allow medical professionals to issue valid prescriptions for a legitimate medical purpose, and to allow for pharmacies to dispense, deliver, or administer controlled substances.[17]
Second, both regular and aggravated charges require that “ingestion of the certain controlled substance causes the death of the user.”[18] Third, the sale of the certain controlled substance has to be the proximate cause of the victim’s death.[19] Fourth, the seller must not have acted with malice.[20] The aggravated flavor of the charge includes an additional fifth element that essentially requires the seller to have a previous conviction of this or another drug distribution or trafficking crime.[21] What this law does, in essence, is push the illegal sale of certain categories of drugs from a Class I, H, or G felony[22] to a Class C or B2[23] felony if a person dies from overdose. Two questions arise after a review of this law: will North Carolina’s flavor of drug-induced homicide statute have any meaningful impact on the opioid epidemic,[24] and how does a prosecutor even go about proving all the elements of the crime?
Drug-induced homicide statutes began creeping into the criminal codes of various states in the 1980s to combat the growing use of crack cocaine;[25] North Carolina’s death by distribution law even covers cocaine and its derivatives as the sole stimulant in a long list of depressants.[26] The idea behind these statutes was that big distributors and traffickers would be able to be charged for the deaths of their customers.[27] In reality, the people often caught by these drug-induced homicide statutes were friends, family members, or caretakers sharing drugs with one another.[28] The North Carolina statute is thus very clever in specifying a sale of a drug instead of mere distribution, as it ostensibly will avoid this unfortunate outcome. Unfortunately, clever avoidance of an overbreadth problem doesn’t speak to its efficacy as a solution to the opioid epidemic. Remember that the cause is over-prescription and subsequent abuse of painkillers.[29] While this law may help the people who’ve moved on to heroin or other illegal opioids by virtue of closing down the avenues for its distribution, it does nothing to address the problem of abuse with legally obtained opioids.[30]
The bigger issue with drug-induced homicide laws is proving the actual offense.[31] Drug-induced homicide laws do have two distinct advantages in that category; they do not have a mens rea requirement and operate as a strict liability offense, and they often do not have a proximate cause or foreseeability element.[32] North Carolina’s death by distribution law is similar in that it has no mens rea element in either the standard nor the aggravated offense, but both offenses explicitly incorporate a proximate cause requirement.[33] This introduces concepts of foreseeability and/or intervening or superseding causation into the statute,[34] which can significantly muddy an otherwise straightforward case. What if the buyer of a drug intentionally overdoses as a form of suicide?[35] What if the victim overdosed by taking a mixture of Vicodin and LSD?[36] The explicit statutory language requires that “[t]he ingestion of the certain controlled substance or substances cause[] the death of the user;”[37] what if a drug dealer sells oxycontin to a driver who dies in a car accident while high? This is ignoring the difficulty in locating and proving that a specific dealer sold the specific drug to a specific person who overdosed on that specific drug: what if the victim has more than one dealer of the same product? Ultimately, these are all fact-intensive inquiries for a jury to resolve, which introduces a large degree of unpredictability into any death by distribution case.
Besides unpredictability, there are other factors that
make the death by distribution law unworkable. The administrative costs to
secure toxicology reports and get experts to testify as to the drugs within the
victim’s systems brings with it a higher administrative cost to prosecute.[38]
There is also the greater financial burden on the state to incarcerate dealers
for four to fifteen years instead of less-than-one to three years. All these
costs go to remedy a symptom, not the actual disease underlying the opioid
epidemic. People affected by the opioid epidemic deserve better solutions than
a stopgap relic from the 1980s. The death by distribution law will be simply ineffective.
[1] Opioid Overdose Crisis, NIH, https://www.drugabuse.gov/drugs-abuse/opioids/opioid-overdose-crisis (last updated Jan. 2019).
[2] Understanding the Epidemic, CDC, https://www.cdc.gov/drugoverdose/epidemic/index.html (last updated Dec. 19, 2018).
[3] NIH, supra note 1.
[4] What is the U.S. Opioid Epidemic?, HHS, https://www.hhs.gov/opioids/about-the-epidemic/index.html (last updated Sept. 4, 2019).
[5] Nathan Yerby, Epidemic, OpioidHelp, https://www.opioidhelp.com/epidemic/ (last edited Oct. 15, 2019).
[6] Prescribing Policies: States Confront Opioid Overdose Epidemic, Nat’l Conf. State Legislatures (June 30, 2019) https://www.ncsl.org/research/health/prescribing-policies-states-confront-opioid-overdose-epidemic.aspx.
[7] Valena E. Beety, Drug Enforcement & Health Policy in Today’s Epidemic: Prosecuting Opioid Use, Punishing Rurality, 80 Ohio St. L.J. 741, 757–58 (2019).
[8] N.C. Gen. Stat. § 14-18.4 (2019).
[9] CDC, supra note 2; HHS, supra note 4; NIH, supra note 1.
[10] NIH, supra note 1.
[11] NIH, supra note 1.
[12] NIH, supra note 1.
[13] N.C. Gen. Stat. § 14-18.4(b)(1) (2019) (“Death by Distribution of Certain Controlled Substances”) (emphasis added).
[14] N.C. Gen. Stat. § 14-18.4(c)(1) (2019) (“Aggravated Death by Distribution of Certain Controlled Substances”) (emphasis added).
[15] N.C. Gen. Stat. § 14-18.4(b)(1), (c)(1) (2019).
[16] N.C. Gen. Stat. § 14-18.4(d) (2019) (“ . . . [A]ny opium, opiate, or opioid; any synthetic or natural salt, compound derivative, or preparation of opium, opiate, or opioid; cocaine or any other substance described in [the list of cocaine derivatives]; methamphetamine; a depressant described in [the list of Schedule IV depressants]; or a mixture of one or more of these substances.”)
[17] N.C. Gen. Stat. § 14-18.4(g) (2019).
[18] N.C. Gen. Stat. § 14-18.4(b)(2), (c)(2) (2019).
[19] N.C. Gen. Stat. § 14-18.4(b)(3), (c)(3) (2019).
[20] N.C. Gen. Stat. § 14-18.4(b)(4), (c)(4) (2019). If they acted with malice, presumably they would be charged with murder instead.
[21] N.C. Gen. Stat. § 14-18.4(c)(4) (2019).
[22] N.C. Gen. Stat. § 90-95(b) (2019) (depending on what schedule the drug is on).
[23] N.C. Gen. Stat. § 14-18.4(h) (2019) (criminalizing death by distribution as a Class C felony and aggravated death by distribution as a Class B2 felony).
[24] Jamie Peck, Why Heroin Addicts Are Being Charged With Murder, Rolling Stone (Aug. 2, 2018), https://www.rollingstone.com/culture/culture-features/heroin-opioid-addicts-charged-with-murder-o-d-703242/.
[25] Valena E. Beety et al., Drug-Induced Homicide: Challenges and Strategies in Criminal Defense, 70 S.C. L. Rev. 707, 709 (2019).
[26] N.C. Gen. Stat. § 14-18.4(d) (2019).
[27] Beety et al., supra note 25.
[28] Id.; see Peck, supra note 24.
[29] NIH, supra note 1.
[30] This may be intentional, however, as the STOP Act of 2017 explicitly targeted legally prescribed opioids and tightened how they are to be prescribed by pharmacists and physicians; the electronic prescription requirement of the act came into effect just this year. Bill Summary, N.C. Medical Board, https://www.ncmedboard.org/images/uploads/article_images/The_STOP_Act_summary-OnLetterhead.pdf (last revised June 30, 2017).
[31] Hailey Varner, Note, Chasing the Deadly Dragon: How the Opioid Crisis in the United States Is Impacting the Enforcement of Drug-Induced Homicide Statutes, 19 U. Ill. L. Rev. 1799, 1824 (2019).
[32] Alex Kreit, Drug Enforcement & Health Policy in Today’s Epidemic: The Opioid Crisis and the Drug War at the Crossroads, 80 Ohio St. L.J. 887, 896–97 (2019).
[33] N.C. Gen. Stat. § 14-18.4(b)(3), (c)(3) (2019).
[34] Beety et al., supra note 25, at 725–27 (explaining the effect of proximate cause and intervening cause doctrine on drug-induced homicide charges).
[35] Kreit, supra note 32, at 897 (noting that at least one federal district court judge stated that suicide through heroin overdose met a death by homicide statute’s terms, which did not have a proximate cause element).
[36] LSD is not covered by the Death by distribution statute.
[37] N.C. Gen. Stat. § 14-18.4(b)(2), (c)(2) (2019).
[38] According to some commentators, the point of these kinds of laws isn’t even to prosecute them; they’re just a scare tactic to force caught dealers into a plea agreement. Beety, supra note 7, at 758–59.
