Monday Morning Thoughts: Prosecuting Overdoses As Murder Likely to Make the Problem Worse Policy Experts Believe

By David M. Greenwald
Executive Editor

San Francisco, CA – San Francisco appointed DA Brooke Jenkins seems to believe that she can succeed where others have failed by reinstituting the war on drugs.

Last week, SF Public Defender Mano Raju along with drug policy experts pushed back against the notion that enforcement and incarceration were the key to reducing drug problems in San Francisco – and elsewhere.  Instead they pushed for evidence based approaches such as harm reduction policies as a means to treat substance use disorders.

In late September, Jenkins said that she would seek to convict accused drug traffickers with murder if their product is linked to an overdose death.

“Since 2020, nearly 1,700 people (in San Francisco) have died of drug overdose, mostly from fentanyl, in part because dealers have been allowed to operate with impunity for over two years,” Jenkins said in a statement.

I asked the policy experts about the practice of drug-induced homicide.  This refers “to the crime of delivering drugs that result in a death.”

The laws originated out of the 1980s war on drugs.  At the time, the state and federal government passed laws that would criminalize people who provided drugs that led to overdose deaths – even if accidental – with the equivalent of murder and manslaughter charges.

One report notes, “For the first few decades, these laws were rarely used by police or prosecutors, but steadily increasing rates of drug overdose deaths across the country have led police and prosecutors to revive them.”

Norma Palacios, policy coordinator at the Drug Policy Alliance, explained that DPA in 2018 released a report on this issue and the findings of that report show that “these laws are counter-productive to reducing drug use and drug availability.”

Rather, she said, “it minimizes the chance that a person would call 911 in the case of someone experiencing an overdose.”

Moreover, she warned, “this type of enforcement also disproportionately impacts communities of color.”

In a follow up statement, policies noted, “The findings of this report demonstrate that these laws do not deter drug use or sales because drug markets are driven by demand. These laws are disruptive to the public health approach.”

In fact, the very reason many communities and states passed Good Samaritan laws was to encourage people to call 911 and ask for help without fear of putting themselves in harms way of law enforcement.

“There types of policies cause a chilling effect,” she explained.  “People who could save lives are unlikely to call 911 if they fear being charged with murder or manslaughter.”

Palacios continued, “We are in the middle of a tragic increase in drug overdose deaths in San Francisco and across the state. Hundreds of people have died from a preventable drug overdose and we must implement evidence-based solutions that help individuals, families, and communities heal and that prevent additional avoidable deaths, such as overdose prevention programs, drug checking services, and rebuilding a voluntary treatment infrastructure.”

DPA’s report notes, “Prosecutors and legislators claim harsh penalties for drug-induced homicide will deter drug selling, and thus reduce drug use.”

Their report finds however, “research consistently shows that neither increased arrests nor increased severity of criminal punishment for drug law violations results in less use (demand) or sales (supply). In other words, punitive sentences for drug offenses have no deterrent effect.”

Moreover, who gets targeted is also questionable.

DPA writes, “Police and prosecutors widely abuse their discretion in investigating and prosecuting drug-induced homicide cases. They often promise to go after high-level drug manufacturers and distributors, but that rarely happens.”

However, “The vast majority of charges are sought against those in the best positions to seek medical assistance for overdose victims—family, friends, acquaintances, and people who sell small amounts of drugs, often to support their own drug dependence.”

As noted above, this actually causes more harm than good by discouraging people from seeking medical attention when they are in distress.

A peer-reviewed study from Leo Belesky et al, bears that out.

The researchers looked at overdose death data from 2000 to 2017 from the CDC, and estimate the risk of drug overdose deaths in the 50 states while controlling for policy interventions.

They find, “We estimate that an increase in media coverage of DIH prosecutions is associated with an approximately 7.7% increase in overdose deaths. Further analysis suggests that in the states analyzed, there was a total of approximately 32,000 deaths attributable to DIH prosecutions in the 17 years.”

The analysis suggests that “DIH prosecutions may actually aggravate the crisis they are purported to solve.”

Another study from Northeastern University compiled news reports of “drug-induced homicide.”

They found, “In contrast to the stated intent to target major drug traffickers, our preliminary analysis found that a majority of prosecutions are being brought against individuals who are either low-level dealers, or are friends, family, and co-users of the overdose decedent.”

Furthermore, they found no systematic empirical evidence that these prosecution slow the sale of illegal drugs.

In fact, along the same lines as DPA, they find, “they may well be counterproductive. Running at cross-purposes to 9-1-1 Good Samaritan laws, DIH prosecutions discourage witnesses to overdoses from calling 9-1-1 for fear that they will be arrested and charged with DIH or other serious crimes.”

They also found that those who are incarcerated for and suffer from opioid addiction, “there is an exponentially increased likelihood of death from overdose during the first weeks after release.”

Dr. Randolph Holmes, medical director of the Los Angeles Centers for Alcohol and Drug Abuse warned, “There’s a very high risk of people in incarceration overdosing when they get out, because they’re relatively naïve to opiates – they haven’t used them in awhile.”

Laura Thomas, Director of HIV & Harm Reduction Policy with SF AIDS Foundation agreed “as San Francisco moves forward with increased policing and criminalization, that those things are going to make the overdose crisis worse.”

She said, “We know what does address and prevent overdose fatalities. And that’s where the people in the harm reduction world have the tools, as opposed to the criminal legal system. We need to disinvest in what doesn’t work, and that’s the criminal legal system.”

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