The trend is clear. Prosecutors are charging people who “deal” drugs with murder when the end user dies from an overdose. It may be the drug dealer on the street corner, or the user who shared drugs with another. In the scheme of drug law, it’s all the same.  Whether you give someone drugs for money or just share, it’s distribution as far as the law is concerned. And if they end up dead, you did it.

Doug Berman notes an AP article about this trend toward prosecuting overdoses as murders.

“We need to send that message that you can’t sell things that are the functional equivalent of poison,” says New Hampshire Attorney General Joseph Foster, whose state has witnessed an explosion in drug-related deaths in recent years….

Some might reply, that’s why the sale of illegal drugs is, well, illegal. But then, there have been a rash of overdoses, according to law enforcement, which means the hammer used to beat the nail isn’t big enough. We must have a bigger hammer.

Curiously, Doug finds this a not-entirely-crazy trend.

I agree with the statement by the public defender that the “ultimate responsibility” for an overdose death lies with the drug user not the drug dealer. But, especially as the number of these OD deaths are skyrocketing and drug dealers are seemingly not deterred from selling deadly drugs even when customers end up dead, it is not obvious to me that prosecuting dealers for homicide really is “counterproductive” or that it will not have some beneficial deterrent impact.

One reason I am generally supportive of marijuana reform and often troubled by long mandatory minimum sentencing terms for drug trafficking is because I dislike the nanny-state paternalism I see in decisions to criminalize and severely punish behaviors that do not obviously inflict serious harms upon innocent victims.   But if and when drug dealers (whether on street corners or Big Pharma corner offices) are profiting from knowingly and recklessly selling a product that is regularly killing purchasers, my disaffinity for criminalization and significant punishment fades.

Connecting drug dealers on street corners with Big Pharma tends only to confuse issues. It’s not that Big Pharma doesn’t raise issues, but that they’re not the same issues as street dealers. So putting Big Pharma aside (this is my way of saying that it’s not the topic of this post, so don’t leave comments about your deepest thoughts on Big Pharma), is it rational to prosecute the source of drugs, whether for money or otherwise, for murder when a user ODs?

Doug’s argument is that it may be, since “OD deaths are skyrocketing and drug dealers are seemingly not deterred from selling deadly drugs even when customers end up dead.”  Of course, drug dealers haven’t been deterred from selling “deadly” drugs, with deadly in scare quotes to distinguish them based on outcome versus effect, since the War on Drugs began. Sentences have long been draconian, often as severe as murder, and dealers still sell drugs.

With a murder charge, those states that still employ capital punishment may put the killer drug dealer to death, which is a harsher penalty than life in prison, but is that meant to suggest that capital punishment, which wasn’t a good thing yesterday, is now good, but only for drug dealers whose users OD?

More importantly, there are significant distinctions between a killer who points a gun, pulls the trigger, and shoots a bullet into another person’s head, and someone who sells, or shares, heroin. While the latter obviously doesn’t intend to kill, there is an intervening event that results in death, that the user has chosen (though, one may well argue, an addict doesn’t choose to be an addict) to use illegal drugs, and has used them in a manner that causes death.

But this isn’t an issue of intentional murder. Rather it’s “knowingly and recklessly” selling a drug, which is “regularly killing purchasers.”  How regularly isn’t nearly as clear as Doug suggests. While deaths are increasing, as a percentage of drug use, they remain relatively minuscule. The vast majority of drug users live to use again, even if more are dying now than before.

Death is an outcome, not a cause. There is no difference in the conduct of the drug dealer who sells drugs to a user who lives than one who dies, unless the dealer is selling “bad” bad drugs, meaning drugs outside the norm of their inherent harm. That gives rise to a different problem again, but isn’t the issue raised here.

Then again, outcomes are typically used as an aggravating factor in crime. Shoot a person who lives, and you have anything from an assault to an attempted murder, but the punishment will invariably be less than a completed murder. That the bullet missed the victim’s head isn’t a reflection of lesser culpability, but bad aim. Is that worthy of a reduced sentence?

With the sale of drugs, however, there is an attenuation issue, that the sale and use of drugs does not have a direct correlation with death or serious physical injury in the same sense that a bullet does. Junkies get high. That’s kind of the point of using drugs. And when the drugs are gone, or they stop using drugs, they stop getting high. That’s how drugs work.

The aspect that seems to give rise to Doug’s ambivalence is the severity of the harm now happening, that there are too many people dying from overdose, so something has to be done. A message has to be sent. Does prosecuting dealers for murder based on an outcome beyond their control do the trick?

Aside from the unintended consequences, such as leaving an overdosing user to die rather than help save a life and risk a murder prosecution, the government has tried to “send a message” to win the War on Drugs for a few generations now. It hasn’t worked. It’s gotten worse. Neither screaming the message louder nor beating the nail with a bigger hammer will change the outcome.

Nobody wants to see users die from overdoses. But just because we want to “do something” doesn’t mean that failed solutions will suddenly work because we really, really want them to. Doug’s ambivalence is understandable. This just isn’t the solution.