Murder By Empty Words

The trend to reimagine a drug overdose into a murder has been going on for a while. Hysteria takes hold, the word “epidemic” grabs us by our throats and we begin to accept the premise that “something must be done.” But turning the corner from a useful, rational approach to solving a problem to the knee-jerk resort to harsh, unhelpful and carceral responses is just a breathlessly outraged scream away.

When a bullet-riddled body turns up in a gutter, there’s no question that a police investigation will follow. When a person dies of a drug overdose, however, police often dismiss it as a case of self-harm and close the file. That’s a mindset that should change so that victims’ families get justice and so murderers — make no mistake, dealers in fatal overdoses are murderers — get taken off the streets.

“Make no mistake” isn’t an argument. It’s playing your emotions by circumventing reason because someone ends up dead. Any needless dead person is a tragedy, even if it’s death by overdose at the drug user’s own hand. But it’s not even remotely similar to the bullet-riddled body, where someone deliberately cause the death of another person. 

And it may be that the dead person, not necessarily a victim of anyone other than themselves, will leave behind a grieving family. So too does the person killed in a fatal car accident. So too does the person who dies of cancer. Much as we can empathize with their loss, the loss doesn’t give rise to a cry of murder. Tragedy happens. That alone has nothing to do with the tragedy being a murder.

Indeed, police and prosecutors should cast the widest possible net, targeting not only the street-level dealers and prescription-happy doctors who can be linked to specific deaths but the pharmaceutical companies, suppliers and fat-cat executives whose reckless distribution of highly addictive drugs fed the victims’ fatal appetite.

Drug dealing is already illegal, even when the drugs are being sold by doc-owned drug mills. And Big Pharma has made a killing by pushing docs to prescribe opioids. All of which may well be cause for concern, or may have nothing to do with the problem despite the superficial connections that lack anything more than assumptions of causation.

It may be close enough for an insipid demand for investigation and prosecution, but law requires evidence, proof, that someone caused death with the requisite mental state. There may well be other issues at play with regard to Big Pharma, but it’s not murder. Not even when it’s an “epidemic.”

Yet, that hasn’t stopped a push to manufacture murder out of tragedy as a Menckian response.

Murder charges are a powerful tool. Conspiracy and racketeering charges are, too. As Pennsylvania Attorney General Josh Shapiro and his counterparts in 40 other states continue a joint investigation into a handful of drugmakers and distributors, they should aim to bury lawbreakers under an avalanche of criminal and civil penalties.

There’s a good chance that many won’t shed a tear for drugmakers pushing oxy on physicians and their patients, ignoring the unintended consequence that chronic pain-sufferers are being denied solace by docs who fear a beancounter from DEA will drop by. But once the steamroller of prosecution gets rolling, it’s not the guys in suits who get crushed.

Prosecutors, medical examiners and coroners who treat overdoses as homicides serve as models for a justice system that must do more to stem the body count. Beaver County District Attorney David J. Lozier is setting an example by deploying a team, in cooperation with the attorney general’s office, on every fatal overdose. It gathers evidence and tries to identify the dealer and arrange a quick buy in the hope of tying the drug investigators’ purchase to that found in the victim. Allegheny County District Attorney Stephen A. Zappala Jr. has held training sessions for municipal police agencies and provided them a disc with instructions for pursuing drug-related murder cases.

Prosecutors are being taught to treat, to go after, pushers as murderers because we’ve learned nothing from the War on Drugs over the past 40 years, and this time will be different? Drug dealing sentences have long been on par with murder sentences, under the simplistic assumption that ever-longer sentences will deter people from selling drugs. It didn’t work before. It won’t work now. We know it doesn’t work, but so what? Longer, harsher, 50 years, a million years, just keep piling on more and eventually it has to work, right?

Maybe the problem isn’t just that the assumption is fundamentally wrong, but that it hasn’t been sufficiently sold to the public and participants in the system?

To accelerate the process, law enforcement training programs, law schools, victim advocacy groups and other criminal justice organizations should emphasize the importance of treating overdoses as homicides and dealers as potential serial killers.

If only law students are trained to believe that drug dealers are “potential serial killers,” that will finally fix the problem? Certainly victim advocacy groups will grab hold of the outrage to back up the most emotionally appealing, if substantively empty, arguments because of their heartache at the loss. And for the prosecutors who believe they’re the avenging angels of society, ridding it of the blight of demon drugs, every tool that enables them to slay their foes more effectively is welcome, even if it fails to accomplish any actual goal.

This editorial in the Pittsburgh Post-Gazette shows not how to deal with the latest hysteria, but how the empty rhetoric — “serial killers”? Seriously? — of outrage has become the stock in trade of public discourse. Take a few handy adjectives, a carefully chosen epithet and wrap them up with a bow of fallacious logic and you can whip the unduly emotional into a frenzy.

Murder? The word evokes a visceral response. There are dead bodies, and to the intellectually challenged, the mantra “something must be done” is sufficient to justify a completely unhelpful response. The War on Drugs not only failed, but cost dearly in terms of collateral damage.

So let’s make the same mistakes again, because this time the outcome will be different? Yet, many will read an editorial like this and believe it will work, just like they did the first time (and second, and third) we bought the lie that if we just make punishment harsher, the problem will go away.

37 thoughts on “Murder By Empty Words

  1. Terence Roberts

    At the risk of being eviscerated by you for my naïveté (and please excuse me if you have written about it and I overlooked it) is there a solution?

    1. SHG Post author

      It’s heartwarming that you think my skillz mad enough that I can provide “a solution” to society’s intransigent problems. Unfortunately, there is no “a solution,” no less any series of measures that will magically change the problems that have plagued humanity forever. There are palliative measures, such as free, available and effective drug treatment, better education and job training, that will help to reduce systemic problems, but the problems will still happen because people are people, and the law has never been a mechanism that can fix all that people do to themselves.

    2. Skink

      Nope. People die. They do it in all kinds of ways, none of which are preventable by mass edict.

    3. Frank

      I”ll be happy to give you my solution: End the Drugged War. Drugs won, get over it, and let Darwin drive. It’ll be a little rough on EMS and the undertaker for a year or so, but it would be preferable to the dumpster fire we’ve got going on now.

      I have a dream, that one day the Drug War Crimes Tribunal will be erected in an empty field just outside Nuremberg, PA and go into continuous session to deal with all the idiot cops (who can’t tell the difference between marijuana and a variety of legal plants and file civil forfeiture on that basis), prosecutors (who charge and jail on high bond on the basis of a field test with a 50% false positive rate), and judges (who let it happen). They’ll be enough prison space for them once we pardon and release all the non-violent drug “criminals” and absolutely none of this “immunity for actions taking in the line of duty” feldercarb.

      As for the non-licensed bean counters who are scaring trained physicians into not providing adequate pain relief, let’s just say I’m channeling a scene from _Fargo_.

        1. PseudonymousKid

          I want Frank to be in charge and run his extrajudicial kangaroo court. Democracy is great. I don’t know why he brought up prison space, though. We have more than enough rope.

  2. DaveL

    Indeed, police and prosecutors should cast the widest possible net, targeting not only the street-level dealers and prescription-happy doctors who can be linked to specific deaths but the pharmaceutical companies, suppliers and fat-cat executives whose reckless distribution of highly addictive drugs fed the victims’ fatal appetite.

    I actually laughed at this quote. You see, the thing about Really Big Nets is that they’re hard to throw very high. So instead of catching CEOs, you catch a whole lot of poor people of color. Then your Super Xtra-Wide Net catches their girlfriends as accessories, and seizes their mom’s house as an instrumentality.

    1. SHG Post author

      It’s like the cries of “drug kingpins” that rationalized the drug war decades ago, which then ended up with street corner kids and mules in prison forever. It makes for a good story, but the people who end up in prison never seem to match the rhetoric.

  3. Skink

    You’re not in on the joke: these are the same type of people that want to legalize street drugs because addicts don’t belong in prison. Setting aside the positions on that issue, what does the concept of going after the drug makers and dealers add? It isn’t the addict’s fault he’s in prison. He’s an addict, so he doesn’t know better and can’t control himself. It also isn’t the addict’s fault that he’s dead. It can’t be: he’s an addict.

    So the fault is another’s. It’s the answer to all hard questions.

    1. SHG Post author

      That explains the whooshing sound I heard as I wrote this post. It was the joke sailing over my head.

      1. Skink

        Okay, it’s early. My skills aren’t at full throttle. “We aren’t supposed to be in on the joke.”

  4. B. McLeod

    The rationale would seem to extend to all product liability cases. Everyone from the manufacturer of a faulty ignition component, to the car dealer who sells the car and the bank that finances the transaction should be packed off to the pokey.

      1. PseudonymousKid

        My comrade shouldn’t be so loose lipped with his comments. He’s gonna give the plan away. Products liability is the silver bullet we need to finally kill capitalism. Any day now, it has to work.

    1. Patrick Maupin

      You forgot people who have savings accounts. Those accounts provide the money that the bank uses to finance the transaction.

      Then, of course, there are always the companies that provide living wages, and pay enough to allow their employees to open those savings accounts. Not sure why Trump is extolling trickle-down; obviously more taxation would reduce the number of cars bought.

  5. Hunting Guy

    I realize that this is only tangentially related to the post.

    The push to stop the flow of opioids has hurt a lot of innocent people. It has become increasingly difficult for the retired military, police, carpenters, masons and others that beat up and wore out their bodies to get the pain relief they need. Most of this class of people only need one or two pills a day or at night to help them sleep.

    The doctors shift them to less effective drugs, it’s much harder and more time consuming to fill prescriptions and they are unfairly labeled. They have to take drug test to make sure they are using and not selling the drugs. They are less effective in daily life because of the constant pain.

    My solution? Put the prescription process back in the hands of the doctors, keep the politicians out of it and concentrate on the illegal users.

    Not the best answer, but they are throwing the baby out with the bath water with the current actions.

    1. SHG Post author

      There are pill mills. There are legit docs writing scripts for people in chronic pain. Guess which one is most sensitive to the fear of the DEA’s no-knock execution of a search warrant?

  6. Jeffrey Gamso

    Speaking as someone who’s represented folks charged with and convicted of being serial killers in the old-fashioned way . . . .

    And of course, there was the student who was concerned about “cereal killers” and couldn’t quite understand how . . .

    Ah, the hell with it.

    1. SHG Post author

      Breaking: Capt. Crunch isn’t really a captain, and there is no plant that produces “crunchberries.”

      1. Skink

        Both wrong and misses the point–Capt. Crunch has a uniform, so he is a captain. He is also a murdering drug dealer because Captain Jack was a drug dealer. All captains are drug dealers.

        Logic isn’t so hard after all.

        1. Jim Tyre

          I am informed and believe, and based upon such information and belief allege, that Captain America was not a drug dealer.

          And why are only Admirals Rear Admirals? There are no Rear Generals.

            1. B. McLeod

              Generally speaking, all generals are Rear Generals, and the messy stuff at the front gets tended by colonels, majors, captains and lieutenants, plus some thousands of bit players who didn’t merit a commission.

  7. Turk

    It may be close enough for an insipid demand for investigation and prosecution, but law requires evidence, proof, that someone caused death with the requisite mental state.

    It is certainly conceivable to claim negligence or recklessness. Whether such a claim should be handled in the criminal or civil system is, of course, a different question.

    On a parallel track from the civil side — that track being negligence within a supply chain for turning a blind eye to what will happen with the product — NY’s Court of Appeals dealt with that subject dealing with guns in Hamilton v. Baretta back in 2001. While the case was lost by the plaintiffs (and subsequent federal case law would affect such claims today anyway), the Court did lay out a path to liability with negligent entrustment.

    Murder? Nope. But is accountability possible somehow based on negligence? Perhaps.

      1. Turk

        I will leave it to those smarter than I to discuss how establishing negligence or recklessness, which is possible, might translate to potential criminal liability.

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