POLICING THE USA

In overdose deaths, should homicide charges be filed? These officials say no.

In many cases, it is family members or close friends who are charged with DIH, not high-level traffickers.

Laura Conover, Miriam Aroni Krinsky and Leo Beletsky
Opinion contributors

On Aug. 31, 2018, Heather Crimaldi asked her brother Christopher to buy her heroin in McHenry County, Illinois. While under the influence that night, Heather fell in the shower at his apartment and died. Christopher was taken into custody. Now, nearly four years later, he has been convicted of drug-induced homicide (DIH) and sentenced to six years in prison, despite having advanced cancer. He says he only has a few months to live.

The Crimaldi family exemplifies the cruelty and futility of drug-induced homicide convictions. Christopher is “tormented” by his sister’s death, according to their mother, who is quoted in the Northwest Herald stating, “I lost my daughter. Now I am losing my son.” Both siblings struggled with substance use; tough-on-crime drug policies didn't change that.

Illinois' Good Samaritan Law didn't save Christopher Crimaldi, who called 911 when he found his sister. While the state’s statute was expanded in 2021 and now protects individuals who seek medical help during an overdose from drug-induced homicide charges, the amendment was not applied retroactively. But incidents like this clearly show the need for prosecutors to help those with substance use disorders instead of pushing for incarceration. 

Fatal drug overdoses on the rise 

In the United States, fatal drug overdoses increased by 539% between 1999 and 2021, a crisis that has only been exacerbated by the COVID-19 pandemic. 

Last year, more than 107,000 Americans died of drug overdoses, the highest ever in a 12-month period and more than the fatalities from car crashes and gunshots combined.

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As overdoses have climbed, too many elected leaders have defaulted to ineffective and costly tough-on-crime responses. This includes drug-induced homicide laws and prosecutions, which reframe accidental overdoses as homicides.

An epidemic is ravaging every community in the United States, and it isn't a virus brought to these shores from another country. That epidemic is the disease of fatal overdoses by illicit drugs and prescription opioids.

Drug-induced homicide prosecutions involve charging individuals with homicide when they supply drugs that result in a fatal overdose, even if there was no specific intent to kill. Originally introduced in the 1980s, these homicide laws have become more popular and expanded to 23 states, Washington, D.C., and the federal system.

Advocates for these statutes argue that drug-induced homicide laws target high-level distributors, hold drug manufacturers accountable and deter trafficking. In practice, however, DIH prosecutions often stray from their stated intent and do more harm than good, exacerbating the tragedy of overdoses in the United States. 

Call for help or risk getting prosecuted

Drug-induced homicide statutes force people into the unimaginable situation of deciding whether to call for help and risk prosecution for homicide or allow their friend or loved one to die of an overdose.

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While 47 states and Washington, D.C., have Good Samaritan Laws granting immunity from prosecution to individuals who call for medical assistance in an overdose emergency, most provide protection only from low-level drug charges such as possession. Delaware, Illinois, Rhode Island and Vermont offer immunity from drug-induced homicide charges if a person tries to get help during an overdose – but those states are among the exceptions and not the rule. 

Fatal drug overdoses in the United States increased by 539% between 1999 and 2021.

Discouraging people from seeking assistance in the midst of a crisis is a dangerous and deadly policy choice. Indeed, one study found that more media attention on these homicide prosecutions was associated with an increase in overdose deaths, underscoring that these prosecutions could aggravate the crisis they purport to address.

Evidence-based drug policies that save lives

In many cases, it is family members or close friends who are charged with DIH, not high-level traffickers. Like Christopher Crimaldi, these individuals commonly struggle with substance use themselves. These prosecutions can tear families apart after they’ve already suffered an unthinkable loss.

There is also no evidence that punitive drug laws have any impact on demand or use of drugs. A Pew analysis found that there was no relationship between higher rates of drug imprisonment and lower levels of drug use or overdose deaths.

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In the United States, the rate of incarceration surpasses that of many other nations. And we have a far higher overdose death rate than many peer nations. Harsher sentencing has cost millions in taxpayer dollars while doing nothing to address and prevent problematic drug use.

Drug-induced homicide laws also divert limited resources from investigating and prosecuting serious crimes without providing any public safety benefit. A county in Ohio reported spending at least $750,000 a year on drug-induced homicide cases while overdose deaths in that county went up drastically over a four-year period ending in 2016.

And like nearly every aspect of the criminal legal system, DIH prosecutions exacerbate racial disparities, with people of color tending to receive longer sentences for DIH convictions than white individuals.

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As long as these laws are still on the books, elected prosecutors have the power to choose a different paradigm. They can embrace a public health response and harm reduction approaches over punitive carceral responses. Most important, they should not charge individuals who supply drugs that lead to an accidental fatal overdose with homicide, either through drug-induced homicide or felony murder statutes, and they should seek to remedy past DIH cases with unjust results.

Prosecutors must also decline to prosecute cases involving possession or distribution of lifesaving medications like naloxone and low-level drug possession, and advocate for proven harm reduction strategies – including medication-assisted treatment and overdose prevention sites.

We have already lost too many lives these past few years. Now it’s time for our elected leaders to implement evidence-based drug policies that save lives. Thoughtful strategies to address our overdose crisis are needed, and they do not include simply putting more people behind bars.

Laura Conover is the county attorney in Pima County (Tucson), Arizona. Miriam Aroni Krinsky, a former federal prosecutor, is the executive director of Fair and Just Prosecution, which recently published an issue brief on ending drug-induced homicide prosecutions. Leo Beletsky is a professor of law and health sciences and the faculty director of Northeastern University School of Law’s Health in Justice Action Lab.

This column is part of a series by USA TODAY Opinion about police accountability and building safer communities. The project began in 2021 by examining qualified immunity and continues in 2022 by examining various ways to improve law enforcement. The project is made possible in part by a grant from Stand Together, which does not provide editorial input.