No Intent to Kill: The Recent Trend of Overdose Prosecutions

One of the best-selling music artists of all time, Prince, recently died after taking fake Vicodin laced with fentanyl. An icon of artistry and individuality, Prince’s opioid-related death sent shock waves across the world. Charges were not filed in relation to his death because law enforcement could not determine who provided Prince with the drugs. Prosecutors across the nation are adding “overdose prosecutions” into their arsenal to combat the rise of overdose deaths.

Across the Country, Overdose Deaths Are Mounting.

The Centers for Disease Control and Prevention (“CDC”) reported that in 2016, drug overdoses killed 63,632 Americans. CDC Principal Deputy Director Anne Schuchat notes that, “No area of the United States is exempt from this epidemic—we all know a friend, family member, or loved one devastated by opioids.” See here.

In Southwest Missouri, Overdose Deaths Are Skyrocketing.

Greene County, Missouri has one of the highest rates of death due to opioid overdoses in the state. The numbers are staggering: the opioid-involved mortality rate is 11.98 per 100,000. Just miles away, in Christian County, the numbers drop to half of Greene County’s rate, at 6.82 per 100,000. But this still places Christian County in one of the at-risk categories for high opioid mortality rates. See here.

Prosecutors Are Filing Charges to Hold Someone Criminally Responsible.

In West Virginia, a woman woke up after a day of drug use to find her girlfriend’s lips blue and her body limp. In Florida, a man and his girlfriend bought what they thought was heroin, but turned out to be fentanyl, which was more potent. She overdosed and died. In Minnesota, a woman who shared a fentanyl patch with her finance woke up after an overdose to find that he had not survived.

All were charged with murder. So-called “overdose prosecutions” are controversial because none of the survivors intended to cause a death. Nonetheless, such cases are becoming increasingly common.

There are two basic options for prosecuting these cases. First is the use of the existing statutory structure, which is often referred to as the “felony murder rule.” A felony murder statute allows the prosecutor to charge an offense which requires no specific mental state other than that required for the enumerated offense. Here, all that the prosecution needs to prove is that the person committed a drug transaction and a death resulted from the use of the drugs transacted. Case closed. Murder conviction sealed.

Second, state legislatures can create a specific offense of death resulting from the distribution of controlled substances. These statutes are crafted as stand-alone felonies rather than being included into existing murder or other statutes. New Hampshire and New Jersey both adopted such “drug-induced homicide” statutes and define the offense as being one of strict liability. Pennsylvania’s statute applies to any controlled substance and provides that delivery must be intentional. Delaware has imposed a minimum weight to trigger the application of the statute.

Source.

It remains to be seen how the changes across the country are going to effect prosecutions here in Missouri.  Given the trends noted above, we expect to start seeing more murder charges for those who deal drugs in the future.  It will be interesting to see if there is any deterrent effect as a result…stay tuned!