Mind and Body

Is a drug overdose murder?

Legislators grapple with the legal definitions of crime when it comes to drug overdoses

Photo by Annajane Yolken

A number of Rhode Islanders testified, pro and con, on April 26 at a hearing before the Senate Judiciary Committee about proposed legislation that would make deaths from overdoses caused by illicit drugs a crime punishable by a potential life sentence to those who had provided the illicit drugs. Nick Horton from Open Doors is shown testifying.

By Annajane Yolken
Posted 4/30/18
The R.I. Senate Judiciary Committee recently heard testimony that sought to define legal liability in proposed legislation regarding “drug-induced” homicides.
When will fentanyl testing strips be made available as part of a harm reduction strategy in Rhode Island? What would be the legal costs of prosecuting drug overdoses as homicides? Could physicians be held liable under the law for excessive dispensing illicit prescription painkillers to an overdose victim? What measures can the federal government take to interdict the supply of fentanyl from China and Mexico? At what point will the state engage in public conversation around the diseases of despair related to deaths from drugs, alcohol and suicide?
Just as the introduction of the pain scale as a way of measuring health ushered in the prescription painkiller epidemic in the early 1990s, the push to increase screening for depression as part of integrated approach to mental health and behavioral health should create some warning signs when it comes to potential over-prescribing practices of new anti-depression drugs. While pain medicine and anti-depressants have numerous, proven medical benefits, the larger issue around screening for depression is this: what kinds of interventions are available for patients? For instance, the new efforts for screening for maternal depression, and the coordinated programs at Women & Infants have achieved good results to date, offer integrated interventions for mothers and their newborns. So do the programs at Butler Hospital and Bradley Hospital, but they take time, money and investment.

PROVIDENCE – The epidemic of overdose deaths, with some 323 in 2017 and 336 in 2016, continues to be the top public health crisis in Rhode Island, despite the best efforts by community members, legislators, law enforcement and elected officials to intervene and prevent such deaths from occurring and to promote recovery and treatment.

In the past five years, more than 1,400 Rhode Islanders have died from an overdose – sons, daughters, parents, friends, and partners – each with a unique story and a complex set of factors, every death resulting in a world of grief that accompanies such a loss.

But who is legally responsible for an overdose death?

That was the question before members of the R.I. Senate Judiciary Committee on April 26, when legislators heard testimony on the proposed bill known as Kristen’s Law [H7715/S2279].

This “drug-induced homicide” bill, which was introduced by R.I. Attorney General Peter Kilmartin, would give a mandatory life sentence to anyone who sells an illicit substance that leads to a fatal overdose.

The bill is named after Kristen Coutu, who died of an overdose in 2014 after she took illicit drugs containing fentanyl, a synthetic opioid that is at least 50 times more powerful than heroin. She was 29 years old at the time of her death.

In 2017, Aaron Andrade, who had sold Coutu the drugs on which she had overdosed, pleaded guilty to second-degree murder and received a 40-year prison sentence, with 20 years to serve.

Both sides heard
During two hours of testimony at the April 26 hearing, members of the Senate Judiciary Committee heard passionate arguments, pro and con, on Kristen’s Law, about whether or not to define an overdose as murder.

In its testimony in favor of the law, the R.I. Attorney General’s office spoke about the high prevalence of fentanyl in the illicit drug supply in Rhode Island, arguing that the proposed legislation was necessary to serve as a deterrence to the use of fentanyl in the state, especially given the high profitability of the sale of this drug.

Also speaking in favor of the bill was Suzanne Coutu, Kristen’s mom, who provided the devastating story of her loss, saying that no one will call her mom again.

However, most of the testimony was in opposition to this proposed legislation, which people said would be ineffective, unnecessary, unfair, and costly.

Opponents speaking against the legislation included: the ACLU, RICARES, Direct Action for Rights and Equality, the National Lawyers Guild, Open Doors, Preventing Overdose and Naloxone Intervention (PONI), Protect Families First, the Rhode Island Users Union, and several individuals – including a father who had lost two children to overdoses in the past year, and a journalist who studies this issue.

The R.I. Medical Society and the Mental Health Association of Rhode Island submitted a letter in opposition, and the Center for Prisoner Health and Human Rights submitted a letter signed by 22 doctors and public health professionals.

My personal testimony
During my testimony on behalf of Protect Families First, I spoke about my friend Elisif, who had died of a drug overdose after her friend Sean sent her heroin and cocaine in the mail while she was in rehab.

When law enforcement tried to charge Sean with murder, Elisif’s family saw this was unjust. Sean was a friend of Elisif’s, and a person who was also struggling with substance use disorder. Elisif’s family saw that Sean was dealing with the same problems their daughter had been and came to Sean’s defense in the legal process, building a relationship with him and his family.

Elisif’s father told me: “Parents who lose children to opioids have more in common with parents of children who sell opioids to those who die than not – and in that common experience, we find healing in coming together rather than blaming when what we’re talking about is behaviors symptomatic of unwellness, not criminality.”

No evidence that such laws work
Dan Denvir, a journalist who has written about the effect of drug-induced homicide laws, testified that there is absolutely no evidence from other states with these laws in place that they had proven effective at preventing drug use, drug sales, or overdose deaths.

A member of the Users Union testified that in a black market, products go through so many different hands: it is impossible to know who to hold accountable for an overdose, especially when most of the opioids coming into Rhode Island already contain fentanyl.

Very often, the member of the Users Union continued, people sell or trade drugs to support their own habit and do not know what they are selling.

Concern over Good Samaritan law
A number of opponents also noted their concern that this law would undo progress made with the Good Samaritan law, which protects people from being arrested if they call 911 for an overdose.

Some testified that Kristen’s law would make people very hesitant to call 911 if they are someone who had sold someone drugs for fear of a life sentence. Even if Good Samaritan protections were to be written to the law, people may not understand or remember this in a moment of crisis given the high consequences.

Michelle McKenzie from the PONI program testified about how much work has gone into making more people comfortable in calling 911 in the event of an overdose, rising from about 33 percent to 50 percent people calling 911 during an overdose. She argued that we should not step backwards from those efforts to help get people get life-saving care.

Held for further study
Both the House and the Senate version of the bill have been held for further study. The Attorney General’s office said they were going to release a number of amendments to the legislation, including the changes in the wording to make it an up to life sentence, and also making it so that this law would only apply if there were an exchange of goods.

Unlike most other states, Rhode Island saw a decrease in overdose deaths between 2016 and 2017 due to a concerted effort of public health interventions. A number of people testifying said they were encouraged that Rhode Island was continuing to take public health approaches to the overdose epidemic – rather than relying on ineffective, ambiguous, expensive, and harsh measures – in order to save the lives of Rhode Islanders.

Annajane Yolken is the director of Protect Families First.

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