Addiction does not discriminate. In the United States, drug overdose deaths are at an all-time high and affect people of all races, socioeconomic status, and ages. From 1999 to 2014, the total number of overdose deaths nation-wide nearly tripled and this number only continues to rise. In 2015, the Center for Disease Control (“CDC”), reported that more than 52,000 people died of a drug overdose. In 2016, the national total reached 63,600 overdose deaths, and in 2017, the number increased to 72,000.
As overdose deaths continue to rise, states have adopted new crimes called drug-induced homicide—a crime that may result in life in prison if convicted in certain jurisdictions. Prosecutors have increasingly used these laws to hold responsible anyone in the chain of distribution of the very drugs that led to an overdose— including friends and family who may have simply shared the drugs with the overdose victim without earning any profit.
On August 10th, 2014 Amy Shemberger of Illinois purchased some heroin for herself and her longtime boyfriend, Peter Kucinski. That night, Peter fatally overdosed from the heroin, and although Amy was fortunate enough not to overdose, her life too came to a similarly tragic end. Amy was charged with drug-induced homicide because she had delivered the fatal dose of heroin. She pled guilty and received seven years in prison. The maximum possible sentence could have been thirty-years if she had gone to trial.
These two people were not strangers or dealer and buyer. In fact, the couple met in the 8th grade. Peter was a long-time heroin and cocaine addict and an alcoholic. Amy did not suffer from addiction until a few years earlier, when she was overprescribed opioids by her doctor for a back injury. Amy did not ever sell drugs of any kind, and simply purchased enough heroin for herself and Peter to share on the night of his overdose death.
Despite these sympathetic facts, in Illinois anyone in the chain of delivery is culpable for the crime of drug-induced homicide even if they did not make a monetary profit. Legally, drug-induced homicide is defined as the act of delivering drugs which results in the death of another. Delivery is defined as the actual, constructive, or attempted transfer of possession of a controlled substance with or without consideration.
Today, twenty states have drug-induced homicide statutes and prosecutors have used them more aggressively in recent years. For example, in 2010 the total number of prosecutions was 71 nation-wide but in 2017, that number grew ten-fold, totaling 730 prosecutions.
The earliest versions of these statutes were passed in the 1980’s during the War on Drugs in an effort to crack down on “traditional” dealers, the people who profit from the sale of drugs. The hope was that harsh homicide penalties for overdose deaths would deter people from selling drugs. Today, however, prosecutions like Amy’s happen all too often under the statutes. In fact, 50% of the time, the person prosecuted for drug-induced homicide is not a “traditional” drug dealer, but rather is the caretaker, family, friend or partner of the overdose victim who delivered the drug.
How are such prosecutions possible? States like Illinois are broadly construing the terms of their statutes and charging all people involved in the drug manufacturing, distribution, and obtainment process. The State Attorney in Kane County, Illinois, has explained that delivery can mean buying drugs, administering the dose, handing someone drugs, or even driving the car to get the drugs because the statute by design includes "a lot of different things." The U.S. Attorney for the Southern District of Illinois emphasized that “[y]ou’ll be treated as a drug dealer, prosecuted as a drug dealer and may spend the rest of your life in prison,” even if the overdose victim was a friend and no money was involved.
These statutes should not be thrown out but instead drug-induced homicide statutes should be applied narrowly so that only traditional drug dealers are prosecuted. An example of the narrow approach occurs in Vermont. There the statute is targeted “at the entrepreneurial drug dealers who traffic in large amounts of illegal drugs for profit.” Only drug dealers who profit have been prosecuted pursuant to the statute, while the friends, family members, and partners of the overdose victim who may have purchased or delivered the drug without profit remain free of charge and conviction.
The impact of a broad versus narrow approach is significant even in terms of counteracting the opioid crisis in America. As of 2018, Illinois has applied its drug-induced homicide statute 269 times since its implementation in 1989. Yet, in Illinois overdose deaths from 2013-2017 increased from 1,579 to 2,779. Vermont’s statue has only been applied eleven times total since its enactment in 2003 and from 2013-2017, overdose death rates increased from 105 to 124. While overdose rates increased in both states, the importance is the statistical significance per capita. According to the CDC, in recent years Illinois experienced a statistically significant 14.3% increase in overdose death rates per capita, while Vermont’s 4.5% increase was statistically insignificant considering its population. To put this into perspective, Illinois has charged people 25x more under its drug-induced homicide statute than Vermont and still continues to see a more dramatic increase in overdose deaths per capita.
Overall, the harsh penalties imposed by broad drug-induced homicide statutes fall far short of deterring drug use or sale. Instead, the friends, family, and partners of the overdose victims who delivered the drug without profit unjustly face significant time in prison and possibly even life in prison. To prevent these injustices, a legislative change is necessary. Specifically, lawmakers around the country should include “for profit” in the text of their drug-induced homicide statutes. As a result, only the traditional drug dealers will be prosecuted. Our nation’s drug epidemic is tragic, but prosecuting loved-ones certainly creates yet another tragic, gross injustice in our criminal justice system.