Drug-induced homicide laws and false beliefs about drug distributors: three myths that are leaving prosecutors misinformed

• Author: Taleed El-Sabawi, Jennifer J. Carroll, and Morgan Godvin
• Position: Assistant Professor of Law, Florida International University, College of Law/Assistant Professor of Anthropology, North Carolina State University/Fellow, Heath in Justice Action Lab, Northeastern University
• Pages: 1381-1401

ARTICLES

DRUG-INDUCED HOMICIDE LAWS AND FALSE BELIEFS ABOUT

DRUG DISTRIBUTORS: THREE MYTHS THAT ARE LEAVING

PROSECUTORS MISINFORMED

Taleed El-Sabawi*, Jennifer J. Carroll**, and Morgan Godvin***

ABSTRACT

An increasing number of criminal legal system actors, including some prosecu-

tors, have acknowledged that the so-called “overdose crisis” is a public health

problem. Despite this narrative shift, some prosecutors are responding to local

overdoses by charging persons who distribute drugs that are linked to a subse-

quent death with criminal killing. These charges are brought either through the

use of existing, non-specific statutes or so-called drug-induced homicide

(“DIH”) statutes, which explicitly criminalize the act of delivering a substance

subsequently associated with a death. In this Article, we outline three salient

themes that have emerged from early literature and from preliminary surveys

exploring prosecutors’ perceptions of and justifications for filing DIH charges. In

doing so, we provide empirical evidence to suggest that these narratives are

based on myths about drugs and the people who use and distribute them—myths

that are not supported, and are sometimes contradicted by, scientific research.

This Article aims to dispel some of these pervasive yet unsound narratives con-

tributing to the prosecutorial belief that DIH prosecutions have the capacity to

improve public health and reduce overdose. In doing so, this Article also pro-

vides prosecutors with an alternative framework for more accurately conceptual-

izing how prosecutorial action against people who use and distribute drugs

impacts the health and well-being of the entire community—including persons

who use drugs. Finally, this Article also elucidates how well-intentioned prosecu-

tors may be unwittingly causing more fatal overdoses by discouraging calls to

911 during an overdose emergency and by disrupting local drug markets in ways

that directly increase the risk of overdose.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1382

* Assistant Professor of Law, Florida International University, College of Law. Sincerest thanks to Professors

Maybell Romero and Justin Erwin and to the American Criminal Law Review for organizing the 2022 Annual

Symposium: Reform-Minded Prosecution. We would also like to thank Cameron Moody for his research

assistance. © 2023, Taleed El-Sabawi, Jennifer J. Carroll, and Morgan Godvin.

** Assistant Professor of Anthropology, North Carolina State University.

*** Fellow, Heath in Justice Action Lab, Northeastern University.

1381

I. THE MISTAKEN BELIEFS UNDERLYING THE NARRATIVES . . . . . . . . . . . . . . 1386

A. Myth #1: Harsh Criminal Penalties, Like Those for Homicide,

Deter Illicit Drug Use and Drug Distribution—Including

Distribution of Illicitly-Manufactured Fentanyl—Which, in Turn,

Decrease Overdose Deaths and Other Harmful Behaviors . . . . . 1387

B. Myth #2: Seizing Drugs and Removing a Person Who

Distributes Drugs from the Drug Market Will Decrease the

Drug Supply, and Decreasing Drug Availability Will Decrease

Overdose Deaths . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1391

C. Myth #3: People Who Use Drugs Need Protection from People

Who Distribute Drugs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1393

1. Myth #3(a): People Who Use Drugs and People Who Distribute

Drugs Are Two Mutually Exclusive Categories. . . . . . . . . . . 1393

2. Myth #3(b): People Who Use Drugs Are Helpless and Are

Physically or Psychologically Incapable of Stopping Their Use,

Which Makes All Drug Distribution Inherently Harmful . . . . 1395

3. Myth #3(c): People Who Distribute Drugs Are Poisoning the

Drug Supply and Causing More Overdose Deaths . . . . . . . 1397

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1400

INTRODUCTION

Nearly 108,000 people in the United States are estimated to have died of a drug

overdose in 2021—a fifteen percent increase over 2020

1

U.S. Overdose Deaths in 2021 Increased Half as Much as in 2020 - But Are Still Up 15%, CTRS. FOR

DISEASE CONTROL AND PREVENTION (May 11, 2022), https://www.cdc.gov/nchs/pressroom/nchs_press_releases/

2022/202205.htm. For the primary source of data that this press release was based on, see F.B. Ahmad, Y.

Chong, J.A. Cisewski, J.M. Keralis, A. Lipphardt, L.M. Rossen & P. Sutton, Provisional Drug Overdose Death

Counts, CTRS. FOR DISEASE CONTROL AND PREVENTION (Feb. 15, 2023), https://www.cdc.gov/nchs/nvss/vsrr/

drug-overdose-data.htm.

and the largest number of

persons to die from overdoses in the years tracked by the National Center for

Health Statistics.

2

Overdose rates among non-Hispanic Black persons and

American Indian/Alaska Native (“AI/AN”) persons have skyrocketed, rising forty-

four percent and thirty-nine percent, respectively, between 2019 and 2020.

3

Mbabazi Kariisa, Nicole L. Davis, Sagar Kumar, Puja Seth, Christine L. Mattson, Farnaz Chowdhury &

Christopher M. Jones, Vital Signs: Drug Overdose Deaths, by Selected Sociodemographic and Social

Determinants of Health Characteristics—25 States and the District of Columbia, 2019-2020, 71 MORBIDITY AND

MORTALITY WKLY. REP. 940, 941 (2022), https://www.cdc.gov/mmwr/volumes/71/wr/pdfs/mm7129e2-H.pdf.

Of note, the Kaiser Family Foundation found that opioid overdose mortality among non-Hispanic Black persons

rose nearly fifty-four percent between 2019 and 2020. See Opioid Overdose Deaths by Race/Ethnicity, KAISER

FAM. FOUND., https://www.kff.org/other/state-indicator/opioid-overdose-deaths-by-raceethnicity/?data (last

visited Feb. 26, 2023).

The

continually increasing rates of overdose deaths reinforce the reality that the U.S. is

1.

2. See Ahmad et. al., supra note 1.

3.

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