Prosecutors say they will use discretion to target dealers, protect Good Samaritans
Gov. Roy Cooper signed the controversial “Death by Distribution” bill into law last week.
Under the new law (which takes effect on December 1), someone who gives certain drugs to another person leading to that person’s death can be charged with a Class C or Class B2 felonies – a class that includes kidnapping and second degree murder. Sentences can range from three and a half and 32 years in prison.
The “certain drugs” covered by the law include cocaine, methamphetamine and any opioid – a reaction to the dramatic increase in overdoses in North Carolina and across the country that have led lawmakers to scramble for legislative solutions.
Critics worry the law will be misused, prosecuting mostly friends and family of people struggling with addiction who deal in order to support their own use. Though the law specifically says it does not take away “Good Samaritan” protections for those who call 9/11 to report an overdose, those who work with people experiencing addiction say harsher penalties could lead to a chilling effect whereby fewer people want to get involved, even if it means saving a life.
“I’m not confident that people hearing about what this law aims to do will understand what it can actually do,” said Virgil Hayes, advocacy and program manager with the North Carolina Harm Reduction Coalition. “We’re on the front lines and we see how people react to things like this. Sometimes it’s about what it looks like as much as what it really is.”
Studies from states that already have similar laws show they are not doing what they are intended to do, Hayes said.
“We’re taking a very big gamble at the expense of people’s lives,” Hayes said.
Before his current position, Hayes served as the Coalition’s Appalachian Harm Reduction Coordinator in western North Carolina. Doing needle exchange work, he saw many people that the law will prosecute as dealers are some of the closest friends and family of overdose victims.
“If you’re not placing a threshold, if you’re not implementing language to say you’re only targeting people who are selling at trafficking amounts, the high-level dealers, you’re going to ensnare a lot of people who are struggling with addiction themselves,” Hayes said. “A lot of these people are friends and family members of the deceased, the research shows. They’re also dealing with addiction. They’re trying to get by.”
Fear of prosecution under the new death by distribution law is likely to keep people in the best position to report or help with overdoses from doing so, Hayes said, for fear of dealing with law enforcement with harsher penalties on the books.
A recent Drug Policy Alliance report emphasizes that possibility.
“The most common reason people cite for not calling 911 is fear of police involvement,” the report said. “A 1997-2000 San Francisco survey of 709 young injection drug users reported that only 53% of those who witnessed an overdose sought medical help upon doing so. A 2002 study in Albuquerque found that only six out of 95 bystanders who witnessed an overdose called 911 as their first response; another 36 reported seeking medical assistance, but only after an average delay of just over 18 minutes. Nearly half of the witnesses cited ‘police’ as the primary reason for not calling 911.”
“Similarly, in a 2003-2004 study in Baltimore, two thirds (63.4%) of the 644 study participants called 911, but more than half delayed the call by five or more minutes,” the report continued. “One of the most common reasons for delaying the 911 call was fear of police involvement. Among those who did not call 911, 50% cited fear of police. In a 2004 Chicago evaluation of 34 people who had witnessed an overdose, all of them reported fear of police and arrest as a factor they considered when thinking about calling 911.”
New Hanover and Pender County District Attorney Ben David said he understands the criticisms, but he believes prosecutors and law enforcement will use the law properly. The Good Samaritan protections are mentioned in the text of the new law, which says it is not meant to contradict them, David said.
“You hopefully have people in the system who understand what we’re trying to do with this law,” David said. “But some of this is going to come down to good old fashioned discretion. All I can be responsible for is my staff and the people of my prosecutorial district.”
Working in one of the areas of the state hit hardest by opioid addiction, David said his office needs this law as a tool to both curb the problem and put away people who are committing murder by distributing these drugs.
“We had eight overdose deaths last month in my district,” David said in an interview last week. “We lost 52 people last year – one for every week of the year. We were only able to charge second degree murder in three of those cases under the law on the books before ‘Death by Distribution.’”
David said he is sensitive to concerns about a return to the “War on Drugs” era mentality — heavy prosecutions for minor drug crimes — but argues the new law doesn’t represent such a shift.
“We’re talking about a war on drug dealers. These are people who are peddling poison. We’re talking about death by sale. Who we are going after is traffickers and sellers.”
Prosecuting those selling drugs for second degree murder under the previous laws was difficult, David said, because juries were often looking for “malice” in making murder convictions – something not required by the new law.
“Something like Fentanyl is homicidal to sell,” David said. “This takes the blaming of the victim out of the equation by looking at who is selling it and what they’re selling.”
The state’s Good Samaritan laws protect those reporting overdoses or giving first aid from being charged for possession of small amounts of drugs, paraphernalia or for underage drinking, David said, but were never meant to protect those dealing the drugs that caused the overdoses.
“Just like doctors, we want to ‘do no harm,’” David said. “First and foremost, we want to say to the addiction community and those who love them: ‘Please call 9/11. We want you to get help. We want you to be safe.’”
Hayes said groups like the Harm Reduction Coalition tried to prevent the legislation from passing, then tried to shape it into something less harmful. They ultimately hoped Gov. Cooper would veto the bill.
“We understand law enforcement are in a situation where they are being approached by people who have lost family members and are in grief,” Hayes said. “We understand they feel they need a tool like this. And this is a very tough issue from a political standpoint. It would put any politician in a bind. Unfortunately, I think the governor found himself in a position where a number of parties wanted to save lives but have had different ideas about how to do that.”
Tarrah Callahan, executive director of Conservatives for Criminal Justice Reform, said it isn’t just groups on the left who were skeptical of the bill.
“I think we can all understand where this legislation is coming from,” Callahan said. “There’s this massive epidemic and we want to hold someone accountable. That’s understandable. But this is a very gray area in the law as to prosecuting someone for murder because they sold the drugs.”
It was more difficult to make a second degree murder conviction stick without this new law on the books, Callahan said, but there may be a reason for that.
“In the last ten years, conservatives have really begun to recognize that with the drug laws we created,we’re just creating cycles of recidivism and not accomplishing what we set out to accomplish,” Callahan said. “The information and the evidence we have is that stronger sentencing doesn’t deter someone from selling drugs. So we’re calling on fellow conservatives to look at 20 to 30 years of evidence that we have and make policies based on that evidence.”
Callahan said groups like hers will keep an eye on whether the new law does in fact deter people from calling 9/11 and whether it’s properly applied. If there are problems with implementation, she said, they will likely reach out to lawmakers to push for changes.
Advocates for those struggling with addiction will now need to use their existing relationships with key stakeholders in the state, Hayes said – including prosecutors and law enforcement – to make sure the law is used the right way and doesn’t hurt the wrong people.
That’s something everyone wants, David said.
“This is America,” he said. “I know not everyone agrees on these things. They shouldn’t. This is complicated.”