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August 16, 2016

Should I be more troubled by drug dealers facing homicide charges after customers' overdose death?

The question in the title of this post reflects my ambivalent reactions to this lengthy and interesting AP article headlined "Prosecution trend: After fatal OD, dealer charged with death." Here are excerpts:

He knew he was in trouble even before he read the text message: "Did u hear what hapnd 2 ed?"  Ed Martin III had been found dead in the bathroom of a convenience store, slumped over on his knees with a needle and a residue-stained spoon in his pocket.  He'd mainlined fentanyl, an opioid up to 50 times more powerful than heroin.  A pink plastic bag of white powder sat on the sink.

Michael Millette had heard. The overdose death of his friend, just 28, brought tears to his eyes.  But he was scared, too. He was Martin's dealer, the man who'd sold him his final fix.  In panic, Millette fled to Vermont.  But within a day he was back, selling again. He needed money for his own habit.

Now, though, police had a tip that "Mike on Main Street" had been Martin's dealer.  Undercover officers began watching his furtive deals on a pedestrian bridge behind his apartment; they secretly photographed his visitors.  After he sold drugs to an informant, they swooped in and arrested him.

That's when Millette earned a dubious distinction: He became one of a growing number of dealers around the nation to face prosecution for the fatal heroin and fentanyl overdoses of their customers.  He was charged not just with drug dealing, but with causing Martin's death.  Maximum penalty: life behind bars.

In many states, including Ohio, Maine, West Virginia and New Jersey, authorities grappling with an alarming surge in opioid abuse are filing homicide, involuntary manslaughter or related charges against dealers.  They argue the overdose deaths should be treated as crimes leading to stiff sentences that deter others — and deliver a measure of justice.

"We need to send that message that you can't sell things that are the functional equivalent of poison," says New Hampshire Attorney General Joseph Foster, whose state has witnessed an explosion in drug-related deaths in recent years....

Littleton is the essence of New England charm, with a white clapboard inn that has welcomed visitors since they arrived by stagecoach, a 19th-century opera house and even a bronze statue of Pollyanna, the fictional optimist whose author was born here.

But beyond the postcard image is the crime blotter police Capt. Chris Tyler sees every day. In recent years, he says, drugs have been linked to 85 to 90 percent of the major crimes — burglary, theft, armed robbery, forgery, identity fraud....  When heroin first took hold here around 2013, Tyler explains, "there was just a general sense of denial. That was something that happens in big cities where people fall between the cracks. It wasn't going to happen here. But unfortunately it has."

It's not just heroin, but cocaine, fentanyl and a resurgence of crystal methamphetamine.  In one seven-month stretch last year, there were three overdose deaths, all connected to fentanyl.  In May, a police informant was fatally shot; he'd allegedly cooperated in identifying dealers in the area.

In New Hampshire, drug-related deaths have soared from 163 in 2012 to a projected 478 this year.  Fentanyl is increasingly the culprit.  From 2011 to last year, deaths caused solely by the synthetic opioid exploded from five to 161, according to the state coroner's office.  In that same period, the number of deaths caused by fentanyl combined with other drugs, including heroin, rose from 12 to 122....

Millette, 55, had been linked to another young man's fatal fentanyl overdose, but the witness wasn't credible so police didn't pursue the claims.  Millette insists he never was a big-time dealer, just a desperate addict.  But Tyler notes he peddled fentanyl, heroin and cocaine to more than 30 customers.  His strongest stuff was called "the fire."

Millette says he wasn't sure what he'd sold Martin, only that it was stronger than heroin.  He never tested what he sold. "If he's going to do it to a friend, who else will you do it to?" Tyler says. "He was somebody who needed to be stopped."

The prosecution of Michael Millette was part of a new thrust against opioid dealing in New Hampshire. In the spring, the U.S. attorney's office and the state's attorney general formed a task force to pursue dealers who sell opiates that result in fatal overdoses.  So far, 56 cases are being investigated, says Benjamin Agati, senior assistant attorney general.  In July, his office trained law enforcement throughout the state on how to identify these deaths and work with special prosecutors on investigations.

Though New Hampshire isn't ruling out filing homicide charges if needed — a strategy used in some other states — Agati says his office is pursuing dealers based on a law in which it must show they knowingly provided a drug that resulted in death.  The heightened focus on dealers, he says, partly stems from a sense among social workers, pharmacists and rehab experts that "'we can't treat our way out this. We can't do this alone. There has to be some way to stem the supply.  That's one reason we're trying the new approach."

But is this the right strategy?  The legal community is divided. "I just don't think the ultimate responsibility lies with the person who sells another addict a drug," says Marcie Hornick, who was Millette's public defender.  "I find it so counterproductive that they think sending these people to prison for long periods of time is going to have any deterrent effect.  It's an easy fix and perhaps it satisfies part of the population.  In reality, they come out and don't have the tools or skills to return to society."

But James Vara, who prosecuted the case and now is the governor's special drug adviser, rejects suggestions this is a politically motivated plan without merit. "Say that to a family who lost their child, their son, their brother, their daughter," he says. "Say that to Ed Martin's two children who are without their father as a result of this."

I agree with the statement by the public defender that the "ultimate responsibility" for an overdose death lies with the drug user not the drug dealer. But, especially as the number of these OD deaths are skyrocketing and drug dealers are seemingly not deterred from selling deadly drugs even when customers end up dead, it is not obvious to me that prosecuting dealers for homicide really is "counterproductive" or that it will not have some beneficial deterrent impact.

One reason I am generally supportive of marijuana reform and often troubled by long mandatory minimum sentencing terms for drug trafficking is because I dislike the nanny-state paternalism I see in decisions to criminalize and severely punish behaviors that do not obviously inflict serious harms upon innocent victims.   But if and when drug dealers (whether on street corners or Big Pharma corner offices) are profiting from knowingly and recklessly selling a product that is regularly killing purchasers, my disaffinity for criminalization and significant punishment fades.

August 16, 2016 at 10:52 AM | Permalink


I disagree Doug and here are two reasons why.

First you write, "But if and when drug dealers (whether on street corners or Big Pharma corner offices) are profiting from knowingly and recklessly selling a product that is regularly killing purchasers, my disaffinity for criminalization and significant punishment fades."

A drug dealer is manifestly not like a medical doctor in his corner office. A drug dealer is not a medical professional. There is no way....using traditional tort standards...that a drug dealer can foresee who is likely to OD and who is not and whether that OD is likely to lead to death. The drug dealer does not have the medical expertise to form a competent judgement. So if dealing drugs isn't enough to meet traditional standards of tort liability I fail to see how it can be sufficient to sustain criminal liability.

The second reason I disagree is the historical context. If we had been starting out with fresh slate it might be a more difficult call. We cannot ignore, however, the 40 years of failed drug policy in this country. Charging these people with homicide does not strike me as sensible policy so much as the flogging of a dead horse out of frustration. The solution to drug problem is always the same: more punishment by the conservatives, less punishment (or decriminalization) by the libertarians and any other policy option is off the table because it costs too much money.

Posted by: Daniel | Aug 16, 2016 11:15:59 AM

Drug dealers probably do have some sense of their customer base and the quality of the stuff they are selling, especially if they directly cut the drugs in some ways to make it more dangerous. Current tort rules has made those rather indirectly involved liable. This includes those without knowledge any more special than the drug dealers here.

The second argument in the first comment seems more appropriate. But, "Big Pharma" is cited there. So, we are talking theoretically, that is, what would be an ideal policy across the board. If drugs were legalized, e.g., "knowingly and recklessly" would be a rule that applies across the board in some fashion. OTOH, "Big Pharma" might be an inexact comparison though some do use drugs to medicate. The better comparison might be cigarettes and alcohol. And, if we legalize drugs, some people will choose to recklessly use them.

Posted by: Joe | Aug 16, 2016 11:34:33 AM

It's funny how Doug can take the position here that selling "dangerous" drugs can get you charged in a death (which will increase punishment) and that's ok if done "knowingly" or "recklessly" but also take the position that there are so many people in federal prison languishing for non-violent drug dealing. There's no escaping the fact that drug dealing gets users killed--that fact is to be ignored generally, but in this context, it is not. Not a lot of coherence, Doug.

Posted by: federalist | Aug 16, 2016 11:45:10 AM

federalist, are you unable to see what is coherent about punishment more when there is a direct link to serious/deadly harms, but not when there is not? I have yet to hear anyone say we should treat/punish the same drunk drivers who get home safely and drunk drivers who kill 20-somethings. I am just applying the same principle here: I am not convinced we should punished drug dealers whose customers live on for years the same as drug dealers whose customers die right after using the product.

Especially because the user/buyer of the drug is a willing (though perhaps addicted) participant in any non-violent drug dealing, I struggle to find a sound basis (other that nanny-state pateralism/history) for serious criminal punishment for those who sell not-so-dangerous drugs. (Marijuana is the most obvious example here, especially as compared to our huge $$$$ markets supporting sales of tobacco and alcohol and guns, all which are much, much more dangerous even when used "responsibly.")

What makes my view plenty coherent (but is not reflected in current criminal laws or practices), federalist, is my embrace of a slight variation on the JS Mill harm principle as a limit on state use of serious criminal sanctions: I think that only conduct that leads to direct harm (or obvious significant risks of harm to innocent victims) should be the subject of serious criminal sanctions. Hope that makes sense to you, because I do not think it is that hard to see the coherence here if you are truly a sharp and clear thinker.

Posted by: Doug B. | Aug 16, 2016 1:09:52 PM

"But if and when drug dealers (whether on street corners or Big Pharma corner offices) are profiting from knowingly and recklessly selling a product that is regularly killing purchasers, my disaffinity for criminalization and significant punishment fades."

That's what you wrote. That statement seems to say that those who have some requisite mens rea with the consequences (death/serious bodily injury?) should be subject to "significant punishment." So what of heroin pushers? That stuff gets people killed all the time. So are you saying that the happenstance of death (and I assume serious bodily injury) gets significant punishment? Ok, fine, but serious dealers of heroin will have a body count and, not only that, legislatures can certainly take into consideration the cumulative effects of heroin addiction in considering punishment.

The upshot, Doug, is that your concession that actual harm (with mens rea) is a camel's nose (and more) in the tent. And it makes your whole spiel on drug-dealing being "non-violent" and therefore not harshly punishable very untenable. The fact is that drug dealers (especially serious ones, who are, of course, the ones who generally get the attention of the feds) collectively cause significant harm---and you have made the argument that harm can justify punishment.

Posted by: federalist | Aug 16, 2016 2:19:33 PM

I have a fundamental objection to Professor Berman's lack of concern: Isn't his way of thinking placing too much weight on the happenstance of outcomes rather than real culpability. Put otherwise, what good is there to say about resting vastly different punishment on whether the drugs happened to kill someone, rather than what the drug dealer intended to do? Isn't it just compounding the tragedy to send a dealer away for life, rather than say 10 years, because the dealer was unlucky enough to have his drugs be the dose that happened to kill someone, especially given that the death is a sunk cost.

I know this problem is endemic to our system of punishment, but why expand the problem? Is it smart policy to base deterrence on extraordinarily harsh punishment for aberrational outcomes, rather than have the punishment fit for the normal outcome (someone sells and someone takes the drug but the taker doesn't die)? E.g., if we want to deter with 12 years punishment, why not just say 12 years, rather than 10 years for 50 offenders and 50 year for 5 (or whatever the precise math would be)?

Posted by: Mark | Aug 16, 2016 2:27:33 PM

@Mark writes, " Isn't his way of thinking placing too much weight on the happenstance of outcomes rather than real culpability."

Ding ding WINNER.

Doug writes, "have yet to hear anyone say we should treat/punish the same drunk drivers who get home safely and drunk drivers who kill 20-somethings." Ok. I'll say it because that is exactly what I do think. This is why I was careful to cabin my initial remarks with "traditional" notions of tort liability. I am very well aware of the modern tendency in torts to engage in outcome bias--we punish the unlucky. When a person gets behind the wheel of a vehicle drunk the risk assumed is exactly the same for all drunk drivers. The difference between those who kill and those who make it home safely is accident, nothing more, and in traditional torts accident alone was never enough to confer liability.

@Joe writes, "especially if they directly cut the drugs in some ways to make it more dangerous." I concur. There is a difference, however, between fraud and accident and that is intention. The article doesn't mention any allegations of cutting (fraud) so situations involving fraud are separate concern. My view is exactly as Mark stated: we shouldn't be punishing people more harshly simply because they are unlucky.

Posted by: Daniel | Aug 16, 2016 3:03:23 PM

Doug Berman's commentary goes beyond "luck": "knowingly and recklessly selling a product that is regularly killing purchasers."

The word "recklessly" has a meaning beyond let's say a car dealer who sells cars that are in accidents that arise from events the distributor is not aware of in any relevant fashion. I take the usage of that language to mean that all dealers would not be in an equal place here. There would have to be some sort of "extra" -- some extra degree of "reckless" behavior of "knowingly" doing something that is more than luck.

I cited cutting drugs since that is often part of dealing -- those who sell are involved in cutting the drugs into individual items of sale. Dealers also have some idea of the type of people they are selling to, including those who have some extra risk of harm. So, it's not just "luck" -- there is an increase in odds there that might not be 100%, but that height of odds is not necessary for liability in the law in various instances.

Reference is made to Mark to "aberrational" outcomes. The article cited speaks of a certain strain of drugs that lead to a significant number of overdoses; given fire suggests smoke, I gather there are also other less lethal, but particularly dangerous results. If a particular axle results in extra deaths, a higher civil penalty is warranted. The same applies when the substance you sell is already illegal.

Posted by: Joe | Aug 16, 2016 3:56:20 PM

Tort liability merely requires negligence. Selling a product that has no quality control and is of unknown potency is not simply negligent, it is reckless in the criminal sense -- a conscious disregard of a substantial and unjustifiable risk that represents a gross deviation from the standard of care. Contrary to some of the above suggestions, tort liability does consider the level of damage. If your negligence (by sheer luck) causes no or minimal harm, then you pay less for your negligence. If your runaway train kills the president of a major company, you are going to pay a substantial chunk in damages.

Felony murder goes back to Blackstone; so its not that the concept that your crime was unlucky enough to cause death equals murder is a novel concept just invented yesterday. Some of the above arguments would suggest that we should repeal murder statutes and replace them with assault statutes as well as the distinction between attempts, conspiracies, and completed crimes. The law has always felt that the results of your criminal conduct is a relevant consideration. Not the only consideration, but a relevant consideration.

Posted by: tmm | Aug 16, 2016 4:14:30 PM


"Not the only consideration, but a relevant consideration. "

Yet in modern liability outcomes are often the ONLY consideration. Drunk driving illustrates this point well. If two people drive to their respective homes from the same party, with the same level of drunkenness, driving the same model of vehicle and yet one runs over a pedestrian and kills that person and the other gets pulled over and arrested before they arrive home the only thing that is increasing punishment is the outcome. The risk that the two parties assumed when they got behind the wheel of their respective vehicles is exactly the same risk. The only difference is that in one case the person got unlucky and encountered a pedestrian and the other did not.

If the standard is recklessness then a person engages in reckless behavior regardless of the outcome of that reckless behavior.

Posted by: Daniel | Aug 16, 2016 4:41:54 PM

Lots and lots of fuzzy thinking in some of these comments, so let me seek to encourage some clarity (at least with respect to my views). I will do a separate comment to deal with separate fuzzy thinking.

FEDERALIST: First, let's be clear about what I said. I did NOT advocate for regular use of severe punishment in these cases. Rather, I was making the nuanced point that any knowing/reckless sales that is "REGULARLY killing" people can better justify criminalization and significant punishment. (This does not mean I think significant punishment in many, or even a few, of these cases makes for wise policy, I just said my disaffinity for this approach fades --- especially when other approaches to dealing with this growing OD problem are seemingly proving inadequate.)

Moreover, just selling regular heroin (let alone marijuana or cocaine) does not REGULARLY kill people: recent statistics suggest that there were probably around 1 million US heroin users in 2014, but the CDC reports that "Opioids (including prescription opioid pain relievers and heroin) killed more than 28,000 people in 2014.... At least half of all opioid overdose deaths involve a prescription opioid." When you say "That stuff gets people killed all the time," you might as well be referencing tobacco, alcohol, guns, prescription opioids, and lots and lots of other dangerous stuff that has arguably comparable mortality rates when used irresponsibly. Indeed, I think it fair to say, federalist, that all "serious dealers" of tobacco, alcohol, guns, prescription opioids have a "body count," and yet I doubt you would think anyone who sells a certain number of guns to their pals without a license ought always get a minimum 10 year prison term. And dealers of tobacco, alcohol, guns, prescription opioids all collectively cause much more harm than drug dealers (especially low-level ones who just deal to support their own habit).

Finally, I have always thought that harm can justify punishment and my disaffinity for severe sentences for nonviolent drug selling are due to (1) just the kind of fuzzy and faulty logic you employ here about the relationship between certain conduct and certain harms, and (2) criminalization often driving up the costs/incentives of illicit black markets, which in turn makes these markets/products even more harmful. Ninty years ago, we learn that lesson the hard way with alcohol prohibition, and ultimately fixed our dumb criminalization approach to harm reduction in that arena. More recently, we are getting around to figuring this out with marijuana, and I have long coupled my disaffinity for the drug war with an interest in other harm-reduction strategies.

Posted by: Doug B. | Aug 16, 2016 4:57:18 PM

I think Daniel really hits the nail on the head with the drunk driving example. When I hear about a young person going to jail for 24 years for killing two people while driving drunk, like happened in Florida recently for example, I feel very bad for the offender. It is incredibly unfair to her. I would be one thing if a harsh sentencing like this would bring the victims back, but otherwise what is the point. The victims are dead, whether or not the offender receives an incredibly harsh sentence. Some of the outcomes seems to turn on the attitude of the victim's family. If the family is graceful and forgiving, the court tends not to throw the book at the offender. In the case in Florida, from what I saw, the victims' families were vindictive (and well off) and that seemed to move the court. But this is happenstance on happenstance.

The objections to this argument seem often to be nothing more than based on tradition. But there is a lot of flabby thinking that goes back to the time of Blackstone, and we generally try to apply more rational principles in our modern world.

This is not to minimize drunk driving or drug dealing. But, again, what is the well-reasoned basis for punishing the unlucky offender so severely. That makes sense in the civil context, where someone has to bear the loss. But in the criminal context, society is free not to compound the tragedy without leaving anyone undercompensated.

I really haven't heard much in the way of a rigorous counterargument to this point.

Posted by: Mark | Aug 16, 2016 5:47:28 PM

Mark, your additional comments lead me to view your points as less fuzzy, but I am inclined to push back on the assertion that, in either the drug dealing or drunk driving context, it is "the happenstance of outcomes rather than real culpability." Joe makes this point as part of pushing back on the idea of luck being the only factor that distinguishes the "safer" drunk drivers/drug dealers and the killer drunk drivers/drug dealers. Our distintive concern about cause death/harm is not just a reflection of hindsight "outcome bias," but also a reasonable belief that the outcome provides at least some significant information about the extent of risk creation and real culpability that we have to construct after the fact.

After all, what is the "real culpability" of driving once with a .10% BAC or once selling a drug "called 'the fire'"? Does this culpability get worse (or arguably better) if this is done safetly once, and the actor then does it again and again and again without any resulting harm? Would you claim the repeat drunk driver get LESS culpable each time he gets home safely with a .10% BAC because each subsequent time he drives drunk he reasonably believe just that little bit more that he just is not much of a risky driver after 5 beers?

One of many reasons I am more drawn to a harm-based approach to criminal responsibility is because I view most harms to be more objectively measured and subject to less biased social constructions. Notions of "real culpability," in sharp contrast, often seem to me to be subjective judgments subject to more-socially-contested --- e.g., is an illegal gun salesman more "culpable" than a marijuana dealer than an tobacco executive than a CP downloader than a wall-street trader using insider info, and so on. The harm approach to criminality/punishment will be influenced by some "happenstance," but only with respect to behavior that is risky enough to cause some harms (and, as the tort talk highlights, in many settings perhaps victims/society could and should generally be content with civil remedies.)

Posted by: Doug B. | Aug 16, 2016 11:11:53 PM

Crime involves two components -- the actus rea and the mens rea. Recklessness is the minimal mens rea in most states that use the model penal code, but there is still the act. Many crimes include a result component for the actus rea (e.g., property damage measures the value of the property destroyed, stealing measures the value of the property stolen, the degree of assault depends on the injury sustained), and almost all states distinguish between attempts and completed offenses. If the fact that the drunk driver killed somebody is deemed as random luck that shouldn't impact the punishment, then the fact that the burglar only found a small number of items worth stealing shouldn't reduce the punishment, and the fact that the victim survived a shooting or a poisoning attempt shouldn't reduce the punishment. You can make an argument that this is new (which it isn't) or that it's a bad tradition, but you can't make both arguments simultaneously. It may be traditional, but I don't see much support out there for merging assault and homicides together or repealing felony murder statutes.

Posted by: tmm | Aug 17, 2016 10:35:01 AM

Doug--I know what you ultimately stand for. What I was pointing out is that your words actually support the exact opposite of what you stand for. Now I know that the Devil can cite Scripture for his purpose---so maybe I am being a little unfair--but the fair import of your words supports a harsh sentencing regime for serious drug dealers.

You can't really wriggle out of that.

Posted by: federalist | Aug 17, 2016 6:09:07 PM

No federalist, the fair import of my words supports additional punishment for drug dealers who directly cause a death as a result of their knowing and reckless sale of very dangerous drugs. You may desire to misread my words because YOU support harsh sentencing for drug dealers, but the very fuzzy logic you use to build a case for such a regime helps highlights why I am suspect of the motive and goals of all those who support such a regime.

Posted by: Doug B. | Aug 17, 2016 7:56:30 PM

you didn't say "directly" and heroin is very dangerous . . . .

you ought to be more careful with your words.

Posted by: federalist | Aug 18, 2016 5:27:09 PM

My words are careful, federalist, the problems is your eagerness to misrepresent them to play gotcha games. And your affinity for those games, and for bringing heat rather than light to many conversations, makes me always suspicious of your motives and goals.

Posted by: Doug B. | Aug 19, 2016 8:47:19 AM

This law has always felt that the results of your criminal conduct is a relevant consideration. Not the only consideration, but a relevant consideration.

Posted by: David Bjornson | Aug 19, 2016 11:30:52 AM

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