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July 15, 2022

New issue brief urges prosecutors to stop pursuing drug-induced homicide charges

The group Fair and Just Prosecution, which brings together and focuses on the work of elected local prosecutors, has this notable new issue brief titled simply "Drug-Induced Homicide Prosecutions." Here is "Summary" found at the start of the 12-page document:

This is one of a series of FJP’s “Issues at a Glance” briefs addressing strategies for improving responses to overdose deaths and incorporating harm reduction approaches into prosecutors’ work.  As prosecutors face the tragedy of rising overdose deaths in their communities, this series of briefs urges them to embrace interventions grounded in the philosophy of harm reduction.  This brief focuses on drug-induced homicide prosecutions.  It describes why they are inherently problematic, while offering more effective, humane, and fiscally responsible alternatives.  It is intended as a guide for prosecutors who are grappling with how to respond effectively to an increased number of overdose deaths in their communities and seeking to do so with evidence-based and compassionate approaches.

“Drug-induced homicide” (DIH) prosecutions – the practice of charging individuals who supply drugs that result in a fatal overdose with homicide, even in the absence of specific intent to cause death — have dramatically increased in the wake of the overdose crisis.  While an estimated 28 individuals faced DIH prosecutions in 2007, close to 700 DIH cases were filed in 2018 based on media reports.  This brief outlines the evidence regarding DIH prosecutions, including their inefficacy in reducing overdoses, the proportionality and racial injustice concerns they raise, and their role in ultimately exacerbating the harms of the overdose crisis.  The brief recommends that prosecutors cease to seek DIH charges absent evidence of specific intent to kill, and delineates more effective approaches that have the potential to save lives.

July 15, 2022 at 12:07 PM | Permalink


The defendant should continue to be criminally liable where the government shows that he knew, or in the exercise of reasonable care and caution should have known, that the amount of drug he sold bore a realistic possibility of inducing death.

You wanna sell poison to 15 year-olds? Fine, but be ready to live with the consequences.

Posted by: Bill Otis | Jul 15, 2022 4:46:48 PM

Prosecutors charging folks with drug induced homicides is a bright example of tenuous and unreasonable prosecution. A person that sells or gives drugs to someone without the intent to kill cannot be found guilty of murder or manslaughter. The onus lay on the individual that ingested said narcotics in the first place. This pivot to charging drug dealers with homicide is regressive prosecution that needlessly clogs the system.

Posted by: Anon | Jul 15, 2022 10:23:25 PM


What about a child ingesting them? They cannot drink, vote, etc. Isn’t the adult in the equation responsible?

Posted by: TarlsQtr | Jul 15, 2022 11:39:42 PM

TarlsQtr ,

Unless you're talking about actual children rather than teenagers then I would say 'no'. Just as I have zero problems with teenagers being responsible as adults for other criminal acts.

Posted by: Soronel Haetir | Jul 16, 2022 3:12:20 AM

I am aware of a Federal criminal case from more than 20 years ago involving a heroin distribution ring that sold heroin in the area where Kentucky, Virginia and Tennessee come together. That case was prosecuted as a criminal conspiracy. One drug purchaser had died (overdosed) from heroin distributed by a member of the conspiracy, but prosecutors could never establish which member had sold the fatal dose. At sentencing hearings, all 13 members of the conspiracy received the enhancement for "distribution resulting in death" (20 years to life). I have long mulled in my mind whether that application of joint and several liability of co-conspirators was justified. What do Doug and the other commentators here think/

Posted by: Jim Gormley | Jul 16, 2022 4:27:45 AM

Anon --

"A person that sells or gives drugs to someone without the intent to kill cannot be found guilty of murder or manslaughter."

Suppose he doesn't have the intent to kill but knows that death is possible with the quantity he's selling, has caused death or serious injury before in other instances, and just doesn't give a hoot because the sale is going to net him a nice profit?

Posted by: Bill Otis | Jul 16, 2022 10:31:46 AM


Isn’t it true that in some jurisdictions an armed robber can be convicted of manslaughter if the victim has a heart attack during the commission of the crime?

If so, this is no different.

Posted by: TarlsQtr | Jul 16, 2022 9:13:48 PM

Death is possible with any quantity, depending on the sensitivity of the user. And how is the seller to know whether the user intends to consume the quantity purchased all in one day? People often buy a bottle of pills -- often at CVS -- which would kill them if all taken at once. Anyhow, the drug that kills the most Americans is tobacco, but nobody suggests that workers at 7-11 should get the death penalty whenever a smoker dies of emphysema.

Punish those who sell drugs to children, or who sell mislabeled drugs. But adults should take full responsibility for their own choices as to what drugs to consume and in what quantities.

End the war on drugs. It does far more harm than good. Anyhow, the US is supposed to be a free country. I'm over 21, so if I want to have meth for breakfast and heroin for dinner, that's nobody's business but my own. (For the record, I've never used, possessed, bought, sold, or manufactured any illegal drug, nor have I been accused of doing so.)

Posted by: Keith Lynch | Jul 17, 2022 8:56:53 AM

Initially I considered answering your questions separately. Instead I'll address them one by one.

1. Tarls: I never made an argument about a child ingesting drugs. However, a person isn't criminally liable for homicide because a kid ingested some drugs.

2. Bill Otis: A dealer sells drugs based on the price paid by the consumer. For example, a dealer will not provide 1/8 oz of cocaine unless a person pays for said quantity. Once the transaction is complete, the onus is on the consumer to responsibly consume said drug.

3. Tarls: I believe you're referring to felony-murder. Multiple US jurisdictions have laws that state a person is guilty of felony murder if a person dies during the commission of a felony. Theoretically, if someone is selling drugs and someone is shot and killed in a raw deal, a person could be charged with felony murder pursuant to aggravated assault. However, A person that possesses drugs and ODs died by their own fault.

Posted by: Anon | Jul 18, 2022 8:43:11 PM

Anon --

"A dealer sells drugs based on the price paid by the consumer. For example, a dealer will not provide 1/8 oz of cocaine unless a person pays for said quantity. Once the transaction is complete, the onus is on the consumer to responsibly consume said drug."

1. Ahhhh, the heralded compassion of the defense side makes another appearance.

2. Could you outline for me how a person is "to responsibly consume" fentanyl? Or LSD? You'd be better off "responsibly consuming" battery acid. But I don't want to preempt your response.

Posted by: Bill Otis | Jul 21, 2022 7:12:07 PM

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