Seeking Justice and Solutions in the Opioid Epidemic—The Prosecutor’s Role

One morning in early 2016, Staten Island District Attorney-elect Michael McMahon awoke to a tragedy. His neighbors had just found their 22-year-old son collapsed on their front porch, dead from an overdose. Upon taking office, DA McMahon and his team honed in on overdose deaths, only to learn that they were still classified as accidents and never investigated. The death toll was staggering—McMahon’s young neighbor was one of 116 overdose deaths already that year—yet families and communities still were left to fend for themselves after each sudden and shocking disappearance. McMahon and his team rallied prosecutors, staff, the police department, and community to brainstorm a new approach. They fought stigma within the DA’s Office, invested in robust partnerships with treatment providers, and hired licensed clinical staff to direct their diversion program. The opioid epidemic on Staten Island had affected the entire community, across geographical, racial, age and socioeconomic differences. The DA’s new approach took on a broad scope as well.

The county’s response now reflects the entire community’s commitment to preventing more overdose deaths by investing in coordinated referrals, thorough investigations, and selective, carefully investigated prosecutions. It involves several practical components: dedicated, experienced staff and partners; a written protocol for overdose death scene processing; a rigorous filtering process for potential homicide cases; a proactive outreach program; and established alternatives to incarceration for defendants with substance use disorder.

It’s easy to say, “we can’t arrest our way out of this problem,” but the Staten Island DA’s Office has given the tagline a solid practical meaning. In 2020, Prosecutors’ Center for Excellence interviewed prosecutors from various parts of the country, including the Staten Island DA’s Office, to study the various approaches and best practices for opioid overdose investigations. This article shares some of the findings. [To read the full article, Seeking Justice and Solutions: A Prosecutor’s Guide to Opioid Overdose Investigations. The article was supported by Grant No. 2017-YX-BX-K002 awarded by the Bureau of Justice Assistance, which is a component of the U.S. Department of Justice.]

Scope of the Epidemic

Overdoses involving at least one opioid have claimed more than 450,000 lives since 1999, according to the CDC—more than the entire population of Portland, Oregon, and Tucson, Arizona. Opioid Data Analysis and Resources, Ctrs. for Disease Control & Prevention (CDC), (last visited Aug. 21, 2020). The roots of the opioid epidemic are in cartel operations and inside pharmaceutical corporate boardrooms, where a ruthless drive to profit has spawned networks of distributors as well as extensive lobbying operations often involving corrupt practices. As of 2016, the profits generated from the United States for Mexican drug cartels alone was estimated to range between $19 and $29 billion, and the global prescription opioid market was believed to be worth $24 billion. U.S. Dep’t of Homeland Sec., United States of America–Mexico Bi-national Criminal Proceeds Study; Dina Gusovsky, Americans Consume Vast Majority of the World’s Opioids, CNBC (Apr. 27, 2016).

The epidemic has come in three “waves”: first, a flood of prescription opioids resulting from profit-driven misleading marketing and uncontrolled distribution by pharmaceutical manufacturers and distributors as well as overprescription by physicians (Scott Higham, Sari Horwitz & Steven Rich, 76 Billion Opioid Pills: Newly Released Federal Data Unmasks the Epidemic, Wash. Post (July 16, 2019)); next, a turn toward heroin as state regulators and law enforcement succeeded in narrowing channels for prescription opioids (Steven Rich, Meryl Kornfield, Brittany Renee Mayes & Aaron Williams, How the Opioid Epidemic Evolved, Wash. Post (Dec. 23, 2019); finally, the dominance of potent, synthetic opioids such as fentanyl, bringing more sudden and frequently irreversible overdoses (CDC, Opioid Data Analysis and Resources, supra).

After nearly three decades of staggering increases in the death tolls every year, 2018 offered a slim hope when drug overdose deaths decreased by 5%. And yet 68,000 people still died. Unfortunately, hope faded fast. In early July 2020, the Centers for Disease Control and Prevention (CDC) released drug overdose statistics for 2019 (Vital Statistics Rapid Release: Provisional Drug Overdose Death Counts, Ctrs. for Disease Control & Prevention (CDC), (last visited Aug. 21, 2020)): almost 72,000 dead. While we are still awaiting the release of data for the year 2020, it is on track to exceed the death toll of 2019 by a staggering 13 percent, due to the combined effects of fentanyl and COVID-19. Josh Katz, Abby Goodnough & Margot Sanger-Katz, In Shadow of Pandemic, U.S. Drug Overdose Deaths Resurge to Record, N.Y. Times (July 15, 2020).

Society’s approach to the drug crisis has evolved as well. Conscious and unconscious biases about race and poverty influenced earlier attitudes toward drug users and “drug-prone locations.” Those addicted to heroin or cocaine were considered “junkies” and were treated as criminals and second-class citizens, receiving scant sympathy or medical attention. During the crack and heroin epidemics of the 1970s and 1980s, poor neighborhoods became battlegrounds in the war on drugs, leading to high incarceration rates for people of color with little or no available substance use disorder treatment. Julie Netherland & Helena Hansen, The War on Drugs That Wasn’t: Wasted Whiteness, “Dirty Doctors,” and Race in Media Coverage of Prescription Opioid Misuse, 40 Culture, Med. & Psychiatry 664 (2016).

As prescription pills began to overtake other substances in the late 1990s, rising rates of substance use disorders and overdose within white, middle-class communities prompted a shift in the perspectives of community members, law enforcement, and elected officials. Taylor Santoro & Jonathan Santoro, Racial Bias in the US Opioid Epidemic: A Review of the History of Systemic Bias and Implications for Care, 10 Cureus e3733 (Dec. 14, 2018). While pharmaceutical executives perpetuated the view that substance use disorders were a moral failure, blaming “abusers” and “reckless criminals” for OxyContin abuse (First Amended Complaint & Jury Demand at 59, Commw. of Mass. v. Purdue Pharma L.P, No. 1884-cv-01808 (Super. Ct. Suffolk, Mass.)), the families of overdose victims leveraged their socioeconomic status and political clout to shift the conversation toward treatment and diversion. (Katharine Seelye, In Heroin Crisis, White Families Seek Gentler War on Drugs, N.Y. Times (Oct. 30, 2014).

This was a necessary and overdue shift—and one to which prosecutors, in particular, must continue to respond. Fortunately, prosecutors are in a unique position to spearhead innovative approaches.

Substance Use Disorder Is a Disease, Not a Crime

It is increasingly recognized that repeatedly arresting individuals who are using drugs, overdosing on drugs, or committing petty crimes to support their habit does not solve the epidemic of substance use disorders and overdose. Indeed, there is consensus within the medical community: Substance use disorder is an illness and must be treated as such.

According to the National Institute on Drug Abuse, substance use disorder (SUD) is chronic and relapsing. “It is characterized by compulsive drug seeking, continued use despite harmful consequences, and long-lasting changes in the brain. It is considered both a complex brain disorder and a mental illness. Addiction is the most severe form of a full spectrum of substance use disorders, and is a medical illness caused by repeated misuse of a substance or substances.” The Science of Drug Use and Addiction: The Basics, Nat’l Inst. on Drug Abuse (June 25, 2020).

This does not mean that individuals suffering from substance use disorder will not enter into contact with law enforcement or commit crimes. However, just as prosecutors may become aware of a defendant’s medical history involving other life-altering conditions, symptoms of substance use disorder require investigation and analysis. Handled correctly, a drug user’s contact with law enforcement may be an opportunity to save their life—not just in that moment, but in the long term, by redirecting them away from the criminal justice system toward treatment or harm reduction. Prosecutors, of course, also must ensure public safety. Progress toward both goals is possible when prosecutors are educated. Substance use disorder may manifest with varying severity and, accordingly, allow for different forms or levels of accountability.

There is no question that such an approach may be resource-intensive and requires stakeholders with different perspectives and experiences to work on finding common ground. The changes that result, however, are lasting and transformational for individuals and communities.

Role of the Prosecutor

Though the opioid crisis may be the result of criminal actions by pharmaceutical companies, profit-driven drug trafficking organizations, and corrupt physicians, most local prosecutors do not encounter the big business of opioids. Instead, local prosecutors are confronted with regional gangs, street sales, dirty doctors, overdose fatalities, and the broad, complex grey area between crime, poverty, and illness. While modern prosecutors acknowledge that substance use disorder itself is not a crime and is a medical condition, they are also obligated to protect public safety with preventive measures and appropriate prosecutions.

There is no simple roadmap. In uncertain times, faced with public health and safety crises, prosecutors are called upon to marshal existing laws to address criminal conduct, receive and digest community feedback, evaluate treatment programs, and assess that justice is done in a fair and equitable way. It is a hard task. The communities prosecutors serve also have variances in law enforcement resources, drug trafficking methods, data sources, treatment options, public health approaches, public sentiment, and legal constraints. Despite these differences, the current crises have triggered a new alignment of law enforcement, public health experts, and community members.

This article provides options and highlights innovative, effective strategies for improving prosecutors’ response to opioid overdose deaths. This response ranges from increasing access to treatment to filtering overdose deaths for homicide prosecutions.

Setting Goals in a Prosecutor’s Office

Sadly, there may be very few, if any, counties in the United States that remain untouched by the opioid epidemic. For local prosecutors, the toll may not just be visible in their caseloads: Individual prosecutors may have suffered the loss of a loved one, or themselves struggled with substance use disorder. Personal reflection and shared awareness can accelerate, facilitate, and motivate prosecutors and staff members to accept new procedures and undertake extra effort. We propose the following short self-survey for prosecutors, as a starting point for setting goals for the office:

• Have any prosecutors or staff been personally affected by the opioid epidemic?
• How does this affect their perspective on the methods or goals for addressing the opioid epidemic?
• Have prosecutors and staff received training on the science of substance use disorders?
• Is there a prosecutor designated as point person on opioid-related issues and the processing of opioid overdose scenes?
• Do the family members of overdose victims have someone whom they can contact within the DA’s Office?
• Does the Office make a distinction in its charging decisions between defendants who suffer from substance use disorder and defendants who sell drugs for profit?
• What are the factors upon which the Office relies to make these distinctions?
• What are the treatment options for petty crime offenders who have substance use disorder? What about serious crime offenders?
• Does the Office have any lists of accredited treatment providers in the county?
• Has the Office developed goals and protocols for addressing the opioid epidemic?

Pooling Intelligence and Resources

Though other prosecutorial offices may be constrained by limited resources, every office has the ability to do something. Once the mission and goals of an office are established, the office can assess the available staffing, resources and needs—and get to work on developing written protocols to respond to overdoses. The following is a list of staff that can be hired or designated, if resources are available. In some instances, existing staff can be given these roles and in other instances the staffing needs can be filled by partnering with other agencies.

• Prosecutor Liaison: Designate an Assistant District Attorney to oversee opioid overdose investigations; review cases; network with local, state, and federal stakeholders; and supervise any homicide prosecutions.
• Substance Use Disorder Specialist: Hire a licensed clinician and/or social worker to oversee diversion programs, advise the chief prosecutor on policies, and coordinate outreach to opioid overdose survivors or overdose victims’ families. Staff from a local treatment provider may be able to fill this role.
• Peer Advocate: Hire a credentialed “peer advocate” to respond to all opioid-related arrests, obtain permission from defense attorneys to speak to defendants about treatment options, and conduct outreach to opioid overdose survivors and victims’ families. A peer advocate with personal experiences of substance abuse disorder and recovery may be particularly effective. Partnering with a local treatment provider may be an avenue to provide these kinds of service.
• Analyst/Paralegal/Researcher: Hire a crime analyst, paralegal, or graduate student from a local university who can gather, clean, and analyze the needed data and develop regular reports on emerging trends.

Data Collection and Analysis

Accurate and timely data, from a variety of sources, are crucial to an effective, informed response. This can be challenging as the data may be collected and stored in a variety of places, including police departments, hospitals and emergency response providers, medical examiner offices, federal law enforcement, and social service agencies. Prosecutors are trained to identify reliable systems and compelling arguments. They can work with law enforcement, local research experts, and government agencies to coordinate accurate collection and analysis.

Five years after DA McMahon reached a new awareness of the opioid epidemic, his team and their partners have fine-tuned their initiative with a crystal-clear goal: overdose prevention. They hold themselves accountable with data. For instance, Tom Ridges, the Chief of Investigations, has a whiteboard on the wall behind his desk where he tracks fatal and nonfatal overdoses in his county, daily. Declining numbers are not a measure of success, he explained: “I want there to be zero overdoses.” Zoom interview with Thomas Ridges, Exec. Assistant Dist. Att’y, Investigations, Richmond Cnty. Dist. Att’y’s Off., N.Y. (July 1, 2020) (notes on file with PCE).

Initially some groups may be reluctant to share data, but the clout of the prosecutor’s office can often be used to bring people to the table and achieve consensus around sharing information. One effective argument for the collaboration is that accurate, immediate notification and data collection can be used to obtain needed funding and resources for the problem.

Reliability and timeliness are essential. Ideally, the type of data a prosecutor should collect includes

• The number of deaths and yearly trends: A recent study on the underreporting of opioid-related death rates suggests that some of the counties most affected by the opioid epidemic present significantly underestimated opioid death rates, which put them at a disadvantage in their efforts to obtain funding. Olga Khazan, The Opioid Epidemic Might Be Much Worse Than We Thought, The Atlantic (Feb. 27, 2020), (citing Andrew Boslett, Alina Denham & Elaine L. Hill, Using Contributing Causes of Death Improves Prediction of Opioid Involvement in Unclassified Drug Overdoses in US Death Records, 115 Addiction 1308 (2020)). Additionally, if key members of the Office receive real-time alerts of overdoses, it reinforces the mission: Immediate alerts are reminders that each data point is a human life.
• The principal substances involved in county overdoses: Understanding the mix and relative prevalence of substances in the community allows prosecutors, law enforcement, and public health partners to tighten their aim. The prevalence of fentanyl in the community requires a different focus than, for instance, prescription opioids. In a jurisdiction facing an uptick in fentanyl-related deaths, overdose survivors are important sources of information about the appearance and origin of bad batches.
• The point of origin and channels for distribution: Discovering how the drugs are entering the jurisdiction is another crucial step in developing a strategy. Are traffickers connected to cartels or organizations transporting large amounts into the county? Are shipments coming in by the mail? Can those shipments be connected to websites or regional sources? Has law enforcement recruited the assistance of package delivery services? Are local, independent dealers in the county sourcing the drugs elsewhere and then reselling into their communities? Are residents traveling outside the county to buy drugs? Understanding the source, pricing, and composition of substances allows the prosecutor’s staff to hone their response.
• The demographics of overdose victims and Narcan “saves”: Prosecutors must be able to see clearly the patterns, demographics, and causes of overdose in order to devote appropriate resources to all overdose victims, regardless of their race, socioeconomic status, or neighborhood.
• Demographics of drug sale defendants: How do the demographic patterns of local drug sale arrests compare to those of overdose victims? Are all defendants screened for substance use disorder? What proportion of drug sale defendants are drug users? Does race or socioeconomic status appear to be associated with different case dispositions?

ODMAP

One tool that has proven to be highly beneficial in the real-time, accurate reporting and surveillance of fatal and nonfatal overdoses is the Overdose Detection Mapping Application Program (ODMAP). Overdose Detection Mapping Application Program, ODMAP Fact Sheet (last visited Aug. 20, 2020). Launched in 2017 by the Washington/Baltimore High Intensity Drug Trafficking Area (HIDTA), a federal task force that brings local, state, and federal actors together to develop comprehensive strategies, ODMAP is a free web software platform. It aims to provide near real-time data to public safety and public health agencies, to encourage the mobilization of responses to overdoses as efficiently and quickly as possible. The software presents overdose data within and across jurisdictions to assist local, federal, and tribal agencies, including licensed first responders and hospitals, to identify overdose spikes and clusters.

ODMAP relies on first responders and public health practitioners to enter HIPAA-neutral data about suspected overdoses in near real time and allows such data to be shared with essential stakeholders to implement a variety of rapid-response actions. ODMAP also serves as a warning system for overdose spikes. The spike alerts can warn the public, hospitals, and responders of bad batches of drugs to reduce fatalities and prompt the mobilization of resources to combat the spike. Additionally, the near-real-time alerts can be used to warn neighboring jurisdictions about spikes. The data also allow counties to target areas for naloxone distribution, harm reduction efforts, educational outreach, or treatment programs.

The more counties sign on to ODMAP, the more useful it becomes. The system provides safeguards to encourage its approval by local governments. For instance, ODMAP does not require first responders to capture HIPAA-protected material, such as names or exact addresses. Partnerships with local public or nonprofit health organizations may also reassure local lawmakers that prosecutors are not simply amassing information to enhance their surveillance capacity.

In counties where ODMAP is not utilized by prosecutors, awareness of nonfatal overdoses may depend on paper notifications, which are not readily available remotely during the pandemic and may delay awareness of “hot spots.” As ODMAP extends into more regions, the hope is that it may result in improved responses on county, regional, and national levels.

Partnerships

Partnerships with law enforcement are necessary at every step: at the scene of the overdose, in managing county-level overdose data, in outreach to overdose survivors and victims’ families, in coordinating enforcement strategies with other jurisdictions, in making charging decisions, and in working to prevent more overdoses.

Local prosecutors need a dedicated and expert investigation partner who can respond to the actual scene of an overdose. In certain jurisdictions, partnerships stemmed from serendipitous encounters between concerned prosecutors and a single officer or investigator determined to make a dent in the local epidemic statistics; in others, partnerships are intentionally cultivated through training programs and assignments. Where local law enforcement does not have the resources to serve as the primary partner in opioid overdose investigations, prosecutors have developed other solutions.

For instance, forming partnerships with the US Attorney’s Office can result in a significant expansion of resources. In Orleans Parish, Louisiana, and Shelby County, Tennessee, specialized ADAs have been cross designated as Special Assistant US Attorneys. In that role, they identify state- or county-level narcotics cases that may be deemed eligible for federal prosecution, investigate them, and take them to trial.

Prosecutors also should do a survey of treatment programs serving their jurisdiction and assess their effectiveness. With this knowledge, prosecutors can coordinate and support treatment programs in partnership with substance use disorder treatment providers, law enforcement, the courts, and the defense bar. Certain jurisdictions have systems in place, ranging from pre-indictment outreach programs where defendants are offered treatment when they are first taken into custody (Buffalo Opioid Intervention Ct., (last visited Aug. 28, 2020)) to specialized drug courts that monitor a defendant’s treatment following the entry of a guilty plea. Criminal Drug Treatment Courts, N.Y. State Unified Ct. Sys., (last visited Aug. 28, 2020). The full range, operational details, staffing requirements, and success metrics of these programs are beyond the scope of this article, but there is general consensus that early, repeated, and meaningful intervention is a critical piece of a prosecutor’s approach to the opioid epidemic. Ctr. for Ct. Innovation, The 10 Essential Elements of Opioid Intervention Courts (2019).

Prosecutors may not be able to meet with family members of every overdose victim, but they should strongly encourage law enforcement to provide families with information and key updates in every single case. There may be hundreds of overdose deaths a year in a county, but for each family, the incident is a unique, devastating, life-changing incident that can leave too many unanswered questions. Families also may be able to provide information to law enforcement about substances and suppliers.

Prosecutors should meet with family members in the cases that they decide to pursue, as early as possible, to explain the process, outline the likely outcomes, and hear the families’ positions. The prosecutors interviewed for this article hear tough questions from families about the viability of homicide charges and sometimes requests for more lenient dispositions. These are important conversations. It remains the prosecutor’s duty and prerogative to set realistic expectations and make charging decisions based upon the law and the evidence. However, family members may have valuable knowledge of a supplier’s own substance use disorder that can provide valuable context for prosecutorial decisions.

Prosecutors also can offer connections to grief support and reliable information about substance use disorder. Timely, truthful, and compassionate outreach can save more lives. In fact, asking family members to share information and providing safe options for them to do so (such as anonymous tip lines) can also prevent the spread of substance use disorders.

While prosecutors and police officers benefit from reliable, accurate, immediate notification and comprehensive data, they are not experts at collecting or analyzing public health information. Government, nonprofit, private, and academic public health teams, however, can serve as the research arm for opioid overdose task forces offering a measure of accountability. They are also often experienced grant writers that can assist with applying for funds.

Universities are uniquely positioned to help combat this epidemic because of the faculty and student body who need opportunities for research and publication. Where a prosecutor’s office does not have a preexisting partnership, the best first step is a direct call to the chair of the relevant university department. The prosecutor should approach the meeting with a vision for what the partnership looks like, including the allocation of responsibilities, staffing needs, and overall goals. For instance, if a district attorney’s office is seeking to participate in ODMAP, the researchers can propose to examine the data for predictive risk factors.

Overdose-Related Prosecutions

Overdose cases—especially when they are fatalities—may be perceived as an opportunity for escalated charges. However, the reverse may be true in certain cases. What overdose investigations require are detailed inquiries, expert consultations, thoughtful communication with family members, community partnerships, data collection, and the selective exercise of discretion to prosecute homicide charges. Prosecutor offices should lead reviews of current procedures regarding when to prosecute, whom to prosecute, and which charges to pursue. Office practices should reflect the core prosecutorial values of equal justice, public safety, and accountability.

As much as prosecutors need to know their victims, they also need to know their suspects. Prosecutors often rely on a possibly unreliable distinction between “users” and “dealers” to determine who should be charged with a crime and who should be offered treatment and diversion. There is an expansive grey area between these two poles, however, that is uniquely challenging in the context of overdose investigations.

Also, rarely do prosecutors benefit from a clinical evaluation, alerting them to absence or presence of a substance use disorder, or its severity. Instead, the criteria often applied by prosecutors to identify “dealers” focus on a suspect’s profit motivation, business practices, marketing strategies, and volume of sales. Prosecutors also take into consideration whether a dealer is selling to support their own habit—but again, that determination generally is based upon law enforcement principles, not the DSM-V.

Prosecutors gain valuable insights from licensed clinicians, who can help them to evaluate the existence or severity of substance use disorder. Clinicians rely on the Diagnostic and Statistical Manual of Mental Disorders (DSM) to identify symptoms and categorize the disorder on a scale of mild to severe. The DSM instructs clinicians to evaluate the presence and severity of the following symptoms: opioids used in greater quantities or for a longer time than intended, use continued despite attempts to reduce or stop, time spent to obtain opioids, cravings, use interfering with professional or home responsibilities, continued use despite interference with social relationships and activities, continued use despite risks, continued use despite awareness of problems caused or worsened by the habit, drug tolerance, and withdrawal or the use of opioids to avoid withdrawal. (One criterion was eliminated during the latest revision of the DSM: the recurrence of legal problems or arrests related to opioid use.) Substance Abuse & Mental Health Servs. Admin., Impact of the DSM-IV to DSM-5 Changes on the National Survey on Drug Use and Health (June 2016), ch. 2, Substance Use Disorders, tbl.2.1.

Prosecutors may obtain critical information from other experts and stakeholders as well. Defense attorneys are part of the equation: They must be willing to provide prosecutors with information about the defendant’s history of substance abuse, as well as any preexisting diagnoses. Other sources of information can be the defendant’s previous participation in diversion programs, input from family and friends, information found at the overdose scene, or other facts and circumstances discovered during the investigation. Having a deeper understanding of the defendant will help to inform the complex prosecutorial decisions.

Accountability is a key component of both substance use disorder treatment and criminal justice. In the “grey area” of drug users who supply substances to overdose victims, there are no easy solutions. On the one hand, incarceration generally continues to preclude medication-assisted treatment, which is considered to be the most effective in reducing drug use and mortality. Am. Soc’y of Addiction Med. (ASAM), National Practice Guideline for the Use of Medications in the Treatment of Addiction Involving Opioid Use (June 2015). In addition to being a questionable exercise of prosecutorial authority, the indiscriminate use of homicide charges to induce cooperation may expose a person suffering from substance use disorder to the excruciating experience of going “cold-turkey” in a prison cell, as few carceral facilities in the United States offer medication-assisted treatment for opioid use disorder. Substance Abuse & Mental Health Servs. Admin. (SAMHSA), Medication-Assisted Treatment (MAT) in the Criminal Justice System: Brief Guidance to the States, PEP19-MATBRIEFCJS (Mar. 2019)).

On the other hand, some drug dealers who are also drug users can present a serious risk to public safety. There is no specific formula for making these decisions; however, prosecutors can create a consistent, thorough, and collaborative process to make sure decision making is informed and equitable.

Considerations for Homicide Charges

While law enforcement officers and prosecutors are investigating drug sellers and the overdose death, they may uncover facts that warrant consideration of more serious charges. Some or all of the following factors may support a homicide charge. These criteria can be of particular importance in states with death by delivery statutes, in order to maintain the integrity of those prosecutions.

• Nexus between suspect and victim: There is a nexus between the suspect and the victim that satisfies the statutory requirements, i.e., the suspect delivered the substance directly to the victim or there is evidence of the supply chain between the suspect and the victim. Prosecutors only should consider an extended nexus where there is disproportionate evidence of knowledge and notice; for instance, where a pharmacist, physician, or pharmaceutical executive has particularized knowledge of the risk to a community and deliberately supplies deadly substances.
• Suspect does not have SUD: The suspect does not appear to have a criminal or medical history indicative of substance use disorder.
• Suspect knew the nature of the drug sold: The suspect knew the composition and potency of the drug sold and that it created a risk of overdose.
• Suspect marketed the drug based on potency: The suspect marketed the product based upon its composition and/or potency.
• Suspect knew the risks to the victim: The suspect made statements to the victim, about the victim, or in relation to the victim’s death demonstrating knowledge of the risks to the victim.
• Suspect was aware of the victim’s vulnerabilities: The suspect was aware of any of the victim’s unique vulnerabilities, such as recent detoxification, earlier overdoses, or suboxone treatment.
• Suspect is part of a drug distribution organization: The suspect is part of an organized drug distribution network that has supplied highly potent substances resulting in overdoses.
• Suspect is high on the distribution chain: The suspect is at or near the top of that distribution chain.
• Suspect did not assist the victim: The suspect deliberately failed to obtain assistance for the victim.
• Suspect misdirected the investigation: The suspect attempted to misdirect the investigation.

Though it may be extremely useful to know whether a suspect can provide information about higher-level suppliers, homicide charges should not be brought simply to obtain leverage for cooperation agreements or to encourage a plea.

Death by Delivery Statutes

Death by delivery laws allow prosecutors to seek homicide charges when a drug transaction results in death and certain other factors exist. Roughly half of the states have adopted them with varying elements, standards of causation, and sentencing requirements. These statutes have been around for some time but have not been used frequently. Between 2011 and 2016, however, there was a 300% increase in drug-induced homicide charges (Zachary A. Siegel, Despite “Public Health” Messaging, Law Enforcement Increasingly Prosecutes Overdoses as Homicides, The Appeal (Nov. 8, 2017)), indicating not just the increase in deaths, but also the belief that homicide prosecutions will solve the crisis.

Death by delivery laws can present a number of challenges. One common issue is the level of causation required by the statute. Some require that the opioids delivered to the victim were the “but-for” cause of their death, meaning that had the victim not consumed the drugs delivered by the defendant, they would still be alive. Toxicology reports that report the presence of multiple substances in a sample, that could have come from several sellers, can immediately create a barrier to charging death by delivery in some states where “but-for” causation is required. In Wisconsin and Michigan, by contrast, a substance does not have to be the sole cause of the victim’s death for the purpose of supporting a homicide charge. In fact, Michigan only requires that the drug consumed be considered a contributing factor to the death, while Wisconsin requires that the substance be identified as a “substantial factor.” Mich. Comp. Laws Ann. § 750.317a; Wis. Stat. § 940.02(2)(a).

A substantial and crucial risk factor is that frequent recourse to death by delivery charges will create reluctance among drug users or witnesses to report overdoses. In states where lawmakers have not passed a death by delivery statute, existing homicide laws may capture egregious conduct by for-profit dealers. Manslaughter charges, for instance, require proof of recklessness—specifically, that the defendant was aware of and recklessly disregarded a substantial risk of death. (In a 2019 decision, the New York’s highest court paved the way for manslaughter charges in drug delivery cases without compromising the prosecution’s substantial burden of proof: “There is no basis to conclude that the legislature intended to exclude from the ambit of the homicide statutes the prosecution of a defendant who, with the requisite mens rea, engages in conduct through the sale or provision of dangerous drugs that directly causes the death of a person. The fact that the legislature has separately criminalized the illegal sale of controlled substances does not require a different conclusion […]. We agree with the Appellate Division that ‘all that was needed for the manslaughter charge to be sustained was for the People to satisfy its elements’.” People v. Stan XuHui Li, 2019 NY Slip Op 08544 (Nov. 26, 2019).)

The elements of the crime are a strong fit for cases in which prosecutors have evidence of profit-driven behavior and indifference to human life. In a doctor pill-mill case, prosecutors may marshal evidence of a physician’s training, credentials, and knowledge as part of their proof. This type of proof is not as readily available for illicit drug transactions, though text messages, defendant statements, and other evidence indicating the seller’s knowledge of their product and/or customer may exist. The manslaughter bar may be high and requires a detailed review of the evidence, but homicide is a weighty charge, carrying significant sentences. Criminally negligent homicide is another recourse for prosecutors, for instance, where fentanyl is present in a substance without the seller’s or user’s knowledge. Felony murder statutes may or may not be applicable, depending on several factors: whether drug sale is a qualifying offense, whether the death must occur during the commission of the felony (rather than as a result of it), and whether the statute may apply to poly-substance overdoses. Mark Neil, Prosecuting Drug Overdose Cases: A Paradigm Shift, 3 NAGTRI J., no. 1, Feb. 2018, at 26.

Good Samaritan Laws

Fear of prosecution may prevent fellow drug users, drug suppliers, overdose witnesses, or even uninvolved bystanders to leave someone overdosing without calling for help. Fear may even incite witnesses to destroy evidence at the scene of an overdose. Understanding Good Samaritan laws, which provide varying levels of immunity for bystanders who call for assistance, can help prosecutors develop public education messages and make appropriate charging decisions. In fact, one year after the adoption of a Good Samaritan law, a 2011 study from Washington State confirmed that 88 percent of respondents were now more likely to contact emergency services in the event of an overdose. See Univ. of Wash. Alcohol & Drug Abuse Inst., Washington’s 911 Good Samaritan Drug Overdose Law: Initial Evaluation Results, Info Brief (Nov. 2011). More recently, a 2018 New York State study demonstrated that awareness of the Good Samaritan law is associated with 911 calls for overdose assistance. Anrea Jakubowski, Hillary V. Kunins, Zina Huxley-Reicher & Anne Siegler, Knowledge of the 911 Good Samaritan Law and 911-Calling Behavior of Overdose Witnesses, 39 Substance Abuse 233 (2018). The challenge and mission of modern prosecutors are to reinforce the positive power of Good Samaritan laws while working toward accountability for drug traffickers.

State statutes all have the same intention of encouraging medical assistance requests, but the extent to which they do so can differ greatly. For instance, the Tennessee Good Samaritan law establishes immunity from prosecution for “drug violations.” Tenn. Code Ann. § 63-1-156 (defining “drug violation” as simple possession or casual exchange (as in § 39-17-418), or drug paraphernalia (as in § 39-17-425) covering simple possession, casual exchange, or drug paraphernalia). However, the statute only protects individuals experiencing their first overdose. Tenn. Code Ann. § 63-1-156(b) (“This immunity from being arrested, charged, or prosecuted shall apply to the person experiencing a drug overdose only on the person’s first such drug overdose.”). This limitation is not present in the Massachusetts Good Samaritan statute. Additionally, Massachusetts treats immunity differently. Unlike Tennessee, Massachusetts does not protect individuals from being charged with “distribution or possession of a controlled substance with intent to distribute.” Mass. Gen. Laws Ann. ch. 94C, § 34A(d). Meanwhile, Michigan’s Good Samaritan law exempts individuals seeking medical assistance only when “he or she possesses or possessed an amount sufficient only for personal use.” Mich. Comp. Laws Ann. § 333.7403(3)(a)–(b).

Good Samaritan laws can evolve. An earlier version of the Wisconsin Good Samaritan statute provided immunity to persons calling 911 seeking medical assistance for someone experiencing an opioid overdose, but not the individual experiencing the overdose. (Bruce Vielmetti, Mom Who Overdosed on Her First Heroin Use Is Facing a Felony, While Her Supplier Gets a Break, Milwaukee J. Sentinel (Oct. 23, 2018). To combat the rising number of opioid deaths in the state, Wisconsin expanded its Good Samaritan law to protect the individual actually experiencing the overdose. Now, if someone receives medical treatment for an overdose, they are offered a deferred prosecution agreement (DPA), conditioning dismissal of the charges upon completion of substance use disorder treatment. Zoom Interview with Patricia Daugherty, Asstant Dist. Att’y, Milwaukee Cnty. Dist. Att’y’s Off., Wis. (July 9, 2020) (notes on file with PCE) (discussing Wis. Stat. Ann. § 961.443(2)(b)2)).

Although Good Samaritan laws vary in how much immunity they provide for drug possession or sale charges, none provide immunity for offenses arising from overdose-related deaths.

Community Outreach

The word “community” is an inadequate shorthand for a complex network of families, businesses, professionals, educators, full- and part-time residents, homeless individuals, incarcerated people, and legislators. Many members of a community may be struggling with substance use disorders, grief, helplessness, and drug-related disturbances, as well as unsafe conditions due to drug-related activity. Community members on the front lines of the epidemic also may be seeking support or purpose after shattering loss. Prosecutors can find formidable partners among the community groups who dedicate tremendous energy and research to the cause of addressing the opioid crisis.

In all partnerships, whether for treatment, research, or overdose death scene processing, prosecutors can draft simple protocols to outline confidentiality rules, respective responsibilities, access to data, job descriptions, public communication guidelines, core values, charging standards, and investigative strategies. These written agreements can serve to clarify difficult issues and the nature of partnerships. One of the most important recommendations of the prosecutors interviewed for this article was to create sustainable systems, which can be particularly challenging when there is change in leadership and no written protocols.

With notification of overdoses and information about the drug source(s) comes a crucial decision for the prosecutor: to prosecute or not to prosecute, and if so, what to charge. In some jurisdictions, only the supplier(s) of the substances that caused the overdose may be targeted for arrest and prosecution. In others, even an overdose survivor may be prosecuted for possessory crimes.

Identifying and prosecuting drug traffickers saves incalculable numbers of lives. Seeking appropriate accountability for individuals affected by substance abuse disorder has clinical and social value. Accurate data collection, a thorough investigation, and previously established criteria will support fair and equitable prosecutorial decisions, thus benefiting public safety and the interests of the community.

Staten Island District Attorney’s Office Example: Not Just about Convictions

The Staten Island District Attorney’s Office in New York provides a good example of how modern prosecutors approach the complex intersection of issues presented by opioid overdose deaths. Following team and community consultations, the Office landed on a simple goal: saving lives.

It also decided to undertake an obligation to make treatment available, promote accountability, provide closure to survivors and grieving families, and enforce the law. Doing it alone was not an option. After seeking grants and researching potential partnerships, the Office expanded its collaboration with the DEA and FBI and joined forces with the federal HIDTA task forces, public health authorities, nonprofit public health organizations, universities, and treatment providers to maximize the available resources and expertise. Everyone benefited from the pooled intelligence and resources. Now, in Staten Island, first responders to overdose death scenes record non-HIPAA-sensitive data for uploading into the federal ODMAP tracking system, which allows the county and surrounding areas to track bad batches and detect trends. ODMAP Fact Sheet, supra.

Police officers respond with an investigative checklist and, consistent with search and seizure law, investigate the scene to determine the cause of the overdose. They establish contact with family members, witnesses, and friends of the victim and follow up with any survivors. The Office maintains robust and resourceful drug investigation and prosecution activities, in partnership with local, state, and federal law enforcement. Overdose death scene investigations have led to major drug prosecutions, including Damien Rice, a notorious heroin dealer who ran a long-standing operation with his son and was linked to eight fatal overdoses. John Annese, Staten Island Heroin Kingpin Linked to 8 Fatal ODs Will Get 16 Years Behind Bars, N.Y. Daily News (Oct. 3, 2019).

In a paradoxical indication of the county’s success in reducing the supply of drugs, the Office recently realized that Staten Island drug users were traveling to nearby New Jersey for their supply.

However, the Office only has charged manslaughter in one case, where the dealer, Stephen Cummings, made incriminating statements on a recorded phone call, betraying his knowledge of his victim’s vulnerability and the potency of his product. In that case, the Office secured the state’s first guilty plea to second-degree manslaughter for a dealer of inherently dangerous illicit substances. While the Office remains vigilant and prepared to address other egregious cases, success is not just about convictions. Zoom interview with Thomas Ridges, supra.

Conclusion

Prosecutors are problem solvers. They are unafraid of hard realities, linked to all key players in local, state, and federal government and entrusted with the mission of doing justice for all. They can and should take the lead in bringing together law enforcement, hospitals, treatment providers, community agencies, schools, community members, and families to save lives and bring the epidemic to an end.