A few years ago, I found my boyfriend overdosed on the kitchen floor. I had handled the syringe he used because I found it in his stuff and then put it somewhere “safe” (I was sober a year myself but not thinking straight). The EMTs I called reached him before he could die. But what if they hadn’t? Would Greg Abbott say I was guilty of murder?
He just might. The Texas governor has pledged to sign a recently passed bill that would reclassify overdoses as “poisonings,” clearing the way for murder charges against anyone who provides a lethal dose—whether that provider was a friend, dealer, or person who happened to be in the same room. Still seeking top place in the cruelty contest, Florida passed a law allowing prosecutors to seek the death penalty for drug-induced homicide, or DIH, cases, again regardless of the supplier’s role. The Florida law also opens a new front in the criminalization of being around drugs: A nonfatal overdose could catch the supplier a second-degree felony.
The idea is not new. DIH (sometimes “drug delivery resulting in death”) has been available as a criminal charge since the first drug war. And that’s how we know how well it works. Historically, we know the approach is futile, and there’s even more overwhelming evidence of the active harm it can do (some studies have found it leads to more overdoses). Still, DIH laws are a fantastic way for politicians to pretend they’re doing something about the opioid epidemic, and so they have come into vogue again.
The idea is a retread at the federal level as well. There have been ways to indict people on DIH charges since the idea first came around almost 50 years ago. But that hasn’t stopped lawmakers—particularly Republican ones—from seizing the opportunity to make the most of doing the least that they can. In February, Marco Rubio, Josh Hawley, Ted Cruz (I don’t know why I even bother listing them; you know who they are), reintroduced legislation to treat distributing fentanyl that results in an overdose as a first-degree felony murder. As Rubio put it: “If the illicit sale of this drug results in death, then the seller should be charged with felony murder. That is a simple, commonsense step we can take right now to help turn the tide and protect our communities.”
I’ll grant him “simple” there, sure.
In practice, such laws look like this: Three Memphis teens overdosed in the parking lot of a high school, hours before graduation. One 17-year-old survived. She’s been charged with second-degree murder. In Texas, at least two counties appear to have taken Abbott’s endorsement of the coming state law as license to go ahead and use traditional murder statutes against teenagers for selling drugs to other teens. In California, the San Luis Obispo District Attorney’s website brags about their second arrest of this kind (though they seem to have stuck with charging adults) in the same press release that notes that street drugs these days frequently masquerade as pharmaceuticals and “there is no way to know who made them, where they came from, or what is in them.”
Those are all stories from last month.
Prosecutions of this kind appear to increase with the attention paid to, if not the actual scope of, the problem. We don’t really know, because no one keeps a true count. One organization did a tally of news stories about them, showing a steep increase, from 200 in 2007 to 700 in 2019, then an equally sharp decline over the last couple of years with just a couple of dozen reported in 2022. This might be a function of an actual decrease in use of the laws, or it’s a sign that the sort of people being charged literally don’t count.
Because obviously—we used to be on the same page here!—arresting your way out of a drug problem has never worked. Lord knows, if it worked, given the number of Americans arrested in this war, we would know that by now. But it doesn’t. You just wind up with more poor people, nonwhite people, and addicts in prison, which … ah, I see. That might be the point.
However, I’ve been in recovery long enough myself to know many people who sincerely believe, or want to believe, that drug-induced homicide laws might help. Sometimes they are blinded by structural racism or their own ideology to other solutions. But I’ve felt the helplessness and rage of losing someone to addiction. Having someone to blame for that pain is a temptation few can resist.
You hear this despair in the voices of some lawmakers. As tempting as it is to see pure cynicism in their motives, about a quarter of all Americans know a victim of the overdose epidemic, and statehouses are not immune. The Republican sponsor of a Utah DIH bill admitted, “This is maybe a little out of desperation.” In Colorado, the GOP sponsor acknowledged that the bill wasn’t even about making good policy. “This bill is all about trying anything,” he said, “I don’t know how we couldn’t do whatever we could, whether it works or not.”
Also in Colorado, Democratic state representative Marc Snyder echoed these thoughts on an even more personal level: “I have a family member in the throes of a fentanyl addiction. I’m somewhat of a desperate parent who is looking for any answers I can find. I’m willing to try anything.”
It’s easy to forget that parents of addicts and alcoholics have been saying some version of “I’ll do anything” for centuries, and yet here we are. The opioid crisis is a manifestation of one of the most formidable and oldest enemies humans have known. There are ambitious structural solutions, like blanket decriminalization (see: Portugal) and the elimination of prisons as Americans know them (see: Sweden). But there’s very little for lawmakers (or parents) to do on their own.
I don’t say this to discourage us from trying to combat the drug epidemic, just to distinguish this fight from the ones where people have a clearer path to some kind of progress. If politicians want to look like they’re doing something to address a family tragedy, there are other, equally urgent voices to listen to. This past legislative session, Texas parents cried out, “Address the gun problem! Protect our children!” and the state politicians got it backward, making guns more available and trying to legislate trans kids out of existence. (Some further evidence that Republicans prioritize punishment over aid: In Texas, a bill that would decriminalize fentanyl test strips—a huge step in preventing accidental overdoses—did not make it out of committee.)
For conservatives, there is a common thread through all these issues: They want to punish a specific kind of person (whether that’s drug users, trans people, or “bad guys with guns”) rather than be an ally to those harmed. They want to wage a war with an enemy they call evil, rather than do any good at all.