North Carolina legislators want to give prosecutors a new tool to go after big-time drug dealers: new felonies for those who sell drugs to people who die of an overdose. But those who work with users of opioids and other substances covered by the proposal warn it could have unintended—and deadly—consequences. 

The House passed its version of the so-called death-by-distribution legislation Monday. (The Senate approved its bill last week, but after the House’s vote, the Senate’s version went back to a committee for revisions.) About twenty states have similar laws to charge distributors of fatal drugs with homicide or another felony. 

“Bills like this drive up rates of overdose death because it decreases the probability of people reaching out for help in the event of an overdose,” says Virgil Hayes, advocacy and program manager for the North Carolina Harm Reduction Coalition.

The bill would apply to opioids, cocaine, methamphetamine, and depressants. Dealers who sell to people who then die from using them would be charged with a class C or B2 felony—classes that include second-degree rape and second-degree murder, respectively—depending on their prior record. Class C felonies carry a maximum sentence of just over nineteen years; class B2 felonies, more than forty years.

“I don’t believe we should criminalize the addiction, and this bill does not do that,” bill sponsor Representative Dean Arp said during a recent committee debate. “… But for those people who peddle poison for profit and kill kids, the hand of justice cannot be soft. Justice demands more.”

Death-by-distribution laws date back more than three decades, to the passage of a federal law aimed at preventing drug-related deaths. North Carolina already has a law that allows prosecutors to charge someone with drug-induced homicide, but unlike the new proposal, the existing law requires proving someone acted with malice. 

Proponents say that’s too hard a threshold to meet—according to the Health in Justice Action Lab at Northeastern University School of Law, North Carolina prosecutors have brought just seventy-five drug-induced homicides charges in the twenty-five years since the state law was enacted—and prosecutors need to be able to cast a wider net.

But it’s not clear that the new charges would deter people from using or selling drugs. A 2018 Pew review of forty-eight states found no relationship between drug imprisonment and drug use, drug arrests, and drug-related deaths. According to an analysis by the Drug Policy Alliance, some of the states that have most aggressively sought to charge distributors in buyers’ deaths have also seen overdose rates go up.  

In an attempt to address concerns that the bill would deter people from calling 911, lawmakers added an amendment last month exempting from prosecution those who get immunity under the state’s Good Samaritan law. That law protects people who call 911 while they or someone else is overdosing from being prosecuted for the possession of small amounts of drugs.

But neither that provision nor the Good Samaritan law really addresses the reality of how these drugs are used, Hayes says. They’re often shared or bought from someone who sells small amounts to support their own habit. 

The death-by-distribution bill applies to anyone who “unlawfully sells, or delivers as part of a sale, at least one certain controlled substance” to a user who dies as a result. At a time as frantic as an overdose, people aren’t going perform “mental calculations” to figure out which laws they have immunity from and which they don’t, Hayes says. 

“In reality, I just don’t see the Good Samaritan provision as-is doing much of any good with this bill,” Hayes says. 

Critics point to drug-induced homicide prosecutions as a signal of what’s to come if this proposal becomes law. Through a review of news reports from 2000 to 2017, the Health in Justice Action Lab found that, nationally, half of people accused of drug-induced homicide weren’t dealers, but rather a caretaker, relative, friend, or partner of the person who died. 

“In addition to not affecting its intended target of high-end traffickers,” Hayes says, “what will end up happening if this law is put into place—we’re going to see more people incarcerated who are struggling with addiction.”

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