a pair of hands holds several bags containing literature and one containing a nasal applicator for naloxone. One of the pieces of literature reads: Opioid Overdose Prevention and Survival
Madison Substance Awareness Coalition Coordinator Heather Sharp shows a package of naloxone, a medication that either snorted or injected can reverse an opioid overdose in seconds. Photo credit: Taylor Knopf

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By Taylor Knopf

UPDATED 4/11/19:

The Senate Judiciary Committee passed the Death by Distribution bill Wednesday afternoon with some changes. It will go to the rules committee before it’s heard on the Senate floor.

The bill was amended to clarify the term “distributor” to say a person who “sells and delivers” a controlled substance. Lawmakers added “that nothing in this section restricts or limits rights and immunities under the Good Samaritan law.” Advocates and some lawmakers were concerned that other drug users would be afraid to call 911 in the event of an overdose if they shared their product with the person who needed medical attention.

If someone sells a drug to a person who overdoses and the seller calls for emergency responders, he or she would not be protected under the Good Samaritan Law, according to bill co-sponsor Sen. Danny Britt (R-Lumberton).

“Selling drugs is not one of those crimes that the Good Samaritan Act protects someone from,” he said.

A line was also added to the bill at the request of the NC Medical Society that states: “A valid prescription issued to an individual by a practitioner for a legitimate medical purpose is not unlawful distribution.”

Advocates were not given a chance to speak on the bill or changes made on Wednesday. Virgil Hayes, with NC Harm Reduction Coalition, said he and others were not given time to look at the amendment before it was passed.

As written, Hayes said the bill would not catch high-level drug dealers as it’s intended. Instead, he said it will sweep up a lot of “runners,” low-level people who sell drugs at the street level to support their own drug use.

State lawmakers are considering adding a “death by distribution” law to the books to give district attorneys a stronger tool to prosecute drug dealers in the wake of an ever-increasing number of drug overdose deaths.

According to the proposed legislation, if someone gives a drug to another person and the second person dies as a result, the first person can be charged with a Class C or Class B2 felony. Examples of crimes in these categories are kidnapping and second-degree murder, which carry sentences ranging from three and a half to 32 years in prison.

Advocates fear that instead of prosecuting high-level drug dealers, family members and friends of the deceased will most likely be prosecuted under this new charge because so many people obtain drugs from other users they know.

Members of the substance abuse recovery and harm reduction communities say this bill will further deter people from calling 911 for medical help when a person is overdosing if they fear a potential second-degree murder charge.

Right now, there is a Good Samaritan Law in place that provides legal immunity from drug-related charges if a person calls for medical help for someone who is overdosing. Lawmakers are also considering a bill this session that would clarify and strengthen Good Samaritan immunity.

Tessie Castillo with NC Harm Reduction Coalition talks to advocates who mostly were excluded from a small hearing room, after the Senate Judiciary committee hearing on the death by distribution law. Photo credit: Taylor Knopf

Dozens of advocates filled the Senate Judiciary committee room where lawmakers took up the bill for discussion on Tuesday and spilled out into the courtyard outside. The bill is set to come back before the same committee Wednesday afternoon. In addition, a House committee will consider the companion bill in that chamber on Wednesday morning.

Proving malice

Ben David, district attorney for New Hanover and Pender Counties, told the committee that this bill is needed because it’s difficult to use current law to convict drug dealers of second-degree murder which requires a prosecutor to prove malice to a jury.

Under the death by distribution law, the district attorney would not have to prove mal intent for a Class B2 felony charge.

“When juries hear the word ‘malice’ and ‘second-degree murder,’ they don’t understand it,” David said. “There are still people who blame the victims. Death by distribution is something that needs to be punished.”

He said that of the 52 cases of drug dealing he prosecuted last year, he only successfully indicted three and they all plead down to involuntary manslaughter. He said that plea doesn’t “meet the harm that has been caused.”

“We need to have tougher penalties for those who are profiting by selling poison in our community,” David said.

He said he’s supportive of immunity provisions in the Good Samaritan Law and this is not intended to “wage war on anybody who is in the grips of addiction and people who are friends with them.”

David acknowledged that the user who also sells a little on the side to his friends to support his drug habit is a “gray area” and something that needs to be addressed.

But even prosecutors can’t agree on the proposal.

Wake County public defender, and former prosecutor, Mary Stansell said she disagreed with David, saying there are sufficient current laws to prosecute drug dealers. She also spoke as a mom who lost a son to an overdose and whose daughter’s life was saved from an overdose by a good samaritan who called 911.

Several senators took issue with the definition of “distributor.” Sen. Floyd McKissick (D-Durham) asked the bill sponsors for language clarification to exclude friends, family members, and people who are not high-level drug dealers.

Bill sponsor Sen. Dan Bishop (R-Charlotte) said in a later interview that “making laws is a question of language.” He said he wants to investigate implications to each group this law could affect.

Advocate response

Tessie Castillo, with the NC Harm Reduction Coalition, spoke on behalf of the dozens of advocates in the room and in the hallways. She said everyone wants a solution to the opioid crisis and to stop the deaths, but that this bill would have unintended consequences.

“We want to go after dealers, and that’s the intent,” she said. “I believe that some DAs will use it that way.”

“But we have evidence from other states that have already passed these bills that shows the majority of the people prosecuted under death by distribution laws have been friends and family members who were addicted themselves and shared with other people,” Castillo said. “The intent to go after the dealer is the exception, not the rule, when these laws are applied.”

Tarrah Callahan, with Conservatives for Criminal Justice Reform, said she understands the intent but is worried about overcriminalization with this bill.

“The impact in other states has been really chilling in terms of reporting overdoses,” she said.

Julie Cummins of Chatham County told lawmakers about her son Boone who died at 18 years old from a drug overdose. She said his friends were too afraid of getting in trouble to call 911. She and her daughter, Elly, talk at schools spreading awareness about the good samaritan laws.

“If you pass this bill, those people at the scene of a possible overdose are going to be much less likely to call if they think there’s a chance of a murder charge,” Cummins said.

Donald McDonald, a North Carolina-based recovery activist, said he thinks this bill is “an emotional response by lawmakers.”

“It will lead to more disease and death and fewer North Carolinians seeking help,” McDonald said.

Taylor Knopf

Taylor Knopf covers rural and mental health news. She previously wrote for The News & Observer as a politics and general assignment reporter. Before that, she worked at a small daily newspaper in southern...