By Taylor Knopf
UPDATE 7/8/19: Gov. Roy Cooper signed “Death by Distribution” into law. If you sell a drug to someone and they overdose and die, you can now be charged with second degree murder. Prosecutors say they need this measure to put drug dealers behind bars. Advocates warn fewer people will call EMS during an overdose, resulting in more deaths.
At the state General Assembly, there are two forces trying to stop opioid overdose deaths. But they seem at odds with each other.
Prosecutors are concerned with stopping drug dealers and their ability to supply the drug market. Meanwhile, public health advocates are lobbying lawmakers in what they claim is the best interest of drug users’ health and safety.
There are three pieces of opioid legislation moving through legislative committees right now. The first two encourage people who use opioids to call for help during an overdose and to protect themselves against infectious diseases and overdoses.
The third would allow prosecutors to charge an individual with second-degree murder if they sold a product to someone who then overdosed and died from it. Lawmakers and law enforcement say this measure is needed to put away high-level drug dealers.
Harm reduction advocates argue that lines between drug dealers and drug users are blurry. Many substance users buy and sell among each other, or simply sell enough to support their own drug use habits.
“We are dealing with the same population,” said Virgil Hayes with the NC Harm Reduction Coalition. “Without taking the complexities into account, laws like this end up just countering all the criminal justice reform efforts and all of the harm reduction efforts.”
To make things even more confusing, some of the same lawmakers are sponsors on all three of these bills.
“I think from their perspective, they want to appear tough on crime, but only want to appear tough on crime for those who are drug dealers,” Hayes said. “The problem with that narrative is that it completely overlooks the complexity of the issue and the fact that a number of people who are struggling with addiction can and do sell drugs.”
He said, though, that usually they’re selling small amounts, enough to support their addiction, not necessarily to get rich.
Public health experts say that these harsher penalties will result in fewer calls to EMS during overdoses, more fentanyl entering drug market and more deaths.
The Good Samaritan Law
One bill moving through the legislative process without much discussion would expand and clarify the Good Samaritan Law, passed in 2013. It offers legal protection from drug-related misdemeanors — such as possession of small amounts of drugs or paraphernalia — for people who call 911 to report an overdose. Since people often use drugs together, the fear of legal repercussions could deter them from calling for help when someone else is overdosing, as frequently happened in the past.
There’s been confusion on whether the person who overdosed also receives the same legal immunity. Some people report being revived by first responders only to spend the night in jail.
Senate Bill 106 would amend the original Good Samaritan Law and clarify that victims of an overdose receive the same legal immunity as the person who called for help. So far, the legislation has been met with bipartisan support as it passed through the Senate and is making its way through the House.
Opioid Epidemic Response Act
North Carolina legalized syringe exchanges in 2016, but there has been a ban on the use of state funding to buy clean injection supplies, which have been shown to reduce the spread of HIV and hepatitis C.
The Opioid Epidemic Response Act would lift that ban and open up the potential for new streams of funding to syringe exchanges, which are mainly run by nonprofits with a patchwork of grant funding.
The bill would also decriminalize drug testing supplies, such as test strips to identify the presence of fentanyl cut into heroin.
“Current law criminalizes the possession of testing equipment to analyze the strength and purity of a controlled substance,” said bill sponsor Sen. Jim Davis (R-Franklin) to the Senate Health Committee on Wednesday. “We think the ability for drug users to have testing equipment would decrease the number of deaths due to opioids in North Carolina.”
In 2017, there were 1,884 opioid-related deaths in North Carolina, 75 percent involved heroin, fentanyl or a fentanyl analogue, according to state Department of Health and Human Services data.
Fentanyl is extremely potent and can be deadly. A little goes a long way. Law enforcement continues to find heroin and many other different controlled substances including cocaine laced with it.
The bill would also eliminate the legal requirement that medical providers register with North Carolina’s DHHS to prescribe buprenorphine (Suboxone), an addiction treatment medication. There’s already a federal waiver prescribers must register for and obtain in order to write orders for the medication. Bill sponsor Davis said this extra step is an unnecessary hoop for providers to jump through.
As senators discussed the bill in a Senate Health Care Committee hearing Wednesday, Sen. Rick Horner (R-Wilson) said decriminalizing drug testing equipment was “a close line to enabling.”
“Anybody who knows me knows that I’m for empowering people not enabling them,” Davis said in response.
“This is a delicate dance to deal with this issue. The bottom line is you can’t rehabilitate somebody that’s died from an overdose. So if fentanyl strips will save some lives and keep people from overdosing, then that increases our chance for rehabilitation.”
On Thursday, Steve Mange, a representative for the Attorney General’s office, voiced support during another committee hearing for the bill. It passed and is now awaiting action from the Senate Rules committee.
Death by Distribution
Prosecutors say they don’t have strong enough tools to prosecute drug dealers whose products kill their clients. One of the leading voices making this case is Ben David, the district attorney for New Hanover and Pender Counties, which has seen some of the highest rates of opioid use and overdose in the state.
David told the Senate Judiciary committee in April that they need to pass a “death by distribution” law.
According to the proposed legislation, if someone sells 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, which carry sentences ranging from three and a half to 32 years in prison.
David said 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, a district attorney would not have to prove mal intent for a Class B2 felony charge.
Not everyone agrees.
“The Attorney General believes that under existing state law, prosecutors can hold dealers whose product kills a victim accountable and that there are other, higher priorities in our efforts to confront the opioid crisis,” said Laura Brewer, a spokesperson for Attorney General Josh Stein’s office in an email.
Harm reduction advocates are concerned that drug users will be less likely to call 911 when a friend is overdosing due to the added fear of a second-degree murder charge. According to legislative staff, the Good Samaritan Law would not provide immunity to death by distribution charges.
Jennifer Carroll, a medical anthropologist and assistant professor at Elon University, said she and other researchers have requested data from the National Forensic Laboratory Information System and seen trends among states that have pursued death by distribution laws.
These types of laws lead to an increase in fentanyl in the drug market, she said. She and other researchers have seen an increase in the quantity and the variety of fentanyl analogue samples turned into the testing laboratories by police in states with death by distribution laws.
“Adding homicide on to drug distribution is the very definition of increasing the criminalization of an activity,” Carroll said. “If activities are criminalized, we know from decades of public health research that that just drives that activity underground.”
High-level drug dealers can move more of their business underground by putting more fentanyl in their product supply, she explained.
“Because fentanyl itself is a detection avoidance strategy,” she said. “It is so small, it’s not coming in across the border hidden in the trucks of cars or stuffed into baby dolls. You just don’t need much of it. The vast majority of fentanyl coming into the U.S. is coming in through the postal service.
“If these things are criminalized further, dealers will dive deeper into their avoidance strategy. They are going to fall back on a strategy that helps them avoid arrest but that has more deadly effects on our friends and neighbors,” Carroll said.
Death by distribution laws also change the way drug users participate in the drug environment, she said. A lot of people are protected by trusted drug dealers.
“We know that one of the major risks of overdose that people face on a day-to-day basis is unknown supply, unknown product, unknown dealer. One person’s, ‘this isn’t that strong’ might not be someone else’s,” she said.
After conducting interviews with drug users who have overdosed and ended up in the emergency room, Carroll said she often hears the same story: “I couldn’t find my usual guy, so I went to another dealer.”
“It’s always more dangerous to go to your number two guy because you have less relationship, communication and trust,” Carroll said.
Lawmakers want to target the dealer making hundreds of thousands from their product. But Carroll said that “drug kingpins” are becoming an endangered species.
“This bill responds to the drug market as it existed in the ’90s,” she said when there were more high-level drug dealers. Carroll said that many large dealers have been arrested and the market has changed. Many small-level drug operations with a variety of products have taken their place.