Drug Induced Homicide
Most overdoses are not murders and should not be charged as such.
In Riverside, California, distribution of fentanyl resulting in death is now being charged as murder. The first such case to go to trial resulted in the conviction of Vicente Romero. With future prosecutions to follow it is worth scrutinizing this case given that it is likely to serve as a model for other cases.
Romero was actually not the first person to be convicted of murder in California for distribution of fentanyl resulting in death. In 2000, Kristin Rossum was found guilty by a jury of having murdered her husband by poisoning him with fentanyl. Rossum was charged with murder because it was suspected that she intentionally caused the death of her husband; she allegedly distributed fentanyl not as a drug seller but only in a literal sense of having caused it to enter another person’s body by her own deliberate actions. Whereas most overdoses are accidental and unintentional, Rossum’s case was a conventional murder case that could just as well have had secobarbital or arsenic as the murder weapon rather than fentanyl. In contrast, Romero was accused of having shared a counterfeit “M30” pill with Kelsey King which resulted in both of them falling unconscious and the subsequent death of King which was neither intended nor expected by Romero. The drastically different circumstances of Romero’s case compared to that of Rossum call into question the appropriateness of charging him with murder as if he had intentionally poisoned King.
Charging drug distribution which results in an overdose death as homicide is not an inherently incorrect prosecutorial practice. As Rossum’s case demonstrates, murder is murder irrespective of the means by which the murder is carried out. If a person’s actions result in the death of another person and the elements of criminal homicide are met then it is perfectly appropriate for homicide charges to be filed. The issue with overdose cases like Romero’s is that usually they do not meet the elements of criminal homicide. If the pill that caused the death of Kelsey King was replaced by another substance, alcohol for instance, would it be correct for Romero to be charged with murder? From my understanding of the facts of the case, it would not.
Given that the definitions of the words “murder” and “homicide” now seem to be in dispute, I think it would be insightful to explore the fundamental question of what the purpose is of criminal punishment before considering the currently established legal definitions of these words and their applicability to Romero and similarly situated individuals. The United States Code describes the purposes of sentencing deemed appropriate by federal law under 18 U.S.C. § 3553(a), but I personally believe there to be three primary factors worth discussing: deterrence, containment, and compensation.
A rational person acts by considering the potential consequences of his possible actions and then performing the action which he believes will produce the best outcome. The purpose of punishment, as the word is used in psychology, is to impose additional costs on actions that would harm us in order to disincentivize the person being punished from performing them. A prison sentence is one method that might be used to deter people from committing crimes but it is far from being the only method; any consequence that people would prefer to avoid, from fines to revocation of a professional license to chastisement to guilt, will suffice if a potential criminal considers it to be unfavorable enough to outweigh the benefits which he would get from commission of the crime. It is important, however, that punishments are not so severe as to cause more harm to the person being punished than the crime itself would cause, lest the cure end up being worse than the disease. It is also important that legal punishments are imposed only with respect to actions which a person has control over, otherwise a deterrent effect is not possible. It is for these two reasons that different levels of homicides exist and all of them require at minimum that the defendant’s actions were the proximate cause of death and that either deliberate intent or recklessness and foreseeability was present to some degree. While the untimely death of a person is tragic, it serves no rational purpose to punish someone for a death which resulted from actions which the law would not, without the benefit of hindsight, seek to or could not deter.
Containment is an effect of imprisonment which distinguishes it from other forms of punishment such as fines. The rationale behind imprisonment is that a person who commits a crime once is more likely than the average person to commit the same crime again and by forcefully separating him from the general public he will be prevented from reoffending. Imprisonment, even for a short period of time, is not only unpleasant but also extremely disruptive to a person’s life. Consequently, prison sentences should be reserved for crimes which risk comparable harm to the victims. Most people would agree that death is a serious enough harm that it is justifiable to restrict one person’s freedom in order to prevent the death of others. However, this does not imply that life sentences (or death sentences) are appropriate punishments for all instances of homicide. As serious a crime as murder is, twenty years, or even ten years, is a long time, long enough for a person to transform into someone unrecognizable, and a person who has genuinely found redemption (a story that everyone has heard at one time or another) is no longer a threat to the public. Moreover, a first-time offender who has never been to prison before will often be less likely to reoffend than the average person after concretely experiencing the consequences of his actions which most people have only conceived of abstractly, especially if his crime was unintentional and resulted from carelessness rather than malicious intent.
Lastly, it cannot be ignored that optics and the innate desire of crime victims as well as members of the public who perceive the crime to have been directed at a group to which they belong to see the person who has caused them to suffer in kind. The satisfaction of seeing wrongdoers punished is probably a biological instinct which functions as a deterrent against behavior which we perceive as threatening to us or to our tribe, but whatever the origin its existence cannot be denied, nor can the role which it plays in criminal punishment. Typically, completed crimes are punished more severely than attempted crimes which does not follow from the principles of deterrence and containment (a person who has committed attempted murder has performed the same actions as someone who has committed murder, and with the same intentions and only by chance or from incompetence did the outcomes differ). A possible justification for punishing outcomes in addition to actions is that a person who was harmed is owed compensation and if it is not possible to return what was taken then as a compromising alternative he can be compensated with money or with the satisfaction of seeing the perpetrator punished. This principle of compensation provides the rationale behind not just criminal punishment but also civil damages. Sometimes, however, the placation of the public desire to see “justice done” produces punishments out of proportion to the crime. The association between a person being “off the streets” or “behind bars” and “justice being done” often entices legislators to prescribe harsh prison sentences even when the purposes of criminal punishment would be better served by other methods.
As mentioned, all homicide charges require at least proximate causation and recklessness, but murder also requires malicious intent. Each of the three aforementioned purposes of sentencing take part in explaining why murder is punished more severely than manslaughter, and why recklessness is sometimes enough to prove malice. With respect to deterrence, a person who actually expects to benefit from someone else’s death will not be deterred without severe costs. In the case of manslaughter, it is actions that needlessly increase the probability of death occurring above what is generally considered to be normal and acceptable which are being deterred and, in addition to the fact that the benefit of deterrence and harm done are both less when the probability of death occurring is less, the knowledge of having caused someone’s death by itself will act as a punishment to most people who did not intend for death to occur. As for confinement, it is plausible that a person careless enough to commit manslaughter more than once could be more dangerous to the average person than someone who intentionally murdered someone else for an understandable (though not justifiable) reason, but for a first-time offender it is more plausible that a person who has demonstrated a willingness to commit the ultimate taboo would not be unwilling to do so again. Moreover, as already mentioned, recklessness most of the time does not result in death and so the harm prevented by imprisoning someone who has demonstrated a propensity to commit manslaughter will be less than that when the propensity is to commit murder.
The outcome is the same for all types of homicide and so it might seem that the compensation principle is inapplicable. The perceived harm to the group, however, is greater in the case of murder and so the public expect the punishment to be greater. This is because murder, as mentioned, is the ultimate taboo and a person who commits murder has effectively expelled himself from the group in the eyes of the public. A person who commits manslaughter, on the other hand, is deserving of some sympathy because most people have acted recklessly at some time in their lives and it is due only to chance that death resulted in this case rather than in some other case. His actions, of course, are not excusable but they are more understandable and forgivable than those of someone who commits murder, and as someone who is still perceived to be a member of the group he is entitled to more leniency than an outsider.
Now let us return to the case of Vicente Romero. It is not disputed that he did not intend to cause the death of Kelsey King, but recklessness can rise to the level of malice if it is present to such an extreme degree as to reflect a disregard for human life comparable to someone who deliberately commits homicide. I was not present at Romero’s trial but I suspect that the government tried to compare him to someone who knowingly sells a defective product which has, say, a high chance of exploding and then fails to inform his customers not because he wants them to die but because he simply doesn’t care. This argument fails for most overdoses firstly because fentanyl is not inherently deadly (federally it is a Schedule II controlled substance which means that it has accepted medicinal uses) and secondly because most street-level distributors demonstrate that they do not believe their product to be particularly deadly when they use it themselves. Not only did Romero take half of the pill that he shared with King himself but he lost consciousness as well, and when he regained consciousness he called 911. I don’t know why the jury decided to convict him of murder but to me it is apparent that he did not exhibit a callous disregard for the life of Kelsey King. Given that he did not manufacture the pill himself or seem to have any reason to believe that it was especially potent and half of an oxycodone pill (even a counterfeit one) typically will not kill a person, I don’t believe that Romero exhibited enough recklessness to merit even an involuntary manslaughter conviction. Two opioid users shared a pill which they had no reason to believe would kill them, both of them overdosed, one recovered. This was a tragic accident, not a homicide.
According to the website https://druginducedhomicide.org, not every death because of a drug overdose is a criminal matter. Some are suicides, and some are simply accidents.” It is encouraging to read such a level-headed statement on a website advocating for increased incarceration. However, with such a misunderstood, emotionally sensitive, and highly politicized issue there is a significant risk that juries will convict people (like Vicente Romero) of murder who are not guilty beyond a reasonable doubt (or at all). Prosecutors bear the responsibility of not filing charges that they know a person is not guilty of. Moreover, while Vicente Romero was lucky enough to find himself being tried in California state court where even a murder conviction carries only 15 to life, many people (such as myself) are charged federally for distribution resulting in death. Not only is the sentence range more severe in the feds (20 to life with no possibility of parole) but also the elements of the crime are so broad that they encompass situations, such as suicides and accidents, which would not meet the elements of even involuntary manslaughter. In order to sustain a federal conviction for distribution resulting in death (or serious bodily injury) under 21 U.S.C. § 841 the only requirement is that the defendant knowingly distributed a controlled substance to a person who overdosed as a result of consuming it. There is no requirement that death was foreseeable, nor that any recklessness was involved, nor that the distribution was even the proximate cause of death. The person who overdosed need not even have died. (As of writing this I am living three doors down from someone who is facing the same amount of time for having distributed fentanyl to two girls who overdosed but survived after being revived with naloxone.) It is commendable of Drug Induced Homicide to acknowledge that not all overdoses are criminal matters but the current reality is that under federal law, and even under California homicide law apparently, all overdoses can be treated as criminal matters and will be whenever there is political incentive to do so.
I am not against overdoses being charged as homicides when they actually resemble homicides, as in the case of Kristin Rossum. Most overdoses, however, are not homicides, and putting someone in prison for 20 years for a death which he neither foresaw nor intended serves only to compound an already tragic event by destroying a second life. I overdosed on fentanyl the day before I was arrested and I am thankful to have been revived both because I enjoy being alive (though not so much lately) and because otherwise someone else might be in prison now because I made a careless decision. Charge murder as murder, charge manslaughter as manslaughter, but resist the temptation to turn all tragedies into criminal prosecutions. I understand the powerlessness that is felt when something terrible happens and the urge to make sense of it and to find someone to blame and some way to take back control. But over-prosecution is what got us into this mess (it is not a coincidence that the fentanyl surge coincided with the increased prosecution of “pill mills”) and it is unlikely that more over-prosecution is going to get us out.
