Heroin/Fentanyl/Opiate Deaths: Murder or Manslaughter?
Prosecutors are increasing seeking murder or manslaughter charges against dealers of heroin, fentanyl and other opiates when their customers overdose and die. Absent a specific statute authorizing such prosecutions, the viability of bringing murder or manslaughter charges against dealers was brought into question with the April 4, 2018 decision by the Maryland Court of Special Appeals ("CSA") in Thomas v. State.
In Thomas CSA reversed a conviction for involuntary manslaughter. It cautioned that "[w]e do not prejudge future cases nor make any broad pronouncement about he trend [of prosecutors to charge dealers with homicide charges when a buyer dies from overdose]. Rather we hold here only that in prosecutions for involuntary manslaughter, the State must prove beyond a reasonable doubt the existence of a causal nexus between the defendant's act and the victim's death." In Thomas the CSA concluded that the prosecution failed to do so.
Thomas sold heroin in bags marked "Banshee" and sold four such bags to a buyer who subsequently overdosed and died. In the vicinity of his body, police found tramadol pills, an opioid analgesic. The medical examiner opined that the buyer died of alcohol and narcotic (free morphine) intoxication and noted that increased levels of alcohol and free morphine were found in the heart blood of the buyer.
Thomas was convicted under both variants of manslaughter - "unlawful act" manslaughter and "grossly negligent act" manslaughter.
As to the variant of "grossly negligent act" manslaughter, while the CSA acknowledged that the State may have proven that Thomas' conduct in selling heroin was evidence of negligence, it rejected the position of the State that the evidence in this case established that Thomas was grosslynegligent when he sold the heroin to his buyer. The CSA further concluded that Thomas' conduct had to be the legal - "but for" - cause of the buyer's death and the CSA held that that causal chain was broken.
The CSA's analysis included what it said was a concession from the State that "the sale of heroin, without more, is not gross negligence." Further commenting about why a drug dealer would not expect that his or her conduct would constitute a "reckless and wanton disregard for human life" it noted that "...we can infer the opposite - that a drug dealer wishes for his customers to remain alive so that he may sell them more heroin." It stated that "[w]e do not apportion criminal liability for manslaughter merely because of bad luck."
With respect to the theory of "unlawful act" manslaughter, the CSA also rejected the applicability of that theory to the facts in Thomas.
The CSA reminded that the crimes to support "unlawful act" manslaughter must be malem in se, an act that is "naturally evil as adjudged by the sense of civilized community'" and "wrongful in itself." After observing that there is no case that supports the proposition that drug distribution is an act that is malem in se, it concludes that it need not resolve that question in this case as the State failed to prove that Thomas' unlawful act was the legal cause of the victim's death.
The CSA reviewed why the evidence in this case was insufficient to prove causation. The record in Thomas established that (i) Thomas sold four bags of heroin; (ii) later, at another time, in another place, the victim injected himself in amount of heroin he chose; and (iii) the victim used heroin in conjunction with alcohol, which may have intensified the effect of the heroin. Again making clear that the decision in Thomas was fact specific, it observed that "[i]t is not impossible to imagine scenarios in which there will be a sufficient causal connection between the sale of the heroin and the victim's death to satisfy this element..." or that there might be situation where "...the defendant adulterated the heroin (as with fentanyl) and the State can prove that the adulteration was the "but for" cause of the victim's death.
Maryland does not have a specific statute that creates the crime of distribution of a controlled dangerous substance resulting in death. Federal law has such a crime. 18 U.S.C. 841(b)(1)(C) makes it a crime for one to "knowingly, unlawfully and intentionally possess with intent to distribute and distribute a quantity of a mixture or substance containing a detectable amount of heroin, a Schedule I controlled substance, in violation of Title 21, United States Code, Section 841, and death resulted from the use of said substance." Conviction carries a mandatory twenty-year sentence with a maximum sentence of life imprisonment.
The Supreme Court has set the standard for proof of the required causal connection for the federal offense when it said "[w]e hold that, at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim's death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury. Burrage v. United States, 134 S. Ct. 881, 892, 187 L. Ed. 2d 715 (2014).
In describing the causal connection required to be proven in a federal prosecution for a violation of --- the following instruction is typical of the instructions given to the jury:
The final element the government must prove beyond a reasonable doubt is that the drugs distributed by defendant resulted in the death of another.
In order to establish that the drugs distributed by defendant resulted in the death of [victim], the government must prove that [victim] died as a consequence of [victim's] use of the drugs that the defendant distributed on or about the dates alleged in the indictment. This means that the government must prove beyond a reasonable doubt that but for the use of the drugs that the defendant distributed, [victim] would not have died. The government is not required to prove that the drugs distributed by the defendant to [victim]. did not combine with other factors to produce death, so long as the other factors alone would not have done so - if, so to speak, the drugs distributed by the defendant were the straw that broke the camel's back. Thus, if poison is administered to a man debilitated by multiple diseases, the poison is the but-for cause of his death even if those diseases played a part in this demise, so long as, without the incremental effect of the poison, he would have lived. The government is not required to prove that the defendant intended to cause the death of [victim] or that [victim's] death was foreseeable by the defendant or by others.
That the issue of the role of the user in contributing to his or her death was evidenced in what appears to be the basis for the grand jury in Anne Arundel County, Maryland to decline to indict drug dealers for murder or manslaughter when the distribution of their drugs resulted in the death of a user. (See http://www.capitalgazette.com/news/for_the_record/ac-cn-invol-manslaughter-overdose-0313-story.html)
What are some of the practical problems presented in a prosecution and a defense under the federal statute or under the murder/manslaughter theories of prosecution now being pursued by some prosecutors.
1. Is everyone in the distribution chain subject to prosecution for murder or manslaughter. It is generally more "convenient" and the evidence more readily available to identify the dealer lowest and closest in the chain to the buyer. That also means that the lower one's role in the distribution chain, the more likely one is to be held accountable for a subsequent death, even though that dealer may be nothing more than a user/dealer himself/herself. The higher up the distribution chain, the less like that the causal connection can be proven, even thought culpability might be greater for those higher up in the distribution chain - those likely making more money from the drug dealer activities.
2. What are the potential intervening events that might prevent prosecution under the Thomas case? Was the drug combined by the user with other drugs to increase is effect?
Drug users are often poly drug abusers. A combination of various drugs and/or alcohol may make it difficult to show that the use of heroin is the "but for" cause of death.
Did the user add other drugs to increase the effect of the drug? Did the user administer an unusually large dose of the drugs, an amount that the dealer could not reasonably anticipate, resulting in death? If so, should the dealer be held strictly liable for the user's death even though the conduct of the user was "unreasonable" in the manner and the amount of the drugs that were administered?
Is it possible that the user had acquired the type of drug that caused death from multiple sources at different times? If so, how does the prosecution prove that the drug that caused death was obtained from the defendant rather than from other possible drug dealers.
The epidemic of heroin and opiate drug overdoses, many resulting in death, has resulted in an appropriate increase in the efforts of law enforcement and prosecutors to stem the tide of death caused by such drug dealing. However, the need to apportion responsibility to the most culpable party and not just the easiest or most convenient individual is not likely to have the desired deterrent effect. A user/dealer who is an addict and sells to another to support their own addiction is not likely to deterred by the possibility of prosecution. Addiction controls judgment in such circumstances. Focusing responsibility on those higher up in the distribution chain, while more difficult, is more appropriate. It is those individuals who benefit from the financial rewards of their distribution and it is those individuals who should suffer the punishment sought by prosecutors who wish to bring murder and manslaughter charges for fatal drug overdoses.