SJ Quinney College of Law, University of Utah
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Abstract

Nearing the end of its second decade, the overdose crisis in the United States continues to claim tens of thousands of lives. Despite the rhetorical emphasis on a “public health” approach, criminal law and its enforcement continue to play a central role among policy responses to this crisis. A legacy of the 1980s War on Drugs, statutory provisions that implicate drug distributors in overdose fatalities are on the books in many U.S. jurisdictions and federally. This Article articulates an interdisciplinary critique of these “drug-induced homicide” laws at a time of their increased popularity, expanding scope, and aggressive prosecution. That these policy mechanisms are deployed under the banner of overdose prevention invites a critical public health lens to their reexamination.

After tracing the trajectory of the overdose crisis, this Article examines the role of drug-induced homicide laws as exemplars of U.S. drug policy’s reliance on criminal law to address problematic substance use. An empirical analysis of publicized drug-induced homicide cases documents a rapid and accelerating diffusion of prosecutions in many hard-hit jurisdictions; pronounced racial disparities in enforcement and sentencing; and broad misclassification of friends, partners, family members, and others as “dealers.” In addition to crowding out evidence-based interventions and investments, these policies and prosecutions run at direct cross-purposes to public health efforts that encourage witnesses to summon lifesaving help during overdose events. At a time of crisis, drug-induced homicide laws and prosecutions represent a false prophecy of retribution, deterrence, and incapacitation. These findings support further efforts to demobilize criminal law and criminal justice actors from responding to drug-related harms in the U.S. as elsewhere.

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