Drug Induced Homicide In
In an effort to combat the rising tide of fatalities, many states have implemented Drug Induced Homicide laws to hold drug dealers accountable for the deaths.
Fortunately, North Carolina is one of those states. The following is an excerpt from North Carolina State Law:
(a) Application to Felonies Only. – This Part applies to sentences imposed for felony convictions.
(b) Procedure Generally; Requirements of Judgment; Kinds of Sentences. – Before imposing a sentence, the court shall determine the prior record level for the offender pursuant to G.S. 15A-1340.14. The sentence shall contain a sentence disposition specified for the class of offense and prior record level, and its minimum term of imprisonment shall be within the range specified for the class of offense and prior record level, unless applicable statutes require or authorize another minimum sentence of imprisonment. The kinds of sentence dispositions are active punishment, intermediate punishment, and community punishment.
(c) Minimum and Maximum Term. – The judgment of the court shall contain a minimum term of imprisonment that is consistent with the class of offense for which the sentence is being imposed and with the prior record level for the offender. The maximum term of imprisonment applicable to each minimum term of imprisonment is, unless otherwise provided, as specified in G.S. 15A-1340.17. The maximum term shall be specified in the judgment of the court.
(d) Service of Minimum Required; Earned Time Authorization. – An offender sentenced to an active punishment shall serve the minimum term imposed, except as provided in G.S. 15A-1340.18. The maximum term may be reduced to, but not below, the minimum term by earned time credits awarded to an offender by the Division of Adult Correction and Juvenile Justice of the Department of Public Safety or the custodian of the local confinement facility, pursuant to rules adopted in accordance with law.
(e) Deviation from Sentence Ranges for Aggravation and Mitigation; No Sentence Dispositional Deviation Allowed. – The court may deviate from the presumptive range of minimum sentences of imprisonment specified for a class of offense and prior record level if it finds, pursuant to G.S. 15A 1340.16, that aggravating or mitigating circumstances support such a deviation. The amount of the deviation is in the court’s discretion, subject to the limits specified in the class of offense and prior record level for mitigated and aggravated punishment. Deviations for aggravated or mitigated punishment are allowed only in the ranges of minimum and maximum sentences of imprisonment, and not in the sentence dispositions specified for the class of offense and prior record level, unless a statute specifically authorizes a sentence dispositional deviation.
(f) Suspension of Sentence. – Unless otherwise provided, the court shall not suspend the sentence of imprisonment if the class of offense and prior record level do not permit community or intermediate punishment as a sentence disposition. The court shall suspend the sentence of imprisonment if the class of offense and prior record level require community or intermediate punishment as a sentence disposition. The court may suspend the sentence of imprisonment if the class of offense and prior record level authorize, but do not require, active punishment as a sentence disposition.
(g) Dispositional Deviation for Extraordinary Mitigation. – Except as provided in subsection (h) of this section, the court may impose an intermediate punishment for a class of offense and prior record level that requires the imposition of an active punishment if it finds in writing all of the following:
(1) That extraordinary mitigating factors of a kind significantly greater than in the normal case are present.
(2) Those factors substantially outweigh any factors in aggravation.
(3) It would be a manifest injustice to impose an active punishment in the case.
The court shall consider evidence of extraordinary mitigating factors, but the decision to find any such factors, or to impose an intermediate punishment is in the discretion of the court. The extraordinary mitigating factors which the court finds shall be specified in its judgment.
(h) Exceptions When Extraordinary Mitigation Shall Not Be Used. – The court shall not impose an intermediate sanction pursuant to subsection (g) of this section if:
(1) The offense is a Class A or Class B1 felony;
(2) The offense is a drug trafficking offense under G.S. 90-95(h) or a drug trafficking conspiracy offense under G.S. 90-95(i); or
(3) The defendant has five or more points as determined by G.S. 15A-1340.14.
(a) A murder which shall be perpetrated by means of a nuclear, biological, or chemical weapon of mass destruction as defined in G.S. 14-288.21, poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree, a Class A felony, and any person who commits such murder shall be punished with death or imprisonment in the State’s prison for life without parole as the court shall determine pursuant to G.S. 15A-2000, except that any such person who was under 18 years of age at the time of the murder shall be punished in accordance with Part 2A of Article 81B of Chapter 15A of the General Statutes.
(a1) If a murder was perpetrated with malice as described in subdivision (1) of subsection (b) of this section, and committed against a spouse, former spouse, a person with whom the defendant lives or has lived as if married, a person with whom the defendant is or has been in a dating relationship as defined in G.S. 50B-1(b)(6), or a person with whom the defendant shares a child in common, there shall be a rebuttable presumption that the murder is a “willful, deliberate, and premeditated killing” under subsection (a) of this section and shall be deemed to be murder in the first degree, a Class A felony, if the perpetrator has previously been convicted of one of the following offenses involving the same victim:
(1) An act of domestic violence as defined in G.S. 50B-1(a).
(2) A violation of a domestic violence protective order under G.S. 50B-4.1(a), (f), (g), or (g1) or G.S. 14-269.8 when the same victim is the subject of the domestic violence protective order.
(3) Communicating a threat under G.S. 14-277.1.
(4) Stalking as defined in G.S. 14-277.3A.
(5) Cyberstalking as defined in G.S. 14-196.3.
(6) Domestic criminal trespass as defined in G.S. 14-134.3.
(b) A murder other than described in subsection (a) or (a1) of this section or in G.S. 14-23.2 shall be deemed second degree murder. Any person who commits second degree murder shall be punished as a Class B1 felon, except that a person who commits second degree murder shall be punished as a Class B2 felon in either of the following circumstances:
(1) The malice necessary to prove second degree murder is based on an inherently dangerous act or omission, done in such a reckless and wanton manner as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief.
(2) The murder is one that was proximately caused by the unlawful distribution of any opium, opiate, or opioid; any synthetic or natural salt, compound, derivative, or preparation of opium, or opiate, or opioid; cocaine or other substance described in G.S. 90-90(1)d.; methamphetamine; or a depressant described in G.S. 90-92(a)(1), and the ingestion of such substance caused the death of the user.
(c) For the purposes of this section, it shall constitute murder where a child is born alive but dies as a result of injuries inflicted prior to the child being born alive. The degree of murder shall be determined as described in subsections (a) and (b) of this section.
(a) Generally, Burden of Proof. – The court shall consider evidence of aggravating or mitigating factors present in the offense that make an aggravated or mitigated sentence appropriate, but the decision to depart from the presumptive range is in the discretion of the court. The State bears the burden of proving beyond a reasonable doubt that an aggravating factor exists, and the offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists.
(a1) Jury to Determine Aggravating Factors; Jury Procedure if Trial Bifurcated. – The defendant may admit to the existence of an aggravating factor, and the factor so admitted shall be treated as though it were found by a jury pursuant to the procedures in this subsection. Admissions of the existence of an aggravating factor must be consistent with the provisions of G.S. 15A-1022.1. If the defendant does not so admit, only a jury may determine if an aggravating factor is present in an offense. The jury impaneled for the trial of the felony may, in the same trial, also determine if one or more aggravating factors is present, unless the court determines that the interests of justice require that a separate sentencing proceeding be used to make that determination. If the court determines that a separate proceeding is required, the proceeding shall be conducted by the trial judge before the trial jury as soon as practicable after the guilty verdict is returned. If prior to the time that the trial jury begins its deliberations on the issue of whether one or more aggravating factors exist, any juror dies, becomes incapacitated or disqualified, or is discharged for any reason, an alternate juror shall become a part of the jury and serve in all respects as those selected on the regular trial panel. An alternate juror shall become a part of the jury in the order in which the juror was selected. If the trial jury is unable to reconvene for a hearing on the issue of whether one or more aggravating factors exist after having determined the guilt of the accused, the trial judge shall impanel a new jury to determine the issue. A jury selected to determine whether one or more aggravating factors exist shall be selected in the same manner as juries are selected for the trial of criminal cases.
(a2) Procedure if Defendant Admits Aggravating Factor Only. – If the defendant admits that an aggravating factor exists, but pleads not guilty to the underlying felony, a jury shall be impaneled to dispose of the felony charge. In that case, evidence that relates solely to the establishment of an aggravating factor shall not be admitted in the felony trial.
(a3) Procedure if Defendant Pleads Guilty to the Felony Only. – If the defendant pleads guilty to the felony, but contests the existence of one or more aggravating factors, a jury shall be impaneled to determine if the aggravating factor or factors exist.
(a4) Pleading of Aggravating Factors. – Aggravating factors set forth in subsection (d) of this section need not be included in an indictment or other charging instrument. Any aggravating factor alleged under subdivision (d)(20) of this section shall be included in an indictment or other charging instrument, as specified in G.S. 15A-924.
(a5) Procedure to Determine Prior Record Level Points Not Involving Prior Convictions. – If the State seeks to establish the existence of a prior record level point under G.S. 15A-1340.14(b)(7), the jury shall determine whether the point should be assessed using the procedures specified in subsections (a1) through (a3) of this section. The State need not allege in an indictment or other pleading that it intends to establish the point.
(a6) Notice of Intent to Use Aggravating Factors or Prior Record Level Points. – The State must provide a defendant with written notice of its intent to prove the existence of one or more aggravating factors under subsection (d) of this section or a prior record level point under G.S. 15A-1340.14(b)(7) at least 30 days before trial or the entry of a guilty or no contest plea. A defendant may waive the right to receive such notice. The notice shall list all the aggravating factors the State seeks to establish.
(a7) Procedure When Jury Trial Waived. – If a defendant waives the right to a jury trial under G.S. 15A 1201, the trial judge shall make all findings that are conferred upon the jury under the provisions of this section.
(b) When Aggravated or Mitigated Sentence Allowed. – If the jury, or with respect to an aggravating factor under G.S. 15A-1340.16(d)(12a) or (18a), the court, finds that aggravating factors exist or the court finds that mitigating factors exist, the court may depart from the presumptive range of sentences specified in G.S. 15A-1340.17(c)(2). If aggravating factors are present and the court determines they are sufficient to outweigh any mitigating factors that are present, it may impose a sentence that is permitted by the aggravated range described in G.S. 15A-1340.17(c)(4). If the court finds that mitigating factors are present and are sufficient to outweigh any aggravating factors that are present, it may impose a sentence that is permitted by the mitigated range described in G.S. 15A-1340.17(c)(3).
(c) Written Findings; When Required. – The court shall make findings of the aggravating and mitigating factors present in the offense only if, in its discretion, it departs from the presumptive range of sentences specified in G.S. 15A-1340.17(c)(2). If the jury finds factors in aggravation, the court shall ensure that those findings are entered in the court’s determination of sentencing factors form or any comparable document used to record the findings of sentencing factors. Findings shall be in writing. The requirement to make findings in order to depart from the presumptive range applies regardless of whether the sentence of imprisonment is activated or suspended.
(d) Aggravating Factors. – The following are aggravating factors:
(1) The defendant induced others to participate in the commission of the offense or occupied a position of leadership or dominance of other participants.
(2) The defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy.
(2a) The offense was committed for the benefit of, or at the direction of, any criminal gang as defined by G.S. 14–50.16A(1),, with the specific intent to promote, further, or assist in any criminal conduct by gang members, and the defendant was not charged with committing a conspiracy.
(3) The offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
(4) The defendant was hired or paid to commit the offense.
(5) The offense was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.
(6) The offense was committed against or proximately caused serious injury to a present or former law enforcement officer, employee of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, jailer, fireman, emergency medical technician, ambulance attendant, social worker, justice or judge, clerk or assistant or deputy clerk of court, magistrate, prosecutor, juror, or witness against the defendant, while engaged in the performance of that person’s official duties or because of the exercise of that person’s official duties.
(6a) The offense was committed against or proximately caused serious harm as defined in G.S. 14-163.1 or death to a law enforcement agency animal, an assistance animal, or a search and rescue animal as defined in G.S. 14-163.1, while engaged in the performance of the animal’s official duties.
(7) The offense was especially heinous, atrocious, or cruel.
(8) The defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person.
(9) The defendant held public elected or appointed office or public employment at the time of the offense and the offense directly related to the conduct of the office or employment.
(9a) The defendant is a firefighter or rescue squad worker, and the offense is directly related to service as a firefighter or rescue squad worker.
(10) The defendant was armed with or used a deadly weapon at the time of the crime.
(11) The victim was very young, or very old, or mentally or physically infirm, or handicapped.
(12) The defendant committed the offense while on pretrial release on another charge.
(12a) The defendant has, during the 10-year period prior to the commission of the offense for which the defendant is being sentenced, been found by a court of this State to be in willful violation of the conditions of probation imposed pursuant to a suspended sentence or been found by the Post-Release Supervision and Parole Commission to be in willful violation of a condition of parole or post-release supervision imposed pursuant to release from incarceration.
(13) The defendant involved a person under the age of 16 in the commission of the crime.
(13a) The defendant committed an offense and knew or reasonably should have known that a person under the age of 18 who was not involved in the commission of the offense was in a position to see or hear the offense.
(14) The offense involved an attempted or actual taking of property of great monetary value or damage causing great monetary loss, or the offense involved an unusually large quantity of contraband.
(15) The defendant took advantage of a position of trust or confidence, including a domestic relationship, to commit the offense.
(16) The offense involved the sale or delivery of a controlled substance to a minor.
(16a) The offense is the manufacture of methamphetamine and was committed where a person under the age of 18 lives, was present, or was otherwise endangered by exposure to the drug, its ingredients, its by products, or its waste.
(16b) The offense is the manufacture of methamphetamine and was committed in a dwelling that is one of four or more contiguous dwellings.
(17) The offense for which the defendant stands convicted was committed against a victim because of the victim’s race, color, religion, nationality, or country of origin.
(18) The defendant does not support the defendant’s family.
(18a) The defendant has previously been adjudicated delinquent for an offense that would be a Class A, B1, B2, C, D, or E felony if committed by an adult.
(19) The serious injury inflicted upon the victim is permanent and debilitating.
(19a) The offense is a violation of G.S. 14-43.11 (human trafficking), G.S. 14-43.12 (involuntary servitude), or G.S. 14-43.13 (sexual servitude) and involved multiple victims.
(19b) The offense is a violation of G.S. 14-43.11 (human trafficking), G.S. 14-43.12 (involuntary servitude), or G.S. 14-43.13 (sexual servitude), and the victim suffered serious injury as a result of the offense.
(20) Any other aggravating factor reasonably related to the purposes of sentencing.
Evidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation, and the same item of evidence shall not be used to prove more than one factor in aggravation. Evidence necessary to establish that an enhanced sentence is required under G.S. 15A-1340.16A may not be used to prove any factor in aggravation.
The judge shall not consider as an aggravating factor the fact that the defendant exercised the right to a jury trial.
Notwithstanding the provisions of subsection (a1) of this section, the determination that an aggravating factor under G.S. 15A-1340.16(d)(18a) is present in a case shall be made by the court, and not by the jury. That determination shall be made in the sentencing hearing.
(e) Mitigating Factors. – The following are mitigating factors:
(1) The defendant committed the offense under duress, coercion, threat, or compulsion that was insufficient to constitute a defense but significantly reduced the defendant’s culpability.
(2) The defendant was a passive participant or played a minor role in the commission of the offense.
(3) The defendant was suffering from a mental or physical condition that was insufficient to constitute a defense but significantly reduced the defendant’s culpability for the offense.
(4) The defendant’s age, immaturity, or limited mental capacity at the time of commission of the offense significantly reduced the defendant’s culpability for the offense.
(5) The defendant has made substantial or full restitution to the victim.
(6) The victim was more than 16 years of age and was a voluntary participant in the defendant’s conduct or consented to it.
(7) The defendant aided in the apprehension of another felon or testified truthfully on behalf of the prosecution in another prosecution of a felony.
(8) The defendant acted under strong provocation, or the relationship between the defendant and the victim was otherwise extenuating.
(9) The defendant could not reasonably foresee that the defendant’s conduct would cause or threaten serious bodily harm or fear, or the defendant exercised caution to avoid such consequences.
(10) The defendant reasonably believed that the defendant’s conduct was legal.
(11) Prior to arrest or at an early stage of the criminal process, the defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer.
(12) The defendant has been a person of good character or has had a good reputation in the community in which the defendant lives.
(13) The defendant is a minor and has reliable supervision available.
(14) The defendant has been honorably discharged from the Armed Forces of the United States.
(15) The defendant has accepted responsibility for the defendant’s criminal conduct.
(16) The defendant has entered and is currently involved in or has successfully completed a drug treatment program or an alcohol treatment program subsequent to arrest and prior to trial.
(17) The defendant supports the defendant’s family.
(18) The defendant has a support system in the community.
(19) The defendant has a positive employment history or is gainfully employed.
(20) The defendant has a good treatment prognosis, and a workable treatment plan is available.
(21) Any other mitigating factor reasonably related to the purposes of sentences.
(f) Notice to State Treasurer of Finding. – If the court determines that an aggravating factor under subdivision (9) of subsection (d) of this section has been proven, the court shall notify the State Treasurer of the fact of the conviction as well as the finding of the aggravating factor. The indictment charging the defendant with the underlying offense must include notice that the State seeks to prove the defendant acted in accordance with subdivision (9) of subsection (d) of this section and that the State will seek to prove that as an aggravating factor.
(a) Offense Classification; Default Classifications. – The offense classification is as specified in the offense for which the sentence is being imposed. If the offense is a felony for which there is no classification, it is a Class I felony.
(b) Fines. – Any judgment that includes a sentence of imprisonment may also include a fine. If a community punishment is authorized, the judgment may consist of a fine only. Additionally, when the defendant is other than an individual, the judgment may consist of a fine only. Unless otherwise provided, the amount of the fine is in the discretion of the court.
(c) Punishments for Each Class of Offense and Prior Record Level; Punishment Chart Described. – The authorized punishment for each class of offense and prior record level is as specified in the chart below. Prior record levels are indicated by the Roman numerals placed horizontally on the top of the chart. Classes of offense are indicated by the letters placed vertically on the left side of the chart. Each cell on the chart contains the following components:
(1) A sentence disposition or dispositions: “C” indicates that a community punishment is authorized;
“I” indicates that an intermediate punishment is authorized; “A” indicates that an active punishment is authorized; and “Life Imprisonment Without Parole” indicates that the defendant shall be imprisoned for the remainder of the prisoner’s natural life.
(2) A presumptive range of minimum durations, if the sentence of imprisonment is neither aggravated or mitigated; any minimum term of imprisonment in that range is permitted unless the court finds pursuant to G.S. 15A-1340.16 that an aggravated or mitigated sentence is appropriate. The presumptive range is the middle of the three ranges in the cell.
(3) A mitigated range of minimum durations if the court finds pursuant to G.S. 15A-1340.16 that a mitigated sentence of imprisonment is justified; in such a case, any minimum term of imprisonment in the mitigated range is permitted. The mitigated range is the lower of the three ranges in the cell.
(4) An aggravated range of minimum durations if the court finds pursuant to G.S. 15A-1340.16 that an aggravated sentence of imprisonment is justified; in such a case, any minimum term of imprisonment in the aggravated range is permitted. The aggravated range is the higher of the three ranges in the cell.
(d) Maximum Sentences Specified for Class F through Class I Felonies. – Unless provided otherwise in a statute establishing a punishment for a specific crime, for each minimum term of imprisonment in the chart in subsection (c) of this section, expressed in months, the corresponding maximum term of imprisonment, also expressed in months, is as specified in the table below for Class F through Class I felonies. The first figure in each cell in the table is the minimum term and the second is the maximum term.
(e) Maximum Sentences Specified for Class B1 through Class E Felonies for Minimum Terms up to 339 Months. Unless provided otherwise in a statute establishing a punishment for a specific crime, for each minimum term of imprisonment in the chart in subsection (c) of this section, expressed in months, the corresponding maximum term of imprisonment, also expressed in months, is as specified in the table below for Class B1 through Class E felonies. The first figure in each cell of the table is the minimum term and the second is the maximum term.
(e1) Maximum Sentences Specified for Class B1 through Class E Felonies for Minimum Terms of 340 Months or More. – Unless provided otherwise in a statute establishing a punishment for a specific crime, when the minimum sentence is 340 months or more, the corresponding maximum term of imprisonment shall be equal to the sum of the minimum term of imprisonment and twenty percent (20%) of the minimum term of imprisonment, rounded to the next highest month, plus 12 additional months.
(f) Maximum Sentences Specified for Class B1 Through Class E Sex Offenses. – Unless provided otherwise in a statute establishing a punishment for a specific crime, for offenders sentenced for a Class B1 through E felony that is a reportable conviction subject to the registration requirement of Article 27A of Chapter 14 of the General Statutes, the maximum term of imprisonment shall be equal to the sum of the minimum term of imprisonment and twenty percent (20%) of the minimum term of imprisonment, rounded to the next highest month, plus 60 additional months.
What You Can Do
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Our mission is to:
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Understanding Drug Induced Homicide Law
From the Attorney General’s point of view.
Read the Brief
For many years, most prosecutors charged only those drug-related deaths involving rival drug gang fights as being homicides. But the focus has now broadened to also examine overdose deaths as prosecutable homicides against those who sold and distributed the drugs causing the overdose. It is important to emphasize that not every death because of a drug overdose is a criminal matter. Some are suicides, and some are simply accidents. But some deaths, legally and ethically, may rise to the level of criminal homicide. These homicides may not be easily discovered, investigated, prosecuted or proven, but they still deserve attention. For that to happen, a paradigm shift in thinking by law enforcement officers and prosecutors is required, away from attitudes focusing on accident to thinking and treating overdoses as homicides.
In order to make that shift, it is important to understand and appreciate the variety of approaches available within existing statutory schemes and case law. While a handful of states have no statutory or case law basis for treating overdose deaths as homicides, the majority already had or have adopted a wide variety of legal theories useful in addressing these cases. Two basic options highlight the differing approaches: use of the existing statutory structure, often referred to as the felony murder rule, and creation of a specific offense of death resulting from the distribution of controlled substances.
What might be characterized as the traditional approach to the matter may be found in those states that have included overdose deaths within their murder statute. Arizona and Oklahoma, among others, list drug offenses as crimes which, when a death occurs during the commission of that offense, is treated as murder. A significant number of states enumerate drug offenses within their murder statutes and, while the laws have been on the books for a considerable time, they are only now being considered for use in overdose cases.
A felony murder statute allows the prosecutor to charge an offense which requires no specific mental state other than that required for the enumerated offense; the law may specifically state that no proof of intent to cause the death is required. In general, proof of the underlying offense and the cause of death will be sufficient to obtain a conviction under this approach. Additional elements, such as proof that the underlying felony must be inherently dangerous to human life, or proof of recklessness in both causation and appreciation or awareness of the risk, may be required in some states.
Where these various felony murder states differ is in their classifications for punishment for the offense. The possibilities range from first degree or capital murder, second degree murder, manslaughter, involuntary manslaughter, and even negligent homicide. They may also limit the application of the statute. For example, Florida’s statute applies only to distribution by an adult, while Colorado’s statute applies only to distribution to a minor on school grounds.
Those states punishing drug dealing resulting in death as a specific offense have adopted a variety of approaches as well. These “drug-induced homicide” statutes are crafted as stand-alone felonies rather than being included in existing murder or other statutes. Again, as with the felony murder alternatives, the treatment of punishment and application may vary. New Hampshire and New Jersey both define the offense as being one of strict liability. Both statutes, mirroring one another, apply to methamphetamine, lysergic acid, diethylamide phencyclidine (PCP), or any other Schedule I and II controlled substances and provides that any person who manufactures, sells, or dispenses the substances in violation of law is strictly liable for a death resulting from their use.
The varieties of these statutes are numerous and diverse. Pennsylvania’s statute applies to any controlled substance and provides that the delivery must be done intentionally. Delaware has imposed a minimum weight threshold to its statute, requiring, for example, that there be delivery of at least one gram or more of heroin. Michigan’s law covers Schedule I and II controlled substances, but specifically excludes marijuana. A recent amendment to the Illinois law allows for prosecution for a death within the state caused by a drug that was delivered outside the state in violation of the law of that other jurisdiction.
For those states, such as California, which have no felony murder or drug-induced homicide statute that would apply to overdose situations, prosecutors are left to cobble together a criminal liability theory using a second degree murder or manslaughter charge with a negligence or reckless element. California might make use of its involuntary manslaughter statute. New York might make use of its statutes regarding criminally negligent homicide (criminal negligence standard) or manslaughter in the second degree (reckless standard). A bill to amend Ohio’s involuntary manslaughter statute to include causing or contributing to the death of a person as a result of the sale, delivery, or administration of a controlled substance and making it a strict liability offense was introduced but has languished since 2016.
Regardless of the criminal statute scheme, one element is the lynchpin to the crime: causation. Whether a felony murder, strict liability, or reckless or negligent theory, causation raises perhaps the most difficult issues in proving these cases.
Overdose cases have a number of matters that may cause the prosecutor some concern, from lack of sympathy for the victim to proving who provided the drugs. On top of these, many of the victims in overdose death cases are polysubstance abusers, injecting or ingesting a wide variety of both legal and illegal substances. Further, because of their drug addictions, their overall general health may be compromised, making them susceptible to diseases and conditions which might impact the situation leading to their deaths. It becomes imperative for the prosecutor to understand what is needed to prove regarding causation.
States have enumerated a variety of different legal standards for causation of death; “direct result,” “caused by,” “proximately caused,” and “results from” being the more common. Also included are “recklessly causes” and “more likely than not.” Each standard has its own legal ramification. It is important to note, however, that the analysis of proximate causation in tort law is quite different from that analysis applied in criminal law. Mere negligence may suffice in a personal injury case, but not in a criminal matter where gross or wanton disregard is needed to show criminal negligence.
In those states making use of a result-oriented scheme, states may follow the reasoning set forth in the leading federal case on the issue, Burrage v United States. Burrage was prosecuted under the provisions of 21 U. S. C. § 841(b) (1) (C) which provides for punishment in the event that “death or serious bodily injury result[ed] from the use of [the drug].” In Burrage, long-time drug user Banka died following an extended binge that included using heroin purchased from Burrage. At trial, medical experts testified that Bank might have died even if he had not taken the heroin Burrage provided. Denying a motion for judgment of acquittal, the trial court instructed the jury that the government only had to prove that heroin was a contributing cause of death. The U.S. Supreme Court looked at both actual and proximate cause, holding that, at least where the use of the drug distributed by Burrage was not an independently sufficient cause of the victim’s death, he could not be held liable unless such use is a “but-for” cause of death. Thus, under Burrage, a particular drug causing a contributory effect to death is not sufficient to create criminal liability.
This narrow approach to causation makes it especially important that the medical examiner and toxicologist both be consulted prior to initiating a prosecution. Beyond the issue of whether the death is an accident versus a homicide, the medical examiner and toxicologist must understand the legal requirements and what ultimately may be asked of them during testimony in homicide prosecutions such as these. The prosecutor must also understand the distinctions and potential nuances in the medical examiner’s stated cause of death.
Even under a felony murder scheme, often seen as a strict liability situation, causation may still be required. For example, the sole act of selling heroin to a purchaser, who, voluntarily and out of the presence and without the assistance of the seller, subsequently injected heroin and died as a result, may be insufficient to invoke the felony murder rule. In order to convict of felony-murder, it may be necessary in some jurisdictions to show that the conduct causing the death was done while in the commission of a felony or in furtherance of the design to commit the felony. Thus, if the commission of the felony is completed upon the sale, a felony murder charge cannot stand. Nor may the result causation element be ignored even in the strict liability situations. These statutes may still contain a result oriented causation requirement.
Thus, even when not specifically enumerated in the statute, causation remains an essential element. For example, where manufacturing or delivering a controlled substance is the underlying felony relied upon in a felony murder prosecution, the state might still be required to prove (1) the commission or attempt to commit the felony; (2) the defendant’s participation in such felony; and (3) the death of the victim as a result of injuries received during the course of the commission or attempt. Furthermore, the cause of death might not necessarily be the sole cause of death. And where the medical examiner has found that the ingestion of the drug was not the sole cause of death, the prosecutor will face an additional legal hurdle. Thus, in order to make the shift to treating overdose deaths as homicides, it is imperative that investigators and prosecutors find not only the correct legal scheme under which to proceed, but also be mindful of the causation element embedded in a statute or required by a jurisdiction’s case law.
Prosecuting overdose deaths as homicides will not be the silver bullet to the public health crisis this nation faces. However, it is one tool in the law enforcement arsenal which, if used appropriately, can assist locally in focusing on the drug dealers who take advantage of those who have become addicted to opioids.
Sources and Works Cited
 The offense of trafficking a controlled substance by possession with intent to distribute cannot be the predicate felony to a felony murder conviction because it is not an inherently dangerous crime. State v. Bankert, 117 N.M. 614, 975 P.2d 370 (1994).
 Ariz. Rev. Stat. § 13-1105 and 21 Okla. Stat. Ann. § 21-701/7.
 Alaska Stat. § 11.41.120.
 Minn. Stat. § 609.195.
 Ga. Code Ann. § 16-5-1.
 Iowa Code § 707.5.
 See, e.g., Ariz. Rev. Stat. § 13-1105, Ga. Code Ann. § 16-5-1.
 La. Rev. Stat. Ann. § 14:30.1, Mo. Rev. Stat. § 565.021.
 Mass. Gen. Laws Ann. Ch. 265, § 13.
 Nev. Rev. Stat. § 200.070.
 Mont. Code Ann. § 45-5-104.
 Fla. Stat. § 782.04(1(a)3.
 Colo. Rev. Stat. § 18-3-102(e).
 N.H. Rev. Stat. Ann § 318-B:26; N.J. Rev. Stat. § 2C:35-9.
 Tit. 18 Pa. Cons. Stat. Ann. § 2506.
 Del. Code Ann .tit 16 § 4752B.
 Mich. Comp. Laws Ann. § 750.317a.
 720 Ill. Comp. Stat. 5/9-3.3.
 Cal. Penal Code § 192.
 N.Y. Penal Law §§ 125.10, 125.15.
 H.B. 141, 132nd General Assembly.
 134 S. Ct. 881 (2014).
 See State v. Mauldin, 215 Kan. 956, 529 P.2d 124 (1974)
 N.J. Rev. Stat. § 2C:35-9
 See., e.g., State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983)
 See State v. Jenkins, 229 W.Va. 415, 729 S.E.2d 250 (2012)