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, Tennessee is one of those states. The following is an excerpt from Tennessee State Law:
(a) A sentence for a felony is a determinate sentence.
(b) The authorized terms of imprisonment and fines for felonies are:
(1) Class A felony, not less than fifteen (15) nor more than sixty (60) years. In addition, the jury may assess a fine not to exceed fifty thousand dollars ($50,000), unless otherwise provided by statute;
(2) Class B felony, not less than eight (8) nor more than thirty (30) years. In addition, the jury may assess a fine not to exceed twenty-five thousand dollars ($25,000), unless otherwise provided by statute;
(3) Class C felony, not less than three (3) years nor more than fifteen (15) years. In addition, the jury may assess a fine not to exceed ten thousand dollars ($10,000), unless otherwise provided by statute;
(4) Class D felony, not less than two (2) years nor more than twelve (12) years. In addition, the jury may assess a fine not to exceed five thousand dollars ($5,000), unless otherwise provided by statute; and
(5) Class E felony, not less than one (1) year nor more than six (6) years. In addition, the jury may assess a fine not to exceed three thousand dollars ($3,000), unless otherwise provided by statute.
(c) (1) A sentence to pay a fine, when imposed on a corporation for an offense defined in title 39 or for any offense defined in any other title for which no special corporate fine is specified, is a sentence to pay an amount, not to exceed:
(A) Three hundred fifty thousand dollars ($350,000) for a Class A felony;
(B) Three hundred thousand dollars ($300,000) for a Class B felony;
(C) Two hundred fifty thousand dollars ($250,000) for a Class C felony;
(D) One hundred twenty-five thousand dollars ($125,000) for a Class D felony; and
(E) Fifty thousand dollars ($50,000) for a Class E felony.
(2) If a special fine for a corporation is expressly specified in the statute that defines an offense, the fine fixed shall be within the limits specified in the statute.
(d) A sentence for a misdemeanor is a determinate sentence.
(e) The authorized terms of imprisonment and fines for misdemeanors are:
(1) Class A misdemeanor, not greater than eleven (11) months, twenty-nine (29) days or a fine not to exceed two thousand five hundred dollars ($2,500), or both, unless otherwise provided by statute;
(2) Class B misdemeanor, not greater than six (6) months or a fine not to exceed five hundred dollars ($500), or both, unless otherwise provided by statute; and
(3) Class C misdemeanor, not greater than thirty (30) days or a fine not to exceed fifty dollars ($50.00), or both, unless otherwise provided by statute.
(f) In order to furnish the general assembly with information necessary to make an informed determination as to whether the increase in the cost of living and changes in income for residents of Tennessee has resulted in the minimum and maximum authorized fine ranges no longer being commensurate with the amount of fine deserved for the offense committed, every five (5) years, on or before January 15, the fiscal review committee shall report to the chief clerks of the senate and the house of representatives of the general assembly the percentage of change in the average consumer price index (all items-city average) as published by the United States department of labor, bureau of labor statistics and shall inform the general assembly what the statutory minimum and maximum authorized fine for each offense classification would be if adjusted to reflect the compounded cost-of-living increases during the five-year period.
(a) Second degree murder is:
(1) A knowing killing of another; or
(2) A killing of another that results from the unlawful distribution of any Schedule I or Schedule II drug, when the drug is the proximate cause of the death of the user.
(3) A killing of another by unlawful distribution or unlawful delivery or unlawful dispensation of fentanyl or carfentanil, when those substances alone, or in combination with any substance scheduled as a controlled substances by the Tennessee Drug Control Act of 1989, including controlled substance analogs, including controlled substance analogs, is the proximate cause of the death of the user.
(b) In a prosecution for a violation of this section, if the defendant knowingly engages in multiple incidents of domestic abuse, assault or the infliction of bodily injury against a single victim, the trier of fact may infer that the defendant was aware that the cumulative effect of the conduct was reasonably certain to result in the death of the victim, regardless of whether any single incident would have resulted in the death.
(1) Second degree murder is a Class A felony.
(2) Notwithstanding the Tennessee Criminal Sentencing Reform Act of 1989, compiled in title 40, chapter 35, a person convicted of subdivision (a)(2) where the victim is a minor shall be punished from within one (1) range higher than the sentencing range otherwise appropriate for the person.
What You Can Do
Let your elected officials know that enough is enough.
Together we can and will bring these perpetrators to justice.
Sign A Petition
Attend A Rally
A rally or candlelight vigil can raise awareness while honoring the lives of those we have lost.
Find a local event.
Contact Your Congressmen
We can make a powerful impact by urging our members of Congress to support and advocate Drug Induced Homicide Law. They care what their constituents have to say.
Here's what you need to know...
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Drug Induced Homicide, Inc.® is registered as a 501(c) nonprofit organization. Contributions are tax-deductible to the extent permitted by law. Drug Induced Homicide, Inc.® 's tax identification number is 85-0772680.
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Our mission is to:
- Introduce Drug Induced Homicide legislation to Sates that do not currently have this statute.
- Raise awareness about the effectiveness of criminal investigation and prosecution in reducing deaths related to suspected drug toxicity.
- Support families of victims who were unlawfully delivered a controlled substance resulting in their death.
Drug Induced Homicide, Inc.® is a registered 501(c) nonprofit organization.
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)