Who is to blame? Who is to blame for thousands of preventable overdose deaths every year? Who is to blame for the sudden loss of a loved one, sometimes after a single pill?
This is the unbearable question that the overdose crisis has forced us to confront, over and over again. Unfortunately, Colorado’s lawmakers are considering one answer to that question that would make the crisis even worse.
The legislature is considering a law that would bestow expansive new powers on prosecutors to charge any and all accidental overdoses as murder, carrying over three decades in prison.
These so-called “drug-induced homicide” laws have been around since the 1980s in about half the states in the country. The theory behind them is that they will reduce drug supply by taking down cartel bosses slinging massive amounts of lethal drugs.
That theory has never been matched by reality. Instead of catching drug kingpins, studies show these extreme laws are inevitably used against grieving friends and family of the deceased and people struggling with substance use disorder. Instead of catching “big fish,” these laws ensnare people selling very small amounts of drugs, and are wielded more often and more harshly against people of color.
It is not surprising these laws do not work, because it is impossible to deter something nobody intends to happen — an accidental overdose. That is an unavoidable truth no matter how “strong a message” is sent by ratcheting up penalties.
Drug-induced homicides do send one kind of message, however, and that message is: “Do not call for help if a person you shared drugs with is overdosing.” Good Samaritan laws can save lives by allowing people to call 9-1-1 without fear of prosecution. However, studies show that Good Samaritan laws do not work when people fear they may face decades of prison time. In fact, research has documented a grim certainty that overdose deaths increase when the passage of drug-induced homicide laws is reported by the media.
Not only is it ineffective to inflict blame and punishment on grieving friends and family members of the deceased, it is wrong. We should not threaten people who suffered the loss of a friend or family member with decades in prison. Or take away the entire adult life of a person who may have been selling small amounts of drugs. Or ask communities of color to once again shoulder a disproportionate amount of relentless punishment.
Simply put, there is no justice in shoveling punishment on top of people who are already half-buried. There is no justice in treating an unintentional overdose like murder.
Supporters claim Colorado’s prosecutors will use their discretion to avoid the worst of these outcomes. But prosecutors have had similar discretion in other states, and the inevitable result has always been the same. No advances in the fight against the overdose crisis, and unfathomable tragic overdoses made worse by ruining additional lives.
Just last year, prosecutors convinced lawmakers to allow them to pursue these extreme prison sentences when an overdose involved fentanyl — based on the argument that fentanyl was exceptionally dangerous. Limiting this extreme and risky law only to fentanyl cases is a key feature of the law, not a bug nor a “loophole.”
We can expect to find last year’s law has made no progress on overdoses, but Colorado would be wise to closely and carefully monitor the application and impact of that law over the next several years, before rushing to dramatically expand it to include all overdoses from any drug.
Colorado deserves a plan that is tough and smart on the overdose crisis. Many parts of that plan are easily within reach. We can save lives immediately with overdose reversal treatments, expansive Good Samaritan laws, and overdose prevention centers. We can reduce the demand for unsafe drugs with robust prevention, treatment and recovery programs.
We can focus our limited law enforcement resources on disrupting the manufacture of unsafe synthetic drugs, rather than locking up people whose arrest will cause not even a momentary blip in the supply of drugs.
You know who actually deserves the blame for the overdose crisis? We all do, collectively. The overdose crisis is a policy failure. So let us take all the pain and anger we share and hold ourselves a little more accountable for creating real policy solutions to this crisis. Instead of directing all that anger and blame at people who do not deserve it.
Fortunately, we know what policy solutions will save lives, reduce demand, and reduce supply — and these solutions can be passed by lawmakers this year. We should commit ourselves to embrace strategies that will save lives and help us interrupt the endless, painful and futile cycle of blame.
Taylor Pendergrass is the ACLU of Colorado Director of Advocacy. As a veteran strategist, civil rights attorney and former ACLU national Deputy Director of Campaigns, Pendergrass has spent more than 15 years fighting for transformative social change, racial justice and equality.