By: Bethany Jewison*

A new phase of the opioid crisis.

Jarret MacCasland and his fiancé Flavia Cardenas shared heroin on her 19^th birthday.^[1] Flavia tragically passed away and Jarret, who was only a few years older, was sentenced to life in prison with no chance of parole for the “murder” of Flavia.^[2] Similarly, a 17-year-old girl in Tennessee was charged with two counts of second-degree murder after sharing heroin with two of her friends who both overdosed and died.^[3] In Pennsylvania, Emma Semler used heroin in a KFC bathroom with her younger sister Sarah and friend Jennifer Werstler.^[4] When Jennifer overdosed and died, Emma was charged with “distribution resulting in death” and faced a minimum of 20 years in prison.^[5] These stories have become tragically routine as friends and loved ones who use drugs together are increasingly being blamed and tried for each others’ deaths.

Fentanyl continues to have a tight grip on the drug trade and users.^[6] One of the most sinister aspects of fentanyl is that it carries a significant risk of causing an overdose and/or resulting in the unintentional death of those who consume it.^[7] Sometimes fentanyl is used intentionally, and other times it is hidden in other drugs unbeknownst to the user.^[8] Thus, the United States has seen an uptick in various types of drug overdoses in recent years.^[9] One uncomfortable side-effect of this increase in overdoses is a trend of prosecutors charging friends who shared drugs with “distribution with death resulting”^[10] and other times even first-degree murder.^[11] In addition, more than half of states, including Minnesota, now have “drug-induced-homicide” statutes.^[12] Drug-induced-homicide statutes allow prosecutors to charge a defendant with murder without having to prove that they had any intent to kill or harm the deceased.^[13] These charges can carry incredibly heavy sentences, often between 20-30 years in prison – some even receiving life without parole.^[14] These cases have begun to draw considerable media attention as many recognize the injustice of these severe sentences.^[15] Proponents of such punishments argue that they serve a deterrent purpose by making people more afraid to use fentanyl and other opioids.^[16] However, deterrence has frequently been found to be an ineffective tool for combating drug addiction.^[17]

The Controlled Substances Act is being warped to unfairly punish friends and acquaintances.

The Controlled Substances Act (“the CSA”) prohibits and lays out severe sentences for drug distribution that results in death or serious bodily injury.^[18] Although these provisions almost certainly were intended to punish large-scale kingpin drug dealers, they are increasingly being applied in situations where friends or loved ones are sharing and using drugs together. Fortunately, there has been promising movement away from handing out the excessive sentences for “distribution resulting in death” prescribed by the CSA in at least one circuit. In United States v. Semler, the case regarding Emma Semler mentioned above, the Third Circuit held that the word “distribution” in 21 U.S.C. § 841(b)(1)(C) should not be interpreted to include friends sharing small amounts of drugs amongst themselves.^[19] The Court vacated Semler’s sentence and remanded for a new trial. The Third Circuit reasoned, in part, that the congress which enacted the CSA intended to draw a “sharp distinction”^[20] between the sale of drugs and the personal possession and use of drugs, and that this interpretation is more consistent with the purposes of the Act.^[21]

Although this case is a first step in the right direction of dialing back the unjust sentences because it lays out the analytical framework needed to do so, it is unfortunately not binding precedent as it was not published in a reporter. However, it is still a promising sign that courts may be growing uncomfortable with the disproportionality of the sentences being handed down in these cases and sets up a framework that other advocates and courts can use going forward.

Such prosecutions may put people with drug dependencies even more at risk.

Not only is the Third Circuit’s interpretation of the word “distribution” more analytically sound, but good public policy also urges a shift away from charging friends sharing drugs with “distribution resulting in death” or murder. Purchasing and using illegal drugs involve significant inherent risks.^[22] Homelessness, poverty, and violence are seen in disproportionately high rates among drug users.^[23] Accordingly, drug users often find safety in numbers and use and purchase drugs from or in the presence of friends or acquaintances.^[24] However, when users know that they may be held responsible for their friend’s potential overdose and death, then they may be more likely to purchase and use drugs in isolation. This could lead to even more overdose deaths, as there will be no one around to notice if there are signs of distress. Thus, it also sets up perverse incentives which could lead drug users to engage in even greater risks.

The CSA’s provision related to “distribution with death resulting” likely was intended to allow vigorous prosecution of drug kingpins who intentionally lace drugs or sell very dangerous substances likely to lead to overdose or death.^[25] Therefore, other federal courts should follow the Third Circuit’s reasoning and interpretation and hold that groups of friends or acquaintances who share small amounts of drugs among themselves are not “distributing” controlled substances for the purposes of the CSA. In addition, state prosecutors should abandon the harmful trend of charging friends who have shared drugs resulting in the loss of one of their lives with murder. While concerns about the dangers of fentanyl and opioid use are valid, handing out life sentences to fellow addicts after someone overdoses is a cruel and unhelpful response.

*Bethany Jewison is a Note and Comment Editor for JLI Vol. 42.

^[1] Rob Kuznia, “Her fiance gave her heroin. She overdosed. Does that make him a murderer?” (May 8, 2016) https://www.washingtonpost.com/national/her-fiance-gave-her-heroin-she-overdosed-does-that-make-him-a-murderer/2016/05/08/f9a9e79a-f29b-11e5-a2a3-d4e9697917d1_story.html.

^[2] Id.

^[3] Will McDuffie & Nadine El-Bawab, “Teen girl charged with murder after classmates die from fentanyl overdose” (May 19, 2023) https://abcnews.go.com/US/teen-girl-charged-murder-after-classmates-die-fentanyl/story?id=99454523.

^[4]  United States v. Semler, 858 F. App’x 533 (3d Cir. 2021).

^[5] Id.

^[6] United States Drug Enforcement Administration, “Facts about Fentanyl” (Accessed Oct. 31, 2023) https://www.dea.gov/resources/facts-about-fentanyl.

^[7] Id.

^[8] “Fentanyl Drug Facts”, NIH, https://nida.nih.gov/publications/drugfacts/fentanyl (June 2021).

^[9] National Institute on Drug Abuse, “Drug Overdose Death Rates” (June 30, 2023) https://nida.nih.gov/research-topics/trends-statistics/overdose-death-rates.

^[10] Semler, 858 F. App’x 533 (3d Cir. 2021).

^[11] Eli Saslowi, “He Tried to Save a Friend. They Charged Him With Murder.”, New York Times (June 25, 2023), https://www.nytimes.com/2023/06/25/us/fentanyl-murder-charge.html.

^[12] Health in Justice Action Lab and Legal Science, “Drug Induced Homicide Laws” (Jan. 2019) https://pdaps.org/datasets/drug-induced-homicide-1529945480-1549313265-1559075032.; Minn. Stat. 609.195.

^[13] Id.

^[14] See Kuznia supra n. 1, Federal Sentencing Guidelines §2D1.1 (2023).

^[15] New Hampshire Public Radio, Death Resulting (Dec. 2021) https://www.nhpr.org/inside-nhpr/2021-12-01/death-resulting-new-podcast-follows-a-drug-deal-that-leads-to-death-revealing-hard-questions-about-death-resulting-laws; Saslow, supra n. 2.

^[16] Jan Hoffman “Harsh New Fentanyl Laws Ignite Debate Over How to Combat Overdose Crisis” (June 21, 2023) https://www.nytimes.com/2023/06/21/health/fentanyl-overdose-crisis.html.

^[17] Jon Schuppe, “Imprisoning Drug Offenders Doesn’t Affect Use, Study Says” (June 20, 2017) https://www.nbcnews.com/news/us-news/imprisoning-drug-offenders-doesn-t-impact-use-study-says-n774346.

^[18] 21 U.S. Code § 841(b).

^[19] United States v. Semler, 858 F. App’x 533 (3d Cir. 2021).

^[20] Id.

^[21] Id.

^[22] Peter Grinspoon, “Poverty, homelessness, and social stigma make addiction more deadly”, Harvard Health (Sept. 28, 2021) https://www.health.harvard.edu/blog/poverty-homelessness-and-social-stigma-make-addiction-more-deadly-202109282602.

^[23] Id.; Paul J. Goldstein, “The relationship between

drugs and violence in the United States of America” https://www.unodc.org/pdf/world_drug_report_1997/CH3/Box3B.pdf.

^[24] Jason Ford et. al., “Friends and relatives as sources of prescription opioids for misuse among young adults: The significance of physician source and race/ethnic differences” Subst. Abus. (2020) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6954351/.

^[25] Neal v. United States, 516 U.S. 284, 288 (1996) (explaining that Congress enacted federal drug laws to “combat the menace of drug trafficking”).