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Is murder the right charge for drug dealing? Some states think so.

A person prepares heroin.

Universal Images Group via Getty Images

In several states, people are going to prison — for life — for murder. Only they never shot or stabbed someone, and they never intended to kill anyone. Instead, this group of people is being charged for murder for merely supplying a drug.

Rob Kuznia reports for the Washington Post:

With deaths from heroin and opioids at their highest level in U.S. history, prosecutors have begun charging those who supplied the final dose with murder, even when that person is the deceased's friend, lover, sibling or spouse.

The new initiative is sometimes in direct conflict with good Samaritan laws, which protect addicts from being charged if they call 911 when a fellow user is overdosing. The tougher approach also is in marked contrast to a growing movement that seeks to treat drug addiction as a disease and public-health crisis rather than criminal behavior.

Prosecutors in New Jersey, Tennessee, West Virginia, and Louisiana have recently dusted off dormant War on Drugs-era laws to subject sellers and providers to homicide charges and stiff sentences on par with convictions for shooting, beating or poisoning people to death. In New York, Ohio, and Virginia, lawmakers have introduced bills to allow murder charges to be filed in drug-overdose deaths.

The response to the opioid painkiller and heroin epidemic has largely focused on dealing with the crisis as an issue of public health, not criminal justice. The Obama administration, for one, has proposed big increases to funding and access to treatment programs for people suffering from drug use disorders.

But as the Post's story reveals, not everyone is on board. So they are pulling up old laws — and in some cases calling for new ones — to go after drug users and their friends or family through much more punitive means.

The Post goes through the grisly story of Jarret McCasland. He was convicted of murder and sentenced to prison for life after his fiancée overdosed and died of heroin, because he administered the fatal dose of the drug. So McCasland lost his fiancée, and then he was punished for it — even though he had no demonstrable intent to kill her.

On one hand, this just seems incredibly unfair. But it's also counterproductive — if the goal is to stop the opioid crisis.

"Tough-on-crime" laws don't work

Going after drug users and dealers with incredibly harsh punishments, as these prosecutors are doing, mimics the same approach that has failed to decrease drug trafficking and use for years.

Over the past few decades, federal and state governments responded to drug crises by dramatically increasing their punishments for drugs. The idea: If they could go after the supply of drugs, they could raise prices — making the substances less affordable — and deter use.

But by several metrics, it didn't work out that way.

Since the 1980s, the price of heroin has plummeted. In 1981, the median price of a gram of pure heroin, based on sales of more than 10 grams, was $2,203.31, according to the Office of National Drug Control Policy. In 2007, the year with the latest data available, it was $146.56.

Drug use, meanwhile, actually increased during the 2000s — despite laws passed in the '80s and '90s to crack down on drugs. And drug overdose deaths hit an all-time high in 2014. (To some degree, the mere existence of the current heroin epidemic marks the failure of drug war policies.)

Meanwhile, research shows that punitive drug policies don't stop drug trafficking. A 2014 study from Peter Reuter at the University of Maryland and Harold Pollack at the University of Chicago found there's no good evidence that tougher punishments or harsher supply elimination efforts do a better job of pushing down access to drugs and substance abuse than lighter penalties. So increasing the severity of the punishment doesn't do much, if anything, to slow the flow of drugs.

That doesn't mean prohibition is completely ineffective. It likely prevents some use: A 2014 study by Jon Caulkins, a drug policy expert at Carnegie Mellon University, suggested that prohibition multiplies the price of hard drugs like cocaine by as much as 10 times. And illicit drugs obviously aren't available through easy means — one can't just walk into a CVS and buy heroin. So the drug war is likely stopping some drug use: Caulkins estimates that legalization could lead hard drug abuse to vastly increase, by triple or more.

But it is possible to ban drugs without imposing ridiculous punishments, including life-long prison sentences, for their use and sale. And given the past few decades, in which drug use has not subsided despite increasingly punitive policies, many policymakers say it's time for a new approach.

Excessive criminalization can hurt public health actions

Given the lack of progress in bringing down drug use over the past few decades, many policymakers have called for reform to America's anti-drug policies.

Even Michael Botticelli, the leader of the federal office in charge of the drug war (the Office of National Drug Control Policy), famously said, "We can't arrest and incarcerate addiction out of people. … Not only do I think it's really inhumane, but it's ineffective and it costs us billions upon billions of dollars to keep doing this." That's why his office has proposed dramatically increasing spending on drug treatment programs.

But on top of being counterproductive, excessive criminalization can make drug abuse worse.

In some cases, people overdose when they are near friends or family. But these peers may be scared of calling the police or paramedics if they think, for example, that it could land them in prison for life because they were also using or supplied the drugs. And then the person overdosing will likely die without ever getting medical care, such as the lifesaving opioid overdose antidote naloxone.

To combat this, 30 states, the Washington Post reported, have passed Good Samaritan laws exempting drug users from minor drug violations if they call 911 and stay with a friend who's overdosing. This is explicitly meant to ease someone's concerns that they'll be prosecuted if they stay to help a friend — the same concerns that are actively perpetuated by prosecutors charging people with murder for drug dealing.

The threat of criminalization also adds to the stigma drug users face, which can deter them from getting treatment for a drug use disorder. After all, getting treatment essentially amounts to them admitting they've been breaking the law for as much as months or years. Who wants to do that?

These issues are why some drug policy reformers argue for outright decriminalization of all drug use. Portugal, for instance, decriminalized all drugs in 2001 in part to dispel fears that getting care for drug abuse could land someone in prison. As a 2009 Cato Institute report stated, "Interviews with Portuguese drug officials confirmed that before decriminalization, the most substantial barrier to offering treatment to the addict population was the addicts' fear."

It remains an open question whether decriminalization is a good idea. But after decades of failed drug policies, prominent drug policy experts are in agreement that anti-drug enforcement is already too harsh, and can be scaled back without leading to more drug abuse, especially if it's coupled with more access to drug abuse treatment.

But instead of heeding the lessons of the past several years and the research, many states are doubling down on their punitive policies of old — and sending drug users to prison for life.

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