Drug Homicide Prosecutions Make Overdose Problems Worse

Wisconsin leads the nation in filing homicide charges when someone dies from an overdose of an illegal drug, according to the Drug Policy Alliance, whose researchers found 882 news mentions of drug homicide prosecutions in Wisconsin 2011-16.  (Second highest was Ohio with 577; Illinois had 486 and Minnesota 433.)  Although the justifications for these prosecutions is a desire to punish the “drug kingpins” who make money on other people’s addictions and, thereby, deter drug sales, that is not what these prosecutions do.

Most people charged with homicide under these laws are not high-level drug dealers but the person who last touched the drug before the deceased, usually a friend or relative who was also using the drug. These laws cause deaths, because fear of prosecution makes people unwilling to call 911 and get medical help when there has been an overdose. Many people do not know that “delivering” an illegal drug is defined to including handing it to someone else, even if no money changes hands. If you ask me to hold an illegal drug for you for a while and then I give it back to you, we are both guilty of “delivering” an illegal substance. Even when money changes hands, the person who sells the drug to the user is generally a low-level dealer or, often, a user who buys and resells drugs to support their own addiction. Because the laws allow anyone involved in handling a drug that led to a death to be charged, the decision about whom to charge can be arbitrary. It is rare for prosecutors or police to even try to trace the source of a drug overdose back to a high-level dealer and more likely that they will charge whomever they find at the scene.

An investigative report earlier this year by  FOX6 news in Milwaukee  in February 2017 reported that they had built a database of more than 500 drug homicide cases filed since 2000. There have been more than 10,000 drug overdose deaths in Wisconsin in that period. Of the 100 most recent cases in Wisconsin, reporters  Bryan Polcyn  and  Stephen Davis found that only 11 were higher-level dealers, defined as at least one step removed from the victim. Sometimes a lower-level dealer is charged in the hopes of gaining information about the higher-up network, but most often the low-level dealer knows suppliers only by nicknames and the higher-level dealers successfully protect their identities.

One example was Samantha Molkenthen, a heroin addict who in 2016 received a prison sentence of 9 years plus six years extended supervision for first degree reckless homicide in the death of her friend and fellow user Dale Bjorklund in Jefferson County. Samantha and Dale were part of a group of friends who regularly bought and shared heroin together. Samantha herself overdosed in 2014 but survived; two other members of the group died shortly after Dale. The judge who imposed the sentence said that Samantha was at the “lower end” of heroin delivers, but that he wanted to make an example of her. Even though the supposed goal of charging low-level dealers with homicide is to “flip” them to identify higher-level dealers, Samantha had no information to give, so she was imprisoned.

Prosecutors quoted in the 2017 FOX6 story and  a prior November 2016 story about Samantha and the broader issue  argued that these prosecutions are valuable for sending a message even when they target people who are not drug dealers in any meaningful sense of the word.

But what message is sent? Thirty years of punitive drug laws have taught us that punitive crackdowns on drug dealers do little to nothing to deter illegal drug use. Instead the punitive approach wastes large sums of money that could be spent on more effective approaches, including treatment for addiction and underlying traumas that often contribute to drug abuse. In the meantime, deaths from drug overdoses go up when users are afraid to call 911 for fear of criminal charges. These homicide charges make it appear that prosecutors are “doing something” about heroin overdoses, but the evidence is that they are a bad practice that does much harm and creates no good.

Wisconsin, like many other states, first passed a “Len Bias law” in 1987 allowing for a second-degree murder charge for causing death through delivery of an illegal drug, but the law was not used much in Wisconsin until after 2000. The law has been amended several times, most recently in 2017. The current statute is 940.02(2)(a), (b) . It defines “reckless homicide” as a Class C felony  with two elements: (a) causing the death of another human being by manufacture or delivery (in violation of 961.41) of a controlled substance listed in 961 if another human being uses the controlled substance and dies as a result (b) administering or assisting in administering a controlled substance without lawful authority to do so to another human and that human being dies as a result. The footnotes state that anybody involved in handling the drug can be charged and that the decedent’s own actions in contributing to the death to not eliminate culpability.

The Drug Policy Alliance has produced a teleconference that gives more information about this issue. Listen to the teleconference.



One comment

  1. How rediculas… So so sad, someone dies unexpectedly and that’s bad as it is, but how exactly does the district attorney and police get enough information on someone if the victim sadly is dead, so do the police just threaten the other addicts at the location of the overdose death that they need to give a name or they are going to arrest and charge them…. Oh no!!! Literally THEE WORST THOUGHT FOR ANY OPIATE ADDICT, a jail cell, a homicide charge so bail will be very high, and that addict will have to ENDURE at least 7 days of thee worst sickness words can’t do it justice, so what do the police do that gives them enough info to charge someone who was not on scene , no video evidence, nothing more than some heroin addicts thinking thru all their connections and decide the stuck up dealer with the low quality, small quantity bags will be a fine way to not have to be the person going to jail and withdrawal for 7 days minimum to 60 days straight maximum withdrawal these days from synthetic heroin and things of that nature synthetics known as methadone, oxycodone, fentanyl.. for example kicking heroin cold turkey vs methadone if done is similar amounts for similar amounts of time heroin is a 6 o 8 day walk in park, methadone , my Lord, will have you asking yourself over and over on day 17 of same violent symptoms since onset on day 3 , why , WHY DID I GO TO THE CLINIC FOR KETHADONE AND WHY DOES NIBODY TALK ABOYT UT. . truth is the majority who quit when trying to *taper* off and lower dose , never really quit , it’s legal ad it’s not like your stealing money for a Dixie cup size sip EVERY SINGLE MORNING ” HOW CAN ANYONE WHO WAS JUST SUCKING ¢®€√ FOR 20 DOLLARS FOR MONTHS OT YEARS OR STEAKING ETC UTS SEEMS LIKR ITS BOT THST BAD, SO THEY JUST STAY ON IT, OR BIW A DAYS GET SUBOXONE.. IM FROM THE OLD DAYS LUKE 2003 SEEING TAR AD BROWN POWDER SUDE BY SIDE AND KNEW NITHING ABOUT IT AND DID NOT INFORM NE THST USING IT WULL CAUSE PHYSICAL ADDICTION AN LIFE AS SE KNOWN IT IS OVER . YET THEY EANT TO PUT , 60 YEARS MAX YEARS IN PRISON , BYT SENTENCE IS HASED ON KANY THINGS, LIKE MIST IMPORTANT CRIMINAL HISTORY , SO GUY 1 WHO HAS BARELY A SPEED TICKET GETS 5 YEARS AND GUY 2 WHO MAY HAVE SOME MIX OF PAST CRIMES AND HAS DONE JAIL TIME BUT NEVER ACTUAL PRISON NOW GETS SKAMMED WITH 15 YEARS AND 15 YEARS PAROLE… SO YA, MAKE A LONG STORY SHORT THE WORD OF THE DECEASED USER FRIENDS ON SCENE AND MAYNE A INTERVIEW WITH COPS AND SSY WE GOT THE HEROIN FROM THE GUY WHOS. A ASSHOLE DEALER CHARGES TO MUCH AND BLA BLA CAUSE ALL THSTS RACING THRU THEIR KIND MINDS IS BEI G ABLE TO CALL THE GUT WHO HAS THE SUPER POTENT MY FRIEND JUST DIED FROM USING IT.. AND THE DETECTIVES INTERVIEW AND SAY ALL THST THE DETECTIVE WAS TOLD FROM THE DEAD GUYS FRIEND SON SCENE AND PANIC SETS IN Nd bla bla next thing you know your being arrested… I just can’t keep texting it makes me sick hearing about the lowest level and middle man who does a favor cause she flirts with him he don’t even use but she’d be looking good naked at my house later so he does the deed purchases some h and someone o.d. now he goes to PRISON. How is the dealer to blame , the USA society and way of thought is rediculas, that addict would have walked from Atlanta Georgia to Iowa if that’s where they knew the drug would be at and stop this sickness. But ya let’s put guy who is on the very bottom of drug dealer world in prison. For up to 6o because someone overdose.. lastly most people over dose from mixing beer or Xanax or either drugs , but taking a Xanax a day can help me to have a few bucks to eat as you hustle up next way I’ll find money cause if you let me get sick and then I’m useless.. as a sick juny but 3 minutes after using the heroin again you go from sick to better than normal and it’s just a fight day after day but weeds almost fully legal and maybe 1 decade more all drugs will be taxed just like beer and cigs and it will be in higher quality control , not just a bunch of cut from the dealer on the corner..

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