Harsher penalties for drug dealing will increase overdoses, advocates say

Harsher penalties for drug dealing will increase overdoses, advocates say

By Taylor Knopf

As drug overdoses and deaths increase in North Carolina, as they are in many parts of the country, a bill to strengthen penalties for illegal drug distribution is quickly moving through the state legislature. 

Senate Republicans introduced Senate Bill 189 in early March during a news conference where lawmakers were surrounded by law enforcement and families who have lost loved ones to drug overdose. North Carolina sheriffs and district attorneys say they need this bill to impose higher penalties and lengthier prison sentences on people who distribute fentanyl — the potent synthetic opioid that’s been added to many street drugs in recent years.

“Incarceration should also be used as a tool to help stop people from distributing, selling fentanyl and other drugs. And putting criminals who distribute fentanyl behind bars will help to disrupt the supply of fentanyl and send a clear message that this kind of behavior will be unacceptable,” said bill sponsor Sen. Michael Lazzara (R-Jacksonville) during a legislative committee meeting.

The bill sailed through the Senate with unanimous support and is awaiting a committee hearing in the state House of Representatives. 

But some substance use experts say this approach to a public health crisis will likely cost more lives.

“This law feels like death by 1,000 paper cuts, because they’re all minor changes — all of which are harmful and none of which we have any reason to believe actually reduces the harms of the drug supply in our community,” said Jennifer Carroll, a substance use researcher and assistant professor of anthropology at North Carolina State University. 

As the drug overdose epidemic has steadily worsened over the past decade, state lawmakers have tried several approaches in attempts to curb the problem — from legalizing syringe exchanges to funding addiction treatment to harsher penalties for drug distribution. In 2019, lawmakers passed a “death by distribution” law that allows prosecutors to charge someone with second degree murder if they sell drugs to someone who then dies of an overdose. 

Senate Bill 189 would essentially strengthen the state’s death by distribution law. Advocates for people who use drugs say these types of laws only disrupt the drug supply, which creates more potential for overdoses. Additionally, with second degree murder charges on the line, advocates say people using drugs will be hesitant to call for emergency services if someone overdoses. 

“Funds desperately needed to bolster public health in vulnerable, and often overlooked, communities are instead funneled to outdated and fruitless tactics that do nothing to save lives,” reads a statement issued by the North Carolina Survivors Union, a community-led statewide harm reduction organization of people impacted by drug use. 

Harm reduction organizations aim to reduce  the negative effects of drug use by providing sterile injection and drug use supplies, testing for hepatitis C and HIV, providing an opioid overdose reversal drug called naloxone, and other supplies and resources to people in active substance use.

Drug dealer versus drug user

In his 36 years as a prosecutor, Ernie Lee said he’s seen some of the same people cycle in and out of jails and prisons and continue to use drugs. Now he’s seeing multiple generations of people in the same families using drugs and getting arrested. 

Lee is the district attorney for Sampson, Duplin, Jones and Onslow counties — rural counties in eastern North Carolina with few treatment options for mental health and substance use issues. 

“There has to be punishment, but I also wish there could be more treatment while you’re being punished,” Lee told NC Health News while at the state legislature supporting Senate Bill 189. “Because otherwise it just becomes a revolving door. It becomes very expensive for the state of North Carolina. Also it’s just the right thing to do. These people have problems.”

Lee said people in his area of the state need to be able to get help locally, instead of being forced by lack of options to travel hours away to the Triangle area.

But Lee and many other prosecutors draw a firm distinction between people using drugs and drug dealers. 

“For those people out there selling drugs, I have no sympathy for them, because they are basically profiting off of others’ misery,” Lee said. “I’ve not been hesitant about prosecuting an individual for second degree murder, where they cause the death of someone by selling drugs to them.”

Advocates for people who use drugs say the line between dealer and user isn’t so clear cut. Some people who use drugs will sell enough drugs to support their own drug habit or to supply just their friends or family members with drugs. 

People who use drugs are encouraged, for safety reasons, not to use drugs alone. So if someone has supplied drugs to someone they are using with, and that person overdoses, those folks are going to hesitate to call for help — for fear of being charged with second degree murder, advocates say.

Good Samaritan Law

People are always encouraged to call for help in the event of an overdose. And a 2015 update to the state’s 2013 Good Samaritan Law provides limited immunity from certain drug possession charges if someone calls 911 during a medical emergency. 

Senate Bill 189 sponsors say they still want people to call for help, and the bill would add possession of up to 1 gram of fentanyl to the Good Samaritan Law protections in North Carolina. 

But advocates have long said the state’s Good Samaritan Law doesn’t go far enough. There are questions as to whether the victim of the overdose or others at the scene of an overdose would receive the same limited legal protections from arrest or prosecution if someone called for help. 

“It’s really hard for folks to want to put themselves at risk for any type of engagement with law enforcement,” said Ainsley Bryce, executive director of Holler Harm Reduction in Madison County.

Bryce said that there were 17 overdoses reported to Holler Harm Reduction in the first two weeks of March. People at only two of those incidents called 911 for help because they didn’t have naloxone available. 

“That’s 15 people who were just not willing to interact with law enforcement because they were afraid of arrest,” she said. 

“These laws don’t offer protections, and they’re not even necessarily being followed by the letter,” she added. “We still have those being arrested for paraphernalia that they should be covered under. So I can’t imagine adding a law like this to the books, what that’s going to look like for our folks.”

What the data shows

North Carolina’s death by distribution law — which the latest legislative proposal seeks to strengthen — was passed in 2019 and went into effect Jan. 1, 2020. 

In 2019, law enforcement agencies and district attorneys said they needed the death by distribution laws to put dealers behind bars and curb drug overdoses in the community. Advocates, including Carroll, told lawmakers at the time that death by distribution laws would decrease 911 calls during an overdose and would lead to a more unstable illegal drug market and more fentanyl entering the drug supply. 

At the time, no one could have predicted a global pandemic, which substance use experts and people on the ground said also greatly disrupted the drug supply and increased overdoses. Whatever the combination of factors, fentanyl-involved overdose deaths have only climbed since 2019.

The number of overdose deaths where fentanyl was detected more than doubled from 1,490 in 2019 to 3,062 in 2022, according to the North Carolina Office of the Chief Medical Examiner

The state Department of Health and Human Services’ Opioid and Substance Use Action Plan Data Dashboard shows a decrease in reported law enforcement overdose reversals across the state since 2018. While not all counties have reported their law enforcement reversal data to the state, those that did show a decrease over time.

In FY 2019–20, there were 10 death by distribution cases filed by district attorneys statewide, according to data collected by the NC Administrative Office of the Courts. In FY 2020–21 there were 35 death by distribution cases, and in FY 2021–22, there were 46 cases.

A review of the data from the Administrative Office of the Courts shows that Harnett County prosecuted the most over the three-year span, with 11 total cases. Harnett County has seen a 142 percent increase in overdose deaths from 2018 to 2021, according to state data. The latest available rate of overdose deaths in Harnett was 52.2 per 100,000 people, while the statewide rate of overdose death is 38.5 per 100,000 people. 

Closure for families

District Attorney Lee told senators gathered in a committee in March about a case he prosecuted in 2016 after a woman in his county came to him and asked him to charge the person who sold the drugs that killed her loved one. North Carolina has had a form of a second degree murder charge on the books for drug distribution since the 1980s

“I worked for the Onslow County sheriff at that time, and we were able to bring charges against an individual after extensive investigation to prosecute that case,” he said, “And he was convicted of second degree murder. And so I’m very passionate about this.

“I have people calling me continuously: What can you do to help my son? What can you do to help my daughter? What do you do to help my family?” Lee said. 

The North Carolina Sheriffs’ Association also released a statement supporting Senate Bill 189, saying it would protect law enforcement officers and the public. 

“I thank the committee for standing up for supporting the families today and families across North Carolina [who] have lost family members to these overdoses and fentanyl poisoning,” Rockingham County Sheriff Sam Page told one senate committee. 

Carroll, along with researchers Brandon Morrissey and Taleed El-Sabawi, surveyed North Carolina prosecutors to better understand their reasons for pursuing death by distribution cases, also known as drug-induced homicides. NC Health News reviewed their findings, which are in the peer review process. 

Two-thirds of survey respondents reported having charged someone with a drug-induced homicide in the past. Respondents indicated that two of the highest rated reasons for bringing death by distribution charges were “justice for the deceased” and “justice or closure will be obtained for the family of the deceased.” Carroll added that the respondents were less confident that death by distribution cases would stop overdoses. 

“We found that one point prosecutors really agree on is that these laws will bring some sort of closure to the family,” Carroll said. “That is not a valid use of prosecution.” 

In Madison County, Bryce said she knows many local residents who have lost loved ones to overdose who do not want closure in this way. 

“Who’s gonna feel better that their son-in-law’s suddenly arrested for murder after they’ve lost their daughter?” Bryce said. “I know a lot of folks locally who have lost someone to overdose, and I don’t know anybody who’s gunning for vengeance on the person who provided the drugs in the first place. That’s not really a top priority. I think the top priority is ensuring that there’s safety available if that person is looking for it.”

What will help?

Advocates for people who use drugs want to see the same energy and money put toward public health solutions that have been shown to reduce overdose deaths. 

“It is time for lawmakers to recognize the failings of the Drug War and come to the realization that we cannot punish our way out of the overdose crisis,” reads the statement from the Urban Survivors Union. 

“Instead, we must prioritize a community-informed, culturally competent and evidence-based approach to finally address this public health crisis,” the Union added. “That means investing in accessible, humane drug treatment, funding harm reduction strategies and passing a stronger Good Samaritan Law that aligns with the problems facing North Carolinians today.” 

Other countries have dealt with drug overdose epidemics in the past and have taken seemingly radical, but effective strategies to reduce deaths, get people into treatment and weaken their illegal drug markets.

Carroll said that the United States has been using a criminal justice approach to drug use for decades and it’s not working. 

“If it was going to help, it would have helped by now,” she said. “They are basically positing a … strategy for reducing overdose that is ignorant and wrong.”

“It would be really, really great if the same energy went into things that we actually know reduces deaths — that we actually know keeps young people safe,” Carroll said, “and that we actually know brings people out of crisis if they are living with substance use disorder.”

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