How Can We Halt Heroin Deaths?

Monday, 10 Feb 2014 03:19 PM

By Alan Dershowitz

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Immediately following the tragic death of one of the world’s greatest contemporary actors, Philip Seymour Hoffman, his friend (and himself a sometime drug addict), Aaron Sorkin, said that: "If one of us dies of an overdose, probably 10 people who were about to won't."
 
What he meant was that other potential addicts, seeing the lethal potential of heroin addiction, will be deterred from doing what Hoffman did to himself. But history has proved that to be a false hope. Similar views were expressed following the drug overdose deaths of other famous people such as Lenny Bruce, John Belushi, Len Bias, David Kennedy, and assorted rock and roll stars.
 
The deterrent impact of such deaths has been short-lived at best. So far nothing has worked — not increased penalties for drug dealers, not new laws that hold the drug dealers criminally responsible for the deaths of their customers, not “just say no” media campaigns. The number of drug deaths, especially those attributable to heroin, are increasing. Can anything be done to eliminate, or at least reduce the effects of, this scourge?
 
Perhaps not. Perhaps heroin addiction is an intractable problem. But the one solution we have never tried may hold some promise, though it is not without considerable risks.
 
What if we were to decriminalize heroin use and treat addiction as the serious, and perhaps incurable, disease that it is? What if we allowed heroin addicts to receive medically administered heroin in quality and quantity that reduced the lethal potential? What if we could put the street sellers out of business by making the heroin available free of charge to desperate addicts, so that those (unlike Hoffman) who could not afford to buy them would no longer have to commit predatory crimes to pay for their habit?
 
The honest answer to these questions is we don’t know for sure, because unlike with marijuana, we have no real model from which to judge.
 
It is possible, of course, that the medicalization and decriminalization of heroin may make the problem worse by making it easier to become addicted and thereby increasing the number of addicts. That is a real possibility. But it is also possible that medicalization may both decrease the number of addicts and also decrease the risk to existing addicts. Is the experiment worth trying, or are the risks simply too great?
 
This is certainly an issue worth discussing and debating, and perhaps Hoffman’s death will generate such a debate. Even if rational debate and research produced an affirmative answer to this question, it is unlikely that legislators would be prepared to take the political risks inherent in appearing soft on crime. That is a problem we face in general whenever rational approaches to criminal justice are considered. We prefer seeming tough to being smart.
 
The one solution that will never work is one that has been widely proposed following Hoffman’s death: namely to hold the dealer who sold Hoffman his lethal dose of heroin criminally responsible for his death. Some states have applied the “felony-murder” law to such deaths, while others have enacted specific statues turning the criminal act of providing drugs into a homicide if death results. There is pressure on New York to find and prosecute Hoffman’s dealer for homicide, perhaps murder.
 
It is easy to understand why the public demands homicide prosecutions against drug providers whose product caused the death of a beloved celebrity, such as Philip Seymour Hoffman. A person lies dead. Someone must bear responsibility for his death. It is easy to scapegoat the drug provider. But is it fair to single out the provider whose heroin happened to have killed a celebrity (or anyone else)?
 
The answer is plainly no! All drug providers are equally culpable — as a matter of morality — regardless of whether their customer happened to live or die. Put another way, the dealer who provided heroin to Hoffman a few weeks ago is just as morally culpable as the one who provided the heroin that turned out to be lethal. To be sure, if the lethal dose had contained especially dangerous additives, and if the provider didn’t tell the customer about the added danger, that would change the moral equation. Or if the provider sold heroin to children or to adults who he or she knew were particularly vulnerable, that, too, might be different.
 
But there is no acceptable moral distinction between two dealers who sell the same product, in the same way, to the same people — and one of their customers, for reasons unrelated to anything the dealers did, happens to die this time. Nor is there any such distinction between those dealers who sell to celebrities and those who sell to obscure street addicts (except that celebrities have more resources and options to try to break the habit, so dealers who sell to street addicts may perhaps be more culpable, though they are less frequently prosecuted).
 
Why then does legal culpability not follow moral culpability? Why does the law sometimes punish more severely those dealers whose clients happen to die from an overdose? The answer goes beyond the supplier-addict issue. In general, the law punishes equally culpable conduct differently depending on the result, even when the result is completely fortuitous and beyond the intent of the actor.
 
Consider two equally drunken or drugged drivers who become unconscious behind the wheel while driving at the same speed in the same neighborhood. The car of one of them crashes into a school bus resulting in the death of several children, while the car of the other one pins harmlessly against the wall a bank robber escaping with the loot. The first is convicted of multiple homicides, while the second is given a reward, despite their morally indistinguishable conduct. In philosophy this is called “moral luck” — an oxymoron if there ever was one, since luck, which is random, can never be moral, which is purposive.
 
But the law insists on judging legal culpability by reference, at least in part, to results. Hence the felony murder rule, which says that if a defendant has committed a felony (such as selling heroin) that causes death (such as by an overdose), the original felony (sale of heroin) is escalated to murder. In some jurisdictions, felony murder, even when the death was utterly unpredictable and fortuitous, carries the death penalty.
 
This rule, which originated in the British common law, has now been abolished in Great Britain and most other western countries, but it endures in the United States, where it is often applied in a Draconian manner, turning our courts into betting parlors where a form of legal Russian roulette is played with the lives and liberty of defendants. Tough but not smart!
 
In the case of Philip Seymour Hoffman, the issue may be a bit more complicated, since New York’s felony murder law specifies the felonies that can serve as a basis for a murder charge and the sale of heroin is not among them — at least not yet!
 
Moreover, under the traditional felony murder rule, as well as under ordinary homicide law, the death must have been caused by the defendant’s actions. The question would then arise as to whether Hoffman’s decision to inject himself in the manner and dosage that killed him constituted an intervening cause that broke the chain of causation or was not reasonably foreseeable to the defendant.
 
More generally, whether Hoffman’s entire history of addiction, rehab, and re-addiction — for which the particular dealer or dealers at issue were not directly responsible — was the real cause of his tragic and untimely death. The New York courts have held that under similar circumstances a dealer cannot be found guilty of homicide, but there is no assurance that they will continue so to rule.
 
There were many fingers around the syringe that administered Hoffman’s final fix. To attribute sole responsibility to the dealer who happened to supply the doses of heroin that ultimately killed Hoffman would neither do justice to the dead nor prevent future tragedies that grow out of the culture that produces far too many heroin deaths among celebrities and ordinary addicts.
 
A more rational approach would be to punish all dealers more severely, because the death of their customers is a risk inherent in every sale. But the punishment for dealing heroin is already very high and any increase is unlikely to increase the deterrent impact. That is why the idea of medicalization and decriminalization of heroin use should be seriously considered, despite its potential downside risks.
 
Alan M. Dershowitz is the Felix Frankfurter Professor of Law at Harvard Law School. He is a graduate of Brooklyn College and Yale Law School. His latest book is his autobiography, "Taking the Stand: My Life in the Law." Read more reports from Alan M. Dershowitz — Click Here Now.
 
 
 
 
 

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