Theresa Glinski, Law & Public Policy Scholar, JD Anticipated May 2021
Pennsylvania’s Drug Delivery Resulting in Death (also known as DDRD or drug overdose homicide) statute is supposed to target drug dealers, but instead, family members, friends, and those with substance use disorders have become a target of the law. Drug overdose homicide prosecutions in Pennsylvania have risen rapidly in the last decade; from 2013 to 2017 alone, the number of individuals charged under the law rose 1,266%. Prosecutors across Pennsylvania argue that the law is an important tool to combat the opioid epidemic, but the law cuts against public health efforts to stop overdoses from happening, and there is no evidence that the law works to deter behavior.
Pennsylvania’s drug overdose homicide law is a remnant of the Reagan-era war on drugs. Initially passed in 1989, the law was seldom used by prosecutors, and, if charges were brought, convictions under the law were rare. In 2011, Pennsylvania’s law was amended, which made prosecutions easier to obtain and the law’s penalty much steeper. Initially, the law carried a 5-year mandatory minimum prison sentence and a minimum $15,000 fine. Currently, those prosecuted under the law can face up to 40 years in prison. While the penalty increased in 2011, Pennsylvania legislators also removed the requirement that an individual must act with malice.
In order to obtain a conviction today, prosecutors must prove to a jury beyond a reasonable doubt that the person charged gave another individual a controlled substance and that person then fatally overdosed. Once it became apparent to prosecutors that convictions under the 2011 iteration of the law were successful, juries saw more cases brought forth under the law that was designed to help prosecutors more easily meet their burden of proof.
Whether someone will be charged with Drug Delivery Resulting in Death in Pennsylvania largely depends on which county they live in and who they are. Philadelphia County, for example, does not currently pursue drug overdose homicide prosecutions. And when it did, it did so sparingly. Over a five year period, the City pursued fewer than half the number of prosecutions that York County pursued in 2019 alone. Lancaster County leads the nation with 75 Drug Delivery Resulting in Death charges, while the number of charges in other counties remains in the teens.
Family members and friends of someone who overdosed and lower-level drug distributers are more likely to be prosecuted under the law, not the organized drug kingpins from whom the law was designed to protect the public. This is because larger-scale distributors are often one or two steps removed from a drug transaction and because of the evidence available to police.
Police and prosecutors often rely on text messages and communications to uncover who provided a controlled substance, like heroin. The “best evidence” in drug overdose homicide cases reveal arrangements where someone seeks drugs from another person through text messages and calls. Law enforcement can more easily charge an individual who was the last person to give the drugs to a person who fatally overdosed because of the evidence immediately available.
Instead of reducing the number of overdoses in Pennsylvania, the law dissuades people from seeking help for those who are experiencing an overdose. That’s because someone can be charged under the law despite calling 911, administering overdose inhibitors like naloxone, or taking other steps to prevent an overdose from becoming fatal. Pennsylvania provides protections to those who take efforts to prevent an overdose through its Good Samaritan law, but the Good Samaritan law provides no such protections from drug overdose homicide charges. Fear of calling 911 deters people from seeking lifesaving help when witnessing another in peril.
Instead of protecting public health and safety, Pennsylvania’s Drug Delivery Resulting in Death statute puts lives at risk. Public health law advocates and journalists have worked hard to sound the alarm about the widespread harm that the law poses to Pennsylvanians. One of the ways they do this is by educating public defenders on how to defend and challenge drug overdose homicide charges. In early November 2019, a free seminar for all public defenders in Pennsylvania was held in Harrisburg as part of these efforts. While this sort of advocacy is important and consequential, protection from such harmful legislation should not fall on public defenders and public health advocates alone.
Protecting the public from the harmful effects of Pennsylvania’s drug overdose homicide law requires initiatives by the Pennsylvania legislature and law enforcement. The Pennsylvania legislature must take steps to amend the law, or at least remove the law from the list of offenses not protected by the state’s Good Samaritan law. Prosecutors must think critically about whom they are charging, why they are doing so, and how those charges impact public safety and health at large. Prosecutors should refrain from bringing charges against individuals who have a substance use disorder.
Combatting overdose deaths in Pennsylvania is not as simple as prosecuting individuals with drug overdose homicide. The Pennsylvania legislature and law enforcement must start to think more critically about how Pennsylvania’s Drug Delivery Resulting in Death law impedes efforts to combat the opioid crisis. What once was thought of as medicine or remedy has revealed itself to be a poison, and Pennsylvania must reverse its course of taking two lives instead of one.