HB 309: First-Degree Felony for Drug Distributors that Lead to Death
This bill passed the House with a vote of 45-23 but failed with a vote of 11-12 in the Senate.
In an effort to crack down on drug distribution, and specifically the alarming rise in opiate overdose fatalities, many states have begun imposing heavy penalties on those who distribute the drugs to the person who overdoses and dies.
Representative Steve Eliason is sponsoring House Bill 309 to do the same in Utah, making it a first degree felony—on par with murder—to “knowingly and unlawfully distribute a drug to another individual… that is used by the other individual and causes the death of the other individual.”
It’s no surprise that the bill exempts physicians who prescribe drugs that lead to the person’s overdose—despite the fact that 40% of all opioid overdose deaths in the country involve a prescription. The bill therefore focuses on illicit substances, which are often sold and used by those whose addiction actually started due to legal prescription drugs.
The primary problem with HB 309 is that it eliminates an intent requirement in the law; a drug dealer can and will be charged with a first degree felony whether or not they intended for the other person to overdose and die. Supplying a person with a drug does not cause that person’s overdose and death, just as a firearm dealer should not be held liable for a person accidentally or intentionally using an illegal automatic machine gun to end their own life.
The point is intent—mens rea. A person who supplies an item to another cannot be held responsible for what that person does with the item—even if the item is inherently dangerous or outlawed. While slapping a drug dealer with such a strong penalty may be politically popular and socially desirable as a feel-good measure, there is no data to indicate that this is an evidence-based deterrent that will lead to fewer drug overdose fatalities. Rather, it simply adds to the increasing over-criminalization of society in a misguided effort to continue the war on drugs, hoping that more punitive law enforcement measures will address what is really a public health problem.
Further, prosecutors may charge the wrong person; if multiple substances are found in a person’s body after an overdose fatality, how is a prosecutor able to know which drug caused the fatality, and from what source the drug was obtained? How can it be proven that the dealer sold the exact drug that caused the death?
Two decades ago, the Utah Legislature enacted the Drug Dealer’s Liability Act, allowing individuals to file a civil suit against a drug dealer who was selling in their community. This related effort to punish drug dealers in an effort to resolve the underlying issues affecting drug use in Utah is constitutionally dubious, in that it violates due process by not requiring that the defendant actually be shown to have given drugs to the victim; only information about selling in the same area at the same time is necessary.
We argue that HB 309 is similarly on shaky legal ground by allowing for such an alarmingly high punishment for individuals guilty of distributing a controlled substance, regardless of their intent or knowledge dealing with the other person’s actions pertaining to the drug.