NC Bill Would Create New Felony Charges for Dealers Connected to Fatal Overdoses

Expert says it could discourage “good Samaritan” 911 calls during overdoses

By Tristan Dufresne 5/9/19 12:12PM

RALEIGH — A proposed law that, if passed by the North Carolina General Assembly, would give prosecutors license to charge drug dealers with a felony if their product is connected to a fatal overdose, has progressed through the House and Senate, which must reconcile their respective versions to meet today's crossover deadline for legislation.

North Carolina's proposed "death by distribution" law would criminalize giving certain illegal drugs to a person if the recipient dies as the result of ingesting the illicit substance, even if the death is unintentional. Conviction would carry a Class C or Class B2 felony.

North Carolina House Bill 474 passed its first and second reading on Monday, May 6. Its corresponding Senate Bill 375 was referred to the Committee on Rules and Operations the same day. Both the House and Senate version of the bill were identical when filed in March, and have gone through independent changes as they moved through committee of their respective chambers.

"The General Assembly recognizes that deaths due to the opioid epidemic are devastating families and communities across North Carolina. The General Assembly finds that the opioid crisis is overwhelming medical providers engaged in the lawful distribution of controlled substances and is straining prevention and treatment efforts," reads the text in both versions of the bill.

Other crimes classified as Class C and Class B2 felonies, as the "death by distribution" would be, include second-degree murder and kidnapping, which can land an offender in prison for 3.5 to 32 years.

As the Senate bill stands, the new crime "death by distribution of certain controlled substances" would be a Class C felony, carrying 44 to 182 months imprisonment (3.6 to 15.1 years). "Aggravated death by distribution of certain controlled substances" would be a Class B2 felony, carrying 94 to 393 months (7.8 to 32.75 years). The factor making a death "aggravated" would be whether the distributor was convicted of possessing or distributing certain controlled substances in the last seven years, excepting time spent incarcerated.



"A person is guilty of death by distribution of certain controlled substances if all of the following requirements are met," the current version of the house bill reads. "[If] the person unlawfully sells, or delivers as part of a sale, at least one certain controlled substance to the victim; the ingestion of the certain controlled substance or substances causes the death of the user; [and] the commission of the offense...was the proximate cause of the victim's death."

The two versions will go through a "reconciliation" process to unify amendments and differences in each chamber's versions of the bill, and if concurrence is reached, the bill will be "enrolled" and sent to the desk of Gov. Roy Cooper.

The district attorney who oversees New Hanover and Pender Counties, Ben David, testified before the Senate Judiciary Committee on Tuesday, April 10 and said that the bill is necessary in the fight against the national opioid crisis, as current law requires prosecutors to prove malice aforethought (criminal intent to do great harm) when seeking high-level felony convictions. David told the committee that juries to do not adequately understand terms like "malice" and "second-degree murder."

"There are still people who blame the victims," David said. "Death by distribution is something that needs to be punished... We need to have tougher penalties for those who are profiting by selling poison in our community."

There were several experts at the House judiciary committee meeting speaking in opposition to the bill. Tessie Castillo, an advocate working with the NC Harm Reduction Coalition, told the senators, "We have evidence from other states that have already passed [death by distribution] bills that shows the majority of the people prosecuted under death by distribution laws have been friends and family members who were addicted themselves and shared with other people," as opposed to dealers further up the supply chain.

Castillo's testimony illustrated how such a bill could conflict with standing "good Samaritan" laws that protect individuals from drug-related prosecution when they call 911 in order to prevent an overdose situation from resulting in a fatality, at least when a "good Samaritan" provides the drug. Castillo insists a provider is "usually the person who calls. Almost everyone gets their drugs from a family member or friend; it would be extremely rare for someone to get it from a high-level drug dealer."

The loved ones of people in the throes of addiction, as well as healthcare professionals, worry that witnesses to an overdose event will be less likely to seek emergency services if a sentence is looming over them.

Both bills were changed in April to say that the immunities provided by the Good Samaritan Law will apply under the death-by-distribution law, but Castillo and other advocates, speaking May 6, clearly did not think that was sufficient. "The people who are in these situations are unlikely to know that there's an exception in this law for them," said Castillo.

Castillo also warned, "States that have pursued this law most aggressively have some of the highest overdose rates in the country... The law has done nothing to lower the overdose rate." For example, "Pennsylvania is the most aggressive state and they are number three nationally in number of overdoses."

A ranking Triangle-based law enforcement officer who asked not to be named said that the proposed law is unlikely to be an effective deterrent, and that "generally speaking, the people engaged in the sale of those drugs are already making a number of bad decisions… [The new law] may make them more likely to resist and run or carry out acts of violence towards informants.

"They probably have more luck if they soften the penalties for selling small amounts of drugs like heroin," the officer added. Using X to represent a small amount and Z a larger amount, the officer explained, "If a dealer knew he could sell somebody X quantity of heroin and only get six months for it, [he or she] is much less likely to risk selling Z quantity of the drugs if it's seven years or a murder charge if they overdose."





Correction: In the first version of this article published, which committee meeting took place May 6 was not clarified. It was the House Judiciary Committee.