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A New Rhode Island Law Allows For Life Sentences in Drug Overdoses

Public health advocates are concerned that ‘Kristen’s Law,’ meant to punish drug dealers, will criminalize users and fail to stem the opioid crisis.

The Rhode Island State Senate chamber, where ‘Kristen’s Law’ was enacted in June.Walter Bibikow/Getty

In 2014, 29-year-old Kristen Coutu of Rhode Island was found unresponsive in her car, dead from an overdose after using heroin laced with fentanyl. Aaron Andrade, the man who sold her the drugs, was later indicted for murder by the state attorney general, Peter Kilmartin. Last year he was sentenced to 40 years in prison.

Andrade’s sentencing was nearly unprecedented: only one other person in Rhode Island had ever been charged with murder for an overdose. Kilmartin insisted that Coutu’s case exposed the need to bolster existing laws to address cases where drugs sold to an individual result in death. Governor Gina Raimondo signed “Kristen’s Law” in late June after a tense debate among legislators over drug-induced homicide laws that generated resistance from people who use drugs, overdose-prevention advocates, and the medical community.

The law allows for life sentences for people who are convicted of selling illegal drugs that lead to fatal overdoses. It follows a trend of supply-side sentencing occurring across the country. According to statistics compiled by Vox reporter German Lopez, between 2011 and September 2017 at least sixteen states passed laws tightening criminal penalties for opioids; Rhode Island, however, joins Delaware, Florida, Illinois, Kansas and Pennsylvania in enacting drug-induced homicide laws.  Rhode Island, however, joins Delaware, Florida, Illinois, Kansas, and Pennsylvania in enacting drug-induced homicide laws.

In part due to the (false) perception that only white people are overdose victims, lawmakers around the country are responding to the opioid crisis by crafting bills that go after dealers who “prey” on victims. But these laws end up targeting people who use drugs; journalists such as Slate’s Daniel Denvir and The Appeal’s Joshua Vaughn have reported on Pennsylvania cases where drug users faced homicide charges because they  passed illicit substances to friends who later died.  

Proponents of Kristen’s Law insist that it will not harm people who use drugs, pointing to provisions in the law that only criminalize drug deliveries that exchange drugs “for anything of value.” They say that the legislation ensures that sharing drugs among friends is not criminalized. They also argue that Kristen’s Law enshrines Good Samaritan protections by granting immunity to those who call emergency services for a person experiencing an overdose. Although Governor Raimondo may believe that this legislation is well-intentioned in combating the overdose epidemic and responding to great harm experienced by family members who have lost loved ones in Rhode Island, many public health professionals condemn this law and call for it to be reversed. 

Despite its claim to not target drug users and codification of the Good Samaritan clauses, Kristen’s Law could harm users by providing yet another reason to not call 911 in the event of an overdose. In a 2002 study outlined in the Journal of Addictive Diseases, 75 percent of respondents who witnessed an overdose cited concerns about police involvement as a reason they delayed calling 911. In Vermont, which also has enshrined Good Samaritan Law protections––the state’s health department reported that fewer than 40 percent of people who requested a refill of the life-saving drug naloxone reported calling 911 in the aftermath of an overdose. A Harm Reduction Journal study conducted in Rhode Island in 2015 demonstrated that while most respondents said  they would call 911 in the event of an overdose, fewer than half (45 percent) were aware of the state’s Good Samaritan laws. Even if Good Samaritan laws exist in theory, that does not always mean responding officers will respect that promise in practice.

Many drug users have had negative interactions with the police that foster distrust of law enforcement and by extension, emergency services. Kristen’s Law, then, may make people more afraid to call emergency services; if the police show up, who’s to say they won’t consider a user to be a dealer?

Governor Raimondo says this law will target high-level dealers by “piercing the buffer that high-level dealers establish between themselves and users on the street.” This demonstrates a fundamental misunderstanding of how drug networks work. In a 2009 study from the American Journal of Community Psychology, its authors used agent-based modelling to explore a heroin market during the 1990s. They noted that cartels sat at the top of the market structure, but that a significant portion of activity in more localized markets operated outside “organized” frameworks. They noted that “dealers” and “distributors” were independent business people, and that larger suppliers had little influence on dealing. Using these dealers as pawns to go after kingpins will only subject them to prosecutorial overreach in attempt to get access to information that these low-level dealers may not be privy to.

And some dealers use drugs themselves. According to a Journal of Psychoactive Drugs  study conducted in Vancouver, 17 percent of users admitted to dealing drugs prior to the interviews. They noted while that these were typically low-level dealers, they have the most visible roles in the drug-dealing hierarchy.

Not everyone who provides drugs to people in exchange for money is a dealer; there are many people who may buy drugs on behalf of friends. Lee Hoffer, an anthropologist at Case Western University refers to these individuals as “brokers.” But the vague language in Kristen’s Law criminalizes any sharing of drugs that includes an exchange of goods of any sort, not just money. It could be food, a voucher, or a place to stay for the night.

Treating overdose as a homicide implies that there is intent to kill. It implies that people purposely give others drugs laced with fentanyl they know will lead to death. But according to a 2017 study of illicit opioid users in Rhode Island, published in the International Journal of Drug Policy, many reported that they did not prefer fentanyl and that they often could not identify it in their drugs. Despite this, 50 percent of drug users reported that they were exposed to fentanyl in the past year. This means that many of the people sharing and distributing drugs are unlikely to know that there is fentanyl in their supply.

Criminalization will most likely have a profound racially disparate impact. According to the ACLU of Rhode Island, the state’s Black residents are three times more likely than white residents to be arrested for drug possession. This disparity is reflected in Rhode Island’s prison population. Although Black people make up 8.2 percent of the state population and Hispanic people 15.5 percent (as of 2010), they make up 30 percent and 25.4 percent of the prison population. Following national patterns where Black men in particular get longer sentences than white men, it is likely that this trend could be repeated in Rhode Island.

There are also the adverse health outcomes associated with incarceration. According to a study in the New England Journal of Medicine, for those who have been incarcerated, the risk of death is 12.7 times higher than the general population within two weeks after release, with overdose from illicit drugs as a leading cause. Researchers have found that incarceration strains social support networks, and those recently released are as a result especially vulnerable to relapse and overdose.

Rhode Island has taken positive steps to address the opioid crisis, including the formation of a public health-driven task force to deal with the issue. The state has also championed the expansion of medication-assisted treatment for those with opioid use disorder as well as easy access to life-saving naloxone, and developed timely tracking of progress in ending the epidemic through Prevent Overdose, RI .  However, what Rhode Island law enforcement officials and legislators alike fail to understand is that a public health approach to the opioid crisis cannot include a criminal justice response. Such a carceral response significantly reduces the efficacy of any public health approach, which necessitates the absence of a criminal justice component. Whenever an overdose occurs, it is tragedy that tears at the fabric of our communities, but we must understand that the crisis was caused by decades of failed drug policy, not by drug dealers lurking on a street corner. Instead of enacting punitive and likely to be ineffective legislation like Kristen’s Law, we must seriously pursue decriminalization and harm reduction—both Portugal and Canada have lessons they can teach us in this regard—otherwise we risk exacerbating what is already a dire public health crisis.