As the opioid epidemic ravages the United States, federal and state legislators continue to seek various ways to mitigate the crisis. Though public health advocates have successfully pushed for harm-reduction initiatives, a contrasting punitive response has emerged. Across the country, prosecutors and legislators are turning to drug-induced homicide (“DIH”) statutes as a law-and-order response to the crisis. DIH statutes, which can carry sentences as severe as life in prison, impose criminal liability on anyone who provided drugs that led to a fatal overdose. Though DIH laws are often justified as tools to target large-scale drug distributors, in reality, they more often target friends or family of the deceased. Troublingly, despite the foundational criminal law principle that intent is required to impose culpability, DIH laws are strict liability offenses, requiring no intent toward the resulting death.
Examining the development of strict liability offenses in the American legal system, this Note asserts that criminal intent—mens rea—is an indispensable due process protection in homicide law. It argues that DIH laws, though not facially unconstitutional, are functionally anti-constitutional—inconsistent with the spirit, if not the letter, of due process. This Note is the first to reconcile DIH statutes with the broader context of strict liability criminal jurisprudence, contending that these laws impose punishment far in excess of the culpability they require. Accordingly, it calls upon state legislatures to repeal or amend these laws, offering various frameworks to better align DIH statutes with the protections required for criminal defendants.
Kaitlin S. Phillips, From Overdose to Crime Scene: The Incompatibility of Drug-Induced Homicide Statutes with Due Process, 70 Duke L.J. 659-704 (2020)
Available at: https://scholarship.law.duke.edu/dlj/vol70/iss3/4