In response to the overdose crisis that has consumed Colorado, largely attributable to illicitly manufactured fentanyl, some lawmakers are turning toward “supply side” interventions that they believe will curb overdose deaths. One such piece of legislation is Senate Bill 23-109, “Concerning a criminal penalty for the supplier when a person dies as a result of the use of a controlled substance.”
This type of bill is colloquially known as a “drug-induced homicide” law. For several reasons, ranging from practical to fiscal, drug-induced homicide laws like SB 23-109 are not the right approach to addressing the overdose crisis here in Colorado.
In general, drug-induced homicide laws criminalize the delivery of illicit drugs that results in a fatal overdose. According to the Prescription Drug Abuse Policy System, 25 states had some sort of drug-induced homicide law on the books as of 2018. In many states, such as Rhode Island, the drug-induced homicide law provides up to life imprisonment for anyone who sells, delivers, or distributes a drug that leads to a fatal overdose.
Colorado is one of the states with a drug-induced homicide law. It applies, however, only to unlawful distribution, dispensation, or sale of a controlled substance that results in death to a person under 18 years of age. The bill now under consideration would eliminate the age provision.
Why, then, are drug-induced homicide laws not right for Colorado?
First, they don’t work. As lawmakers attempt to curb the overdose crisis, many are crafting policy around evidence-based approaches like expansion of medications for opioid use disorder, Good Samaritan Laws, and increased access to harm reduction — all of which reduce overdose deaths.
There is, however, no evidence that drug-induced homicide laws decrease overdose. In fact, one study among people who were incarcerated with opioid use disorder found that it was neither an effective response to altering the drug supply nor would it alter their own use of drugs. Several other studies have demonstrated how punitive policies such as this one add to health problems beyond overdose, including increases in HIV, hepatitis C, and severe skin infections.
Second, they might actually have the opposite intended effect. Again, the intent of this law is a good one: to deter sellers, limit the amount of fentanyl on the street, and reduce overdose. The truth is, however, that drug-induced homicide laws (especially as this one is written) reduce the likelihood that someone might call 911 in the event of an overdose, due to fear of arrest. If a bystander is not equipped with naloxone and is too afraid to call 911 because they mixed the drugs that led to the overdose, then the potentially non-fatal overdose turns into a fatal one.
Additionally, these laws end up criminalizing “low-level” sellers at the bottom of the distribution network, not “kingpins” and “drug lords.” It won’t help “disrupt the network” as we often hear. Supply side interventions rarely do. It will just further criminalize people with substance use disorders.
Which gets us to the third point: this law could cost the state billions of dollars. Because one goal of this drug-induced homicide is to disrupt the drug supply, the law will naturally lead to increases in incarceration. The Colorado Department of Corrections’ budget is already exceeding $1 billion annually, and this law will surely require additional taxpayer dollars.
Let’s assume that half one of the 1,492 overdose deaths in Colorado in 2020 was the result of someone sharing drugs or drug paraphernalia — not an unreasonable assumption. Then let’s assume that each person who shares drugs is charged and imprisoned for an average of 50 years – the equivalent of a life sentence for a 25-year-old – at a 2015 cost of $39,303 per year.
Based on these assumptions, this law will end up costing Colorado taxpayers at least $1.45 billion (in today’s dollars) over the next 50 years. Or in political terms, it will cost Coloradans $117 million during Gov. Jared Polis’ second term. Even if only 15 people are charged and incarcerated for 4 years, it will cost us $2.4 million additional dollars.
Personally, I can think of better ways to spend those dollars than on incarcerating people who use drugs. For example, $2.3 million would fund methadone treatment for 500 Coloradans for one year and $117 million would fund methadone treatment for 5,000 Coloradans for 5 years. I assume Gov. Polis can think of better ways to spend that money, too.
As a provider on the frontlines of the overdose epidemic, I am grateful to the legislators who are working hard to help us by crafting policies to curb these deaths. We need evidence-based solutions now more than ever if we are to make headway in this crisis. We need policymakers focused on solutions that are proven to work and on ones that don’t break the bank.
Drug-induced homicide laws are not an evidence-based tool, nor a fiscally responsible one, that Coloradans need in our toolbox.
Joshua Barocas, M.D., of Denver, is an associate professor of medicine at the University of Colorado School of Medicine. He is an addiction researcher and infectious diseases physician who treats people with substance use disorders.