How should overdose deaths factor into any sentencing of the "offense" of drug distribution?

CLASS LOGISTICS REMINDER:  On Nov 3, we will have an election day optional on-line Zoom class; I'll be on Zoom at the usual time for an unstructured discussion of how the 2020 election could impact sentencing matters (some noted here); on Nov 5, we will have an in-person regular class (perhaps about election results and) finishing up discussion of "the crime" at sentencing.  The materials below will help inform some of that discussion.

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I briefly mentioned the modern rise in so-called "drug-induced-homicide" (DIH) prosecutions when quickly overviewing the challenges of figuring out the "offense" for purposes of sentencing.  I referenced the work of the Heath in Justice Action Lab at Northeastern University School of Law, which has created this great resource about these prosecutions describing the issue and some of its data analysis:

Under pressure to respond to the nation’s fatal overdose crisis, prosecutors are increasingly treating accidental overdose deaths as homicides. 

We compiled news reports of “drug-induced homicide” (DIH) prosecutions nationwide, using big data analytics tools.  In contrast to the stated intent to target major drug traffickers, our preliminary analysis found that a majority of prosecutions are being brought against individuals who do not fit the characterization of a “dealer” at all, such as friends, family, and co-users of the overdose decedent.

In cases that do involve organized drug distribution, the defendants are typically low-level dealers, with a disproportionate number of charges being brought in cases where the victim is white and the dealer is a person of color.  Racial bias is also evident in the gaping disparity of the sentences being handed down to DIH defendants of color: a median of nearly nine years, contrasted to five years for whites.  

These disconcerting data do not even highlight how where a drug defendant is prosecuted can matter more than whether a defendant actually faces a formal homicide charge.  For example, under Ohio law, the maximum state prison sentence an Ohio defendant can face for involuntary manslaughter is 16.5 years, but that same defendant can be looking at a mandatory minimum federal prison sentence of 20 years or even LWOP if "death or serious bodily injury results from" a distributed drug under 18 USC § 841(b)(1)(A)–(C). 

Whether prosecuted in state court or federal court, a defendant facing homicide charges or a specific mandatory minimum sentence based on the fact of a resulting death can hope a prosecutor will not be able to prove to a jury beyond a reasonable doubt that there is a sufficient causal link between a distribution offense and an overdose death.  But even if an overdose death is not raised or proven by prosecutors prior to sentencing, it is common for prosecutors to discuss alleged community harms caused by a drug defendant's distribution activities and judges can also hear from families of overdose victims at sentencing. 

Should any associated harms to drug users and their family members be relevant when a judge exercises sentencing discretion in a drug distribution case regardless of whether formal charges are brought concerning overdose deaths?  Shouldn't sentencing judges reasonably view dealing drugs like fentanyl that are more likely to result in accidental overdoses as more serious than dealing, say, marijuana or cocaine or even prescription opioids?

As I also briefly mentioned in class, I was part of a group of law professors that late last year asked the Ohio Criminal Sentencing Commission (OCSC) to conduct "a public examination of the use of homicide charges in accidental overdose cases throughout the state
and their impact on public safety and the opioid crisis."  You might find the letter we sent to OCSC and the written response it generated from Ohio Prosecuting Attorneys Association of interest:

Open Letter to the Ohio Criminal Sentencing Commission

Letter from Ohio Prosecuting Attorneys Association

Response to letter from Ohio Prosecuting Attorneys Association

 

Some (of many) older posts on this topic from my main blog:

• "America’s Favorite Antidote: Drug-Induced Homicide in the Age of the Overdose Crisis"
• "An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane" 
• Noticing how federal drug laws, rather than state homicide laws, are used to severely punish drug distribution resulting in death 
• "Heroin, Murder, and the New Front in the War on Drugs"
• "An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane"