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Are drug dealers guilty of homicide for the deaths of their customers? The answer is a resounding “maybe.” See Lofthouse v. Commonwealth, 13 S.W.3d 236, 243 (Ky. 2000) (Stumbo, J. concurrence). Jurisdictions are divided as to whether a defendant who provides a controlled substance such as heroin or cocaine to a buyer is guilty of homicide if the purchaser voluntarily ingests the drug and then dies of an overdose or physical reaction. In many jurisdictions, a defendant is not guilty of manslaughter or negligent homicide in this situation. However, in other states, a defendant can be guilty of murder when such a death occurs. Differing liabilities of those who deliver drugs Although all jurisdictions bar the illegal sale of drugs, being charged with homicide is fundamentally different than being charged with narcotics violations. Therefore, it is important to know whether the law of the jurisdiction holds deliverers of drugs, whether dealer or friend, responsible for the deaths that their illegal substances cause. The situation in State v. Ervin, 577 A.2d 1273 (N.J. App. Div. 1990) is a fairly typical case. Joseph Ervin procured some cocaine to share with his girlfriend. After she tried it, the girlfriend died. Predictably, Ervin was charged with possessing and distributing cocaine. However, he was also charged with causing a drug-induced death and manslaughter. Under New Jersey law, any person who illegally distributes or dispenses an illegal drug “is strictly liable for a death which results from the injection, inhalation or ingestion of that substance.” N.J. Stat. Ann. � 2C:35-9 (2005). Ervin contested the law as unconstitutional because it violates due process and imposes cruel and unusual punishment. He claimed that he did not kill his girlfriend; she voluntarily took the drugs that killed her. Based upon its reading of the state law, however, the New Jersey appellate court rejected Ervin’s claim. Borrowing from the model of felony-murder laws, the court held that Ervin was strictly liable for his girlfriend’s death. Distributing cocaine is an inherently dangerous activity and it is not irrational for the state Legislature to hold the defendant responsible for all the consequences of his acts. The court held that the causation limitations inherent in the doctrine provided sufficient protection for the defendant. Under New Jersey law, a defendant is only guilty of a drug-induced homicide if “the death was not: (a) too remote in its occurrence as to have a just bearing on the defendant’s liability; or (b) too dependent upon conduct of another person which was unrelated to the injection, inhalation or ingestion of the substance or its effect as to have a just bearing on the defendant’s liability.” N.J. Stat. Ann. � 2C:35-9 (2005). Accordingly, although the mere fact that a victim voluntarily ingests drugs does not negate a defendant’s responsibility, that liability can be defeated if a third party intervenes and becomes responsible for the death. The judgment that a drug dealer is also a killer reflects a growing attitude that dispensing illegal drugs “pose[s] a serious and pervasive threat to the health, safety and welfare of . . . citizens.” N.J. Stat. Ann. � 2C:35-1.1b. Drugs kill and those who dispense them commit homicide. As an added tool to stop narcotics use and distribution, prosecutors can target distributors for homicide prosecutions. Many other states follow the New Jersey approach. For example, in Florida, a defendant may be guilty of causing the death of a victim who has injected heroin even if the defendant is not present at the time of the actual injection. See Martin v. State, 377 So. 2d 706 (Fla. 1979). In Martin, the deceased gave money to a fellow junkie to buy some heroin. The junkie bought it from Martin and brought it back to the victim, who injected it and died. Martin never had any contact with the victim. Nonetheless, under the state’s first-degree felony-murder statute, Martin was guilty of murder. As in other cases, the court held that it was irrelevant that the person killed was a voluntary participant in the distribution of heroin. “Felony murder liability for distribution of heroin causing death is not inapplicable simply because the victim obtained, possessed and used the heroin voluntarily.” Id. at 708. See also Heacock v. Commonwealth, 323 S.E.2d 90 (Va. 1984). Yet felony murder may be inapplicable in a jurisdiction that determines that distributing drugs is not a sufficiently inherently dangerous felony. For example, in People v. Patterson, 778 P.2d 549 (Calif. 1989), the court questioned whether furnishing cocaine, at least when viewing the crime in the abstract, would satisfy that requirement. Noting the “tragic effects that the abuse of illegal drugs, particularly ‘crack’ cocaine, has on our society[,]” the court nonetheless suggested that the felony of narcotics distribution was insufficiently dangerous to constitute an inherently dangerous felony. Patterson, 778 P.2d at 558. Other states do not use felony murder to convict drug distributors of homicide, but instead rely on the related crime of manslaughter when a defendant has provided illegal drugs to a victim who voluntarily uses them and dies. In State v. Wassil, 658 A.2d 548 (Conn. 1995), the defendant was charged with manslaughter for his role in delivering heroin to a victim who subsequently injected it and died. At a heroin party, Wassil prepared a bag of heroin and injected himself, commenting that it was “very, very good.” Prosecutors claimed that Wassil’s remarks indicated that he knew the drugs were extremely potent. Wassil then gave another bag of heroin to his friend, David Groleau, who injected the heroin into his own arm. Fifteen seconds later, Groleau, who was 30 to 40 pounds heavier than Wassil, collapsed on the floor. Wassil did what he could to resuscitate Groleau, including attempting to wake him by walking him around and placing him in a cold shower. He also tried twice to call 911, but another junkie kept hanging up the phone. Eventually, Groleau stopped breathing, lost consciousness and died. Wassil contested whether he was truly the cause of Groleau’s death. Rather, he claimed that Groleau’s actions were an intervening cause. He voluntarily chose to use the drugs and jeopardize his own safety. The court found Wassil’s argument unpersuasive. Neither the victim’s acts, nor those of the other junkie in impeding the rescue efforts, broke the chain of causation. Even if Wassil did not himself administer the drugs to Groleau, he was still guilty of manslaughter because he delivered them and was the proximate cause of the victim’s death. Thus, if a jury finds that the defendant’s actions were sufficiently related to the death that occurred, the law of causation will support that verdict. A majority of the courts that have considered this question reject the claim that a victim’s self-administration of a narcotic is a superseding, intervening act. See, e.g., Commonwealth v. Catalina, 556 N.E.2d 973, 979-80 (Mass. 1990); People v. Taylor, 89 Cal. Rptr. 697, 702 (Calif. Ct. App. 1970); Ureta v. Superior Court, 18 Cal. Rptr. 873, 876 (Calif. Ct. App. 1962). However, prosecutors run into difficulty when they cannot rely upon the felony-murder doctrine or a statute that imposes automatic liability for the death. Courts are reluctant to find the necessary element of malice just because a defendant provides a narcotic. See Commonwealth v. Bowden, 309 A.2d 714, 718 (Pa. 1973). Drug use is prevalent. “Unfortunately, there are thousands of individuals who use or abuse heroin daily.” Id. If a victim does not use an amount of narcotics that alerts the defendant to the fact that the victim’s life may be at risk, there may be insufficient evidence of malice apart from a felony-murder theory. For example, in Lofthouse v. Commonwealth, 13 S.W.3d 236 (Ky. 2000), the defendant used the same amount of cocaine as the victim and had no reason to believe that the cocaine would kill his acquaintance. The mere fact that Lofthouse provided the cocaine was insufficient to convict him of reckless homicide. Similarly, in State v. Pinckney, 328 N.Y.S.2d 550 (N.Y. App. Div. 1972), the New York court held that there were no provisions in the New York Penal Code making death resulting from narcotics distribution a homicide. While decrying the “base evil done by peddlers of narcotic drugs,” the court was not willing to stretch the statutory sanctions applicable to criminally negligent homicide to those who sell narcotics to a knowing and willing user. Scope of culpability in legislatures’ court Ultimately, it is up to state legislatures to enact statutes which hold that providing narcotics may trigger culpability for a resulting homicide. In general, criminal law does not blame victims for the terrible things that happen to them. Therefore, there is a natural tendency to fix blame on a survivor who was involved in the misconduct. Regardless of the victim’s hand in his own death, the survivor remains blameworthy. Moreover, although tort law has doctrines that assess the relative culpability of parties, criminal law does not work this way. The only persons left to prosecute are the drug distributors. Those persons are already in a morally compromised position since their actions have had a part in the death of another human being. Accordingly, courts continue to hold them responsible for the poisonous effects of their trade. Most of the time, drug dealers may be deemed killers, regardless of whether they find an eager recipient. Not only must buyers beware, but sellers as well. Without ever intending to do so, drug dealers may become killers in one pass of the tablet. Laurie L. Levenson is a professor of law and William M. Rains Fellow at Loyola Law School, Los Angeles. She can be reached at [email protected].

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