It was exactly the kind of tragedy you’d expect a “Good Samaritan” overdose law to address.
Last July, Shane Ward overdosed on heroin and other drugs after getting high in a van with three friends. When he passed out, his friends acted quickly: One of them, 21-year-old Devan Miller, got behind the wheel and took off, calling 911. She was told to pull over, which she did, instructing another friend to perform CPR on Ward while they awaited an ambulance. When help arrived, Ward was taken to a nearby hospital, and probably owes Miller his life.
But her altruism got Miller arrested, not praised.
Rather than being offered amnesty from low-level drug charges for doing the right thing—as Illinois’s Good Samaritan law suggests—Miller was handcuffed and taken in for questioning. She was charged with “aggravated battery” under the apparent contention (which she and her lawyer dispute) that she helped Ward inject himself.
Miller was also charged with driving with a revoked license, drug possession, and drug delivery—even though she had no drugs on her when she was arrested. And she remains in jail some eight months later because her family cannot afford to post the $7,500 required to secure bond.
She isn’t alone, ether.
Kathleen Kane Willis, director of the Illinois Consortium on Drug Policy at Roosevelt University, has documented at least three such prosecutions in rural counties in the state in recent years. These cases have supporters of Good Samaritan laws, which are supposed to protect people like Miller in the name of public health, thinking it’s the 1980s all over again.
“It obviously acts at complete cross purposes to Good Samaritan legislation, in both spirit and letter,” argues Leo Beletsky, associate professor of law and health science at Northeastern University. He sees a pattern across the country of enforcement that undermines Good Samaritan laws.
“It means basically that Good Samaritan laws are null and void,” Willis adds.
The desire on the part of cops and prosecutors across America to show that they’re cracking down on heroin is increasingly coming into direct conflict with initiatives to prevent overdose deaths. Call it Good Samaritans v. Drug Warriors. Spurred by the activism of grieving parents whose children were abandoned after overdose, dozens of states now have Good Samaritan laws, which are well-grounded in research showing that the most common reason people don’t seek medical attention in these situations is fear of arrest. Since we know that most overdoses are witnessed, immunizing witnesses from prosecution should reduce this fear and save lives.
Unfortunately, these laws aren’t all that well publicized—and now they’re being threatened in a sort of twisted coda to the fading war on drugs.
In fact, most states have “drug delivery” laws that allow prosecution of dealers for murder if it can be proven that someone overdosed on a product they sold. Federal law also allows lengthier sentences for dealers linked with such deaths. And in some states, like Illinois, people who try to help other drug users can get prosecuted for crimes like battery instead of murder if the victim survives the overdose.
The majority of these laws were passed in the 1980s, following widespread outrage over the coke-related death of college basketball star Len Bias. But Illinois, Kansas, and Pennsylvania passed their laws between 2011 and 2012—during the current opioid crisis—and politicians around America continue to propose new versions.
Such laws are a terrible mistake. It would be one thing if they were only applied to high-level dealers. But overwhelmingly, the people being picked up for “drug-induced homicide” or “aggravated battery” associated with overdose are those like Miller, who are struggling with addictions.
Nearly all of these prosecutions involve people who were in the room when the victim died; almost never does such a situation involve a kingpin, because they don’t tend to sit around shooting up in vans. And I can tell you from personal experience that it’s almost impossible to have a heroin problem without having “sold” or “delivered” the stuff at some point. That distinction, any given time, tends to be between the person who knows where to score that day and the one who doesn’t.
Of course, many anguished parents of overdose victims want to punish someone for the loss of their children’s lives—and prosecutors seem to take up these cases with an eye to getting justice for these families and making dealers think twice because they could face the long sentences associated with homicide.
“Although many prosecutors support Good Samaritan laws, there is a real conflict when someone actually recklessly caused death of another person and then panics and calls 911,” says Josh Marquis, who has been the district attorney for Clatsop County, Oregon, since 1994, and is a spokesperson for the National District Attorney’s Association. He adds, “There is a weighing test you have to go through, and you can’t simply grant blanket amnesty for anyone who knowingly provides a highly toxic substance, which then, in turn, kills people.”
Tamara Olt, an Illinois obstetrician and gynecologist who lost her son Josh to overdose at 16, once supported prosecuting such cases. In her rage and grief over losing a child so young, she wanted anyone with any responsibility for what happened to pay. “Initially, I wanted everybody prosecuted,” she tells me, adding that prosecutors began pursuing drug-induced homicide charges in her son’s case.
However, the police first went after the wrong dealer—and as she mourned, Olt began to see the situation very differently. She got involved with a support group for parents who had also lost children to overdose, known as GRASP, for Grief Recovery After a Substance Passing. Talking with other moms, she realized that it was only chance that her Josh was the one who had died, rather than being the one who faced homicide charges. “I’ve forgiven everyone associated with his death, including him and myself,” she says.
In order to help others, she started the JOLT foundation in memory of her son—and she works to promote harm-reduction practices, like distributing the overdose antidote Naloxone, and Good Samaritan laws. She’s even put up billboards to tell users that they will be safe from arrest if they help their friends. That’s why, when she heard about Miller’s case, she was outraged and went so far as to donate $1,500 to her legal defense.
Miller’s lawyer, Terry Slaw, adds, “Based on the fact that my client made the call and that brought the police on the scene, she should immune from prosecution—yet she’s charged with three very serious crimes.”
The prosecutor in Miller’s case is Jonathan Wright, the state’s attorney for Logan County. He told the local paper, the Courier, that he could not comment the case. But Marquis, who’s been prosecuting drug cases for years in an Oregon community with plenty of experience in heroin overdoses, says choosing to charge a low-level user in a situation like Miller’s “seems like an odd prosecutorial decision.”
“You don’t want to discourage people from calling for help,” he says.
As I see it, we’ve already tried a bunch of ways to discourage drug dealing through the criminal justice system with little success. How is it different if a dealer faces 15 years to life simply for selling drugs, versus facing the same kind of time because someone overdoses? Why would fear of a long sentence for drug-induced homicide prove more potent than that of a long sentence for simple drug dealing? And is the terror of doing extra time in prison for helping your friends get drugs really a deterrent if you aren’t too worried about dying of overdose yourself?
This is one of many examples of how unchecked the power of prosecutors is—and another reason why we need to thoroughly revise our drug laws. Decriminalizing low-level possession would be a good start, and would help prevent users from being prosecuted as dealers. But we also need to recognize that the way we handle dealers isn’t working, either.
Saving lives has to come first—it’s absurd to turn a tragedy for one family into a tragedy for two by prosecuting the addicted survivor and tearing them away from their loved ones. It’s time to reward people who save lives rather than try, in vain, to scare them out of addiction.
By Maia Szalavitz