Death by Distribution: What It Means, and Why It's Been Controversial

Jan 17, 2020

A new North Carolina law makes it a felony to sell opioids, cocaine and meth to someone who dies by ingesting them. It’s called Death by Distribution, and anyone indicted under the law could face charges equivalent to first-degree kidnapping, or in the case of repeat offenders, second-degree murder. It’s the latest approach communities in the state are taking to address the opioid crisis.

North Carolina enacted a similar law in 1999 that allowed second-degree murder charges to be leveled against dealers. But to indict a defendant, prosecutors had to prove malice, or intent to harm. That’s no longer the case.

The new law is one of many the state has implemented to combat the opioid crisis. On January 1, the latest provision of the STOP Act went into effect -- meaning doctors prescribing opioid medications now have to consult a statewide database to see if their patient has already filled the prescription somewhere else.

In New Hanover County, programs like the Quick Response Team focus on treatment and intervention. County District Attorney, Ben David, who also serves Pender County -- says all of these tactics together are crucial to combating the epidemic. 

“This is a multifaceted issue. It involves prevention, it involves education. But we need to look at street level dealers and people in lab coats, to say there's a role in stopping this epidemic. I think we can do that legislatively through the STOP Act. I think we're doing that also legislatively through this Death by Distribution.”

North Carolina is one of the top 15 states for most opioid-involved deaths, according to 2017 data from the National Institute on Drug Abuse. 

...

 

It’s been just six weeks since Death by Distribution went into effect. From the beginning, the law has created controversy. There’ve been concerns that it would deter people from calling 911 on overdose victims, and prosecute people with addictions themselves, rather than large-scale dealers. In an interview with WHQR,  Ben David said state lawmakers have listened to the public and have addressed these issues in the final version of the bill. 

“So this law went into effect December 1, 2019, and I know it's only been a month and a half or so. Have there been any cases yet?” 

“Not yet. We don't yet have the numbers and won't for a few more months, to know what effect and impact this new law is having. But what I can say is that I am gravely concerned that anyone is creating the narrative that it's going to prevent people from calling 911 or seeking the help they need in the case of medical emergencies.

I've tried to make it as clear as possible -- and repeat again today -- that we fought hard as prosecutors for the immunity provisions called the Good Samaritan statute, where if someone sees their friend overdosing or if they themselves are experiencing a medical crisis, they can call 911 and cannot be prosecuted for those drugs, including and especially heroin. 

That law was specifically redrafted into this Death by Distribution law to make it clear that that remains in place, and also that users getting high together is not the target of our enforcement. Many states that have Death by Distribution laws -- of which there are 20 -- have the words ‘death by distribution or sale.’ We eliminated the word ‘distribution’ to make it clear that someone handing their friends drugs and doing them themselves is not guilty under Death by Distribution. It's the sellers and traffickers who are the subject of the law. 

So those friends who are getting high together in the motel room should absolutely call 911 with confidence that they will not be prosecuted. Not just in my district, and I'm saying that as their district attorney, but in North Carolina.”

“Do you think there’s any gray area between your high-level seller versus your lower-level distributor?”

“There are gray areas and here's just one very common one. It's what we call the subsistence user, the one that has a bad problem and so clearly needs to support that habit through criminal activity themselves: breaking into other people's cars, selling their own body. Those are common examples. 

Another one is, ‘How about I get a batch of heroin and I break off some from my own use and then sell some to you?’ That's where it gets gray. Are they a dealer now or are they still just an addict getting high with their friends? That's a case where I don't think any prosecutor or police officers should be bullied into a policy position. I think they’re going to need to look at the unique facts of the case.

I think there's probably this conception out there, a misconception, that we are trying to incarcerate our way out of the drug epidemic. Here in North Carolina, that's not the case. In the last seven years, we have reduced the prison population by 10%, we have closed 11 prisons and 4,000 beds, and if you're looking at who's actually getting out, it is the very people we're talking about now struggling in the grips of addiction. 

Their crime might be drug possessions, but it also might be breaking into cars and homes to support that habit. Prostitution, which was historically blaming the victim -- we now blame the pimps and the Johns, as it should be, and we give immunity to the young women primarily who are being exploited. 

If you look at what we're actually keeping our focus on, its violent criminals, career criminals, violent gang members, and of course drug traffickers. The numbers are going down in prison, and it's because we're taking, I think, a 21st-century view of what this drug epidemic is really all about. We should not be blaming addicts, we should not be blaming victims of any type. We need to be blaming defendants.”

“Thank you so much for talking with me today.”

“Thank you so much.”