Baker opens a legal can of worms

GOV. CHARLIE BAKER filed new legislation last month to battle the opioid crisis. His bill proposes some “important updates” to our arsenal of weapons in this fight, one of which, he says, would add a measure of “accountability” to the current strategy of treatment, education, and prevention. Specifically, the governor intends to “ensure that those who cause our citizens the most harm by illegally selling drugs that kill people are held accountable for their actions.”

Holding people accountable for their actions, in this context, means making any person who distributes illegal drugs strictly liable for the death of anyone who dies as a result of taking them. Criminal intent — or the absence of it — would be irrelevant. That the person who died voluntarily ingested the drugs would be irrelevant. A conviction would carry a minimum sentence of five years in prison and a maximum sentence of life.

Strict liability in drug cases is not a new idea, although it’s new to Massachusetts. Congress embraced it as one (relatively small) part of the War on Drugs legislation in the 1980s. (The federal strict liability law, which has been on the books since 1986, is informally known as the “Len Bias law,” named for the University of Maryland basketball star and Celtics draft pick who died from a cocaine overdose just after a celebratory trip to Boston and whose death sparked a nationwide paroxysm about cocaine.) Some state legislatures followed suit. New Jersey, for example, enacted a strict liability law in 1987 that’s nearly identical to the bill Baker has proposed.

Although these strict liability laws have been on the books for three decades, until recently prosecutors used them only occasionally. The elements of the crime don’t lend themselves to easy proof — it can be hard to trace the drugs involved and it can be hard to get reliable testimony about an overdose when the prime witness is deceased.

Then three years ago New Jersey’s attorney general, understandably alarmed about the heroin epidemic in that state, began affirmatively encouraging investigators in drug cases to make full use of the strict liability law, and since then, more arrests and prosecutions under the law have been taking place in that state. It’s too soon to determine whether the heightened enforcement means that fewer people are dying from overdoses in New Jersey than would otherwise be the case — in any event, the death rate in that state continues to grow. But Gov. Baker is counting on that result here in Massachusetts.

In the message that accompanies the text of his bill, the governor says — twice — that the persons who would face prosecution under the law are those who “sell” drugs. Certainly those who sell drugs are the intended targets, but the bill itself applies to persons who “distribute” drugs, a considerably more expansive term, just as “receive” is a more expansive term than “purchase.” A monetary exchange is not required to establish distribution. Giving drugs away can suffice, so the law would apply in social settings as well as commercial ones.

If New Jersey’s experience is a guide, we can expect a strict liability law to lead to considerable litigation about drug consumption in social settings. Was this a case involving the “distribution” of drugs, or merely their “joint possession,” a lesser offense that does not trigger prosecution under the law?

We can also expect a strict liability law to present conflicts between two of the parts of the governor’s opioid strategy — the goal of accountability and the goal of treatment.

Consider this scenario. A group of friends at a party comes into possession of some drugs and they take them together. Shortly afterward, one of the friends loses consciousness and appears to need immediate medical attention. How does the group respond?

They might call 911 immediately, perhaps feeling somewhat assured that the state’s Good Samaritan law will protect them from being prosecuted for drug possession if they seek help.

But what if there were also another law — a strict liability law that reflected a new state interest in accountability? In that case, whether the friend lived or died would have great legal as well as moral import: If the friend died, authorities could bring manslaughter charges against those who had distributed the drug (the Good Samaritan law is protection from a charge of possession, but not from a charge of distribution).

Would the group behave differently? Would some members leave immediately, frightened of becoming entangled in the law? Would others pause to contemplate the likelihood of prosecution (not to mention the severe consequences of conviction) and to consider alternatives before calling 911?

One of the many things to keep in mind as the Legislature reviews the governor’s proposal: In situations where every second counts, it’s not hard to imagine how a strict liability law intended to prevent overdose deaths could unintentionally cause them.

Margaret Monsell is an attorney at the Massachusetts Law Reform Institute, a statewide non-profit poverty law and policy center.