Drug Induced Homicide Defense Toolkit
was historically cheap, on the order of $80 per pill versus $8 per bag. And then synthetic fentanyl and its analogs began hitting the market—which was itself a response to the economics of supply-side enforcement—and poisoning the supply.311 F. The questionable strict liability approach DIH enforcement legally transforms accidents involving possibly risky behavior into homicide. While the strict liability approach may make sense in civil law contexts involving regulating things that are always inherently dangerous (such as toxic pollution or the use of explosives), deploying harsh criminal penalties in retribution for unintended consequences connected to behavior that is intentional and assumes its own risk raises normative and constitutional questions.312 In many ways, DIH is like felony murder, and there is a nearly unanimous scholarly consensus that felony murder and analogous strict liability provisions are both bad law and counterproductive criminal justice policy.313 The
311
See Leo Beletsky & Corey Davis, Today's Fentanyl Crisis: Prohibition's Iron Law, Revisited, 46 Int'l J. of Drug Policy 156 (2017), https://www.ncbi.nlm.nih.gov/pubmed/28735773. 312
See generally Kaitlin S. Phillips, From Overdose to Crime Scene: The Incompatibility of Drug-Induced Homicide Statutes with Due Process, 70 Duke L.J. 659-704 (2020), https://scholarship.law.duke.edu/dlj/vol70/iss3/4. 313
Guyora Binder, The Culpability of Felony Murder, 83 Notre Dame L. Rev. 965, 966 (2008) (providing a comprehensive overview of the empirical and doctrinal scholarship on felony murder).
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