Drug Induced Homicide Defense Toolkit
possession.206 The majority’s non-precedential opinion applying this logic explicitly calls attention to negative downstream consequences raised in the amicus curiae brief we filed in the case. The government would have us believe that if two drug addicts jointly and simultaneously purchase methamphetamine and return home to smoke it together, a “distribution” has occurred each time the addicts pass the pipe back and forth to each other. Such an interpretation diverts punishment from traffickers to addicts, who contribute to the drug trade only as end users and who already suffer disproportionally from its dangerous effects. Indeed, the threat of harsh penalties in any joint-use situation could jeopardize addicts’ safety even more by deterring them from using together specifically so that one can intervene if another overdoses. Moreover, given the prevalence of shared drug use, a too-broad construction of “transfer” risks arbitrary enforcement.207 V. SENTENCING AND MITIGATION At the federal level, DIH is written into law by way of a sentencing enhancement for drug delivery resulting in death or serious bodily injury.208 Even though it is a sentencing enhancement, it is considered an element of the offense and must be alleged in the indictment.209 The sentences are quite severe—often mandatory life terms—but
206
U.S. v. Semler, No. 19-2319 (3rd. Cir, June 1, 2021).
207
Semler at 11.
208
21 U.S.C. §§ 841(b), § 960(b).
209
See Andrea Harris & Lisa Lorish, Litigation Strategies In Opioid Overdose Cases, Federal Criminal Practice Seminar – Spring 2018 (April 13, 2018), https://nce.fd.org/sites/nce.fd.org/files/pdfs/LItigation%20Strategies%20in%20Opioid%20Overdose%20Ca ses.pdf. However in at least one federal case, the prosecution did not make the charge in the indictment, but instead later used DIH as an aggravating factor in sentencing, requesting 14 years of incarceration. See
Version Date July 2021 – Check https://ssrn.com/abstract=3265510 for most current edition
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