Drug-Induced Homicide Defense Toolkit, by Health in Justice Action Lab

Drug Induced Homicide Defense Toolkit

overdose deaths than DIH prosecutions, but they require citizens’ willingness to open their doors and find them credible enough to engage. Aggressive DIH enforcement undermines such initiatives, steering people away from even beneficial police contact and inadvertently worsening disparities in access to care.300 Worse, considering that these programs also require police to work in partnership with public health and other sectors, they may undermine the credibility of those other sectors among those individuals with a history of individual or community trauma involving the criminal legal system.

E. DIH prosecutions do not reduce drug use or drug crime Proponents of DIH enforcement contend that “it can be a helpful tool in identifying and prosecuting dealers and distributors in an effort to create a deterrent and turn the tide of opioids flowing through communities.”301 However, their contentions are never 300

See, e.g., Megan Cassidy, Study: 45% in mental-health crisis said Phoenix police made matters worse, The Republic (April 11, 2017), https://www.azcentral.com/story/news/local/phoenix/2017/04/11/phoenix-police-survey-mental-health-crisi s/100310696/; German Lopez, How America’s criminal justice system became the country’s mental health system, Vox (October 18, 2016), https://www.vox.com/2016/3/1/11134908/criminal-justice-mental-health; Zach Rhoads, The Problems With Post-Overdose Response Teams, Filter (February 24, 2020), https://filtermag.org/post-overdose-response-teams/. 301

NDAA, The Opioid Epidemic: A State and Local Prosecutor Response at 10. See William J. Ihlenfeld II, “Death Results” Prosecutions Remain Effective Tool Post-Burrage, U.S. Att’ys’ Bull . (Sep. 2016) at 45 (claiming effectiveness due to the continuing ability for prosecutors to secure convictions rather than any downstream reduction in overdose); Sam Adam Meinero, Danger in Milligrams and Micrograms: United States Attorneys’ Offices Confront Illicit Fentanyls, U.S. Att’ys’ Bull . (Jul. 2018), at 5 (citing three convictions, including one “trafficking ring” and one online distribution network, but offering no evidence

Drug-Induced Homicide Defense Toolkit, by Health in Justice Action Lab

Articles inside

D. Secondary sources

c. Illinois

b. Wisconsin

a. Pennsylvania

VIII. FINALTHOUGHTS: HUMANIZING THE DEFENDANTAND USING PERSON-AFFIRMING LANGUAGE

F. The questionable strict liability approach

G. Better approaches to the overdose crisis

E. DIH prosecutions do not reduce drug use or drug crime

treatment

C. Jail and prison actually increases the risk of overdose and death D. DIH prosecutions hinder law enforcement efforts to connect users with

B. DIH enforcement actually reduces help-seeking, thereby increasing the risk that people will die from overdose

A. DIH statutes purport to target major traffickers, but prosecutions target co-users and small-scale sellers

3. Apps

1. Contents and metadata

E. Cell phone searches and Carpenter

2. Location tracking

B. Denial of MOUD to inmates may violate the ADA or Rehabilitation Act

V. SENTENCING AND MITIGATION

acquisition requirement

D. Arguing for a broad application of the joint-user rule based on distinguishing users from sellers

B. Application to drug-induced homicide prosecutions

b. Query determination of manner of death as accident or homicide for evidence of bias

a. The constructive possession doctrine

1. Decisions requiring physical presence

C. Analyzing the simultaneous acquisition requirement

2. Decisions not requiring physical presence

ii. Toxicology as a tool

2. Proximate causation and foreseeability

3. Intervening cause limitation

3. Consider the state official’s expertise

pathologist/medical examiner

B. Challenging the scientific evidence

“but-for” testimony

1. But-for causation

i. Autopsy as a tool