In a recent letter of May 4th, Mr. Wadzinski doubts the legality of charging the heroin seller with the responsibility of a near fatal overdose by the buyer. In the letter he separates the act of selling the illegal drug from the act of taking the illegal drug. Then he correctly notes that the law does not link selling of other things (alcoholic beverages or firearms with the results of using these purchases).
He fails to see the legal logic in the linkage between selling the illegal drug and using the illegal drug. His argument is compelling, except that there is a difference between legally produced and sold potentially deadly items and illegal drugs.
The link is if the heroin is a “hot” dose that has been laced with fentanyl or carfentanyl, a drug that is 100 times more potent than fentanyl. An ever increasing number of the lethal overdoses are due to fentanyl laced heroin. The CDC documented over 28,000 deaths due to synthetic opioids in 2017 alone.
The CDC notes that, “increases in synthetic opioid-involved deaths are being driven by increases in fentanyl-involved overdose deaths, and the source of the fentanyl is more likely to be illicitly manufactured than pharmaceutical.”
Another CDC report directly tied the increase in overdoses to fentanyl and other synthetic overdoses.
“During 2013–2014, the number of drug products obtained by law enforcement that tested positive for fentanyl (fentanyl submissions) increased by 426%, and synthetic opioid–involved overdose deaths (excluding methadone) increased by 79% in the United States. Changes in synthetic opioid–involved overdose deaths among 27 states were highly correlated with fentanyl submissions but not correlated with fentanyl prescribing.”
Heroin sellers use these super opioids so that they do not have to use as much heroin to create the high. However, proper mixing of the combination of these two drugs requires expensive commercial drug manufacturing equipment that drug distributors do not have. So they might use something like a cake mixer or hand mixer heroin and fentanyl. The result is that the mixture has parts with fatal amounts of fentanyl. And the result is a hot dose that kills the user.
So there is a direct linkage between the seller and the user, just as there would be if a bartender sold adulterated liquor to a customer who died, or if a firearm manufacture sold a weapon that malfunctioned and killed the user. In such a case the bar who sold adulterated liquor and the defective weapon manufacturer would be held liable. So should the drug dealer.
I am not saying that this is the link in the specific case that Mr Wadzinski is addressing since I am not privy to the details of the case. I am saying that linking what happens in the case of legal sales of liquor that is manufactured in a licensed facility and sold by a licensed facility is not the equivalent of drugs that are made and mixed in unregulated “labs” and mixed and sold by felons.
Mr. Wadzinski might push back and state that not all overdoes are due to synthetic opioids and that is true. I would say that it is better to criminalize all the drug sellers who are linked to overdoses than to place the burden of proof on the state. My position is that the law that makes all the drug dealers responsible for a death from a dose they sold is a net benefit for our society rather that a net detriment. If that is the law, the drug dealers who sell these drugs knowingly take on that risk.
Linking the death or near death of a user of an illegal drug with the seller is a method of creating a deterrent. Although it has not stopped the sales of illegal drugs, perhaps it has given some drug dealers pause.
Henry Kanemoto, MD
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