If enacted, House Bill 474, Death by Distribution Act — introduced by Rep. Dean Arp, R-Union, March 29 — would make it easier for prosecutors to hold dealers and distributors responsible for an overdose death without having to prove malice. This type of murder conviction could result in a three to 23-year prison sentence depending on the person’s criminal record.
District Attorney Ashley Welch, who represents the seven most western counties, supports the bill and served on the committee that helped draft the legislation.
“We’re trying to help the people so addicted to drugs that they can’t help themselves,” Welch said. “The James Dodsons of the world are peddling this poison knowing addicts can’t resist it. I think there needs to be a punishment for that.”
The James Dotson conviction in Haywood County last December is what caught the attention of other prosecutors in the state and what landed Welch on the special committee to draft the bill.
In a rare occurrence, Welch’s prosecution team was able to show malice to proceed with the second-degree murder charge against Dotson. He ended up taking an Alford plea and was sentenced to 25 to 31 years in prison after accepting responsibility in the death of 20-year-old Haywood County woman Danielle Ashe.
Dotson was involved in selling an opiate laced with fentanyl to Ashe, which caused her to overdose. A second-degree murder conviction for these types of cases is hard to come by for prosecutors battling the opioid epidemic because the charge comes with the burden of proving malice.
“Right now we could charge dealers with manslaughter — which has no malice element — but they could just get out on probation,” Welch said. “We know we’re not going to stop the drug trade but I think dealers need to have a more serious deterrent. They do it knowing they might get caught but the consequences aren’t enough. For selling and delivering they may do a couple years, but if they realize they could catch a serious charge they might think twice.”
Welch said passing the Death by Distribution Act would also give the families of overdose victims a sense of justice. It’s a tragedy she and law enforcement officers have seen time and time again — a young person’s life cut short because of addiction.
“Within a month a few years ago we saw a series of overdoses of young people — one was this young lady in Haywood,” she said. “I met with her parents and they were just broken. Their daughter had just gotten out of rehab and the same day she overdosed. They’d done everything right as parents. (Danielle) was going places. This could have been anybody’s daughter.”
While it was too late to save Ashe’s life, Welch said she didn’t want to see more parents have to go through what she’s seen so many other struggle through. Trying to prosecute drug dealers is a constant frustration for law enforcement officers and prosecutors who watch the same distributors cycling in and out of the system only to be released back into the community where they continue to sell drugs.
“I told those parents I’d push to get a new law passed making it easier to charge dealers with second degree murder,” she said. “Dotson pled to murder but we had to show malice and that’s hard to show and it’s very rare.”
Support from sheriffs
Law enforcement in the region are also in favor of the measure, which was first included in the Heroin & Opioid Prevention & Enforcement (HOPE) Act but taken out before the act became law last year.
“If this legislation was already in place I know it could have led to to the arrests and prosecution of individuals in Macon County who have played a significant role in the death of sons and daughters in our community,” said Macon County Sheriff Robert Holland. “This legislation would go a long way in allowing us to prosecute and hold accountable those people who are putting the poison into our community.”
Many rural jails, including the Macon County Detention Center, are already experiencing issues with overcrowding as pretrial inmates are having to wait months and even years to get their case heard in court. They’re also having a problem making space for an increased amount of female inmates there on myriad drug charges.
Haywood County Sheriff Greg Christopher has taken a multi-pronged approach to dealing with the drug crisis and high recidivism rates that includes having peer specialists working with inmates inside the jail and taking part in the LEAD (Law Enforcement Assisted Diversion) program to get people the addiction and mental health services they need before they end up in jail. However, Christopher still believes in sending people a clear message that drug dealing will not be tolerated.
“I support the message our District Attorney’s office is sending, that there needs to be stronger accountability for those who are profiting from selling a product that is destroying lives and families every day,” he said. “We are fully aware the topic of addiction/addiction-related crimes have many layers and it needs to be addressed with a multifaceted approach.”
Despite backing from law enforcement and apparent bipartisan support in the state legislature, some in the addiction and recovery community see the bill as counterproductive to understanding addiction and the underlying causes of why people take or sell drugs.
The North Carolina Harm Reduction Coalition, a nonprofit that has done quite a bit of work in Western North Carolina over the last year, has taken a stance against the Death by Distribution Act and similar laws passed in other states. The coalition works to educate the public about addiction and harm reduction methods like clean needle and syringe exchange programs, Naloxone and overdose prevention and opioid substitution therapies like Suboxone. The coalition also is a huge proponent of the LEAD program to allow law enforcement to redirect low-level offenders engaged in drug or sex work activity to community-based programs and services, instead of jail and prosecution. Haywood County law enforcement is already utilizing the LEAD program thanks to a state grant and a director position through the NC Harm Reduction Coalition.
Virgil Hayes, advocacy and program manager for the coalition, said the Death by Distribution Act is just a knee-jerk reaction to what the coalition considers a serious public health issue. While he understands the pain and heartbreak associated with losing a family member to an overdose, Hayes says this kind of legislation hasn’t been shown to be effective.
“Usually legislation like this is drafted because a number of grieving parents understandingly are hurt by losing a loved one to an overdose. In your grief and pain it’s easy to want to cast blame on someone who distributed those drugs,” he said. “But we have a number of parents advocating with us who said immediately following the death of their loved one they would have supported the bill but after thinking about it, ultimately they came to the conclusion that if they didn’t get it from this person they would have gotten it from someone else.”
Prosecutors and law enforcement hope harsher penalties will deter people from trafficking opioids and other deadly drugs, but Hayes says there’s no evidence to support that claim — not even from the 20 other states who’ve enacted similar drug-induced homicide laws.
“In North Carolina we have to ask ourselves, ‘are we committed to reforming our criminal justice system or are we going to reignite and further exacerbate the issues in our criminal justice system,” Hayes said.
Sheriff Christopher said he cannot foresee this legislation heavily affecting the jail population, which he and Capt. Glen Matayabas actively monitor to keep numbers at a manageable and safe level.
“Our office, now more than ever before, is actively engaged in various community partnerships that have the goal of finding solutions to the issues involving drug addiction,” Christopher said. “We have peer support specialists working in our jail full-time to help guide those who are battling addiction issues toward a plan for re-entry when they are released. Our county is also part of an innovative pre-trial reform program which, so far, has yielded positive results reducing our inmate population.”
Hayes says it would impact the overall jail and prison populations in the state, and more importantly, wouldn’t do much to rehabilitate people or prepare them for life once they are released. A serious felony murder conviction on someone’s record will make it more difficult for that person to find a job, housing and other resources when they are released, which makes them more likely to begin selling drugs again to be able to survive.
“How do we get this person rehabilitated and transition them back to society so they don’t become a burden in the community again?” Hayes said. “Prison is not the best place for people with drug addiction. Then when they get out they have a high felony classification with murder attached to it. If want people to pull themselves up by their bootstraps we really have to provide them with the resources to do so.”
There are also questions about how the Death by Distribution Act could impact the Good Samaritan Law that allows people to call 911 in the case of an overdose without fear of being charged with a drug crime.
Welch said the proposed legislation wouldn’t negate the Good Samaritan law, but Hayes thinks the proposed law could deter people from calling 911 in the event of an overdose emergency. The language in the bill states the purpose is to hold “illegal drug dealers” accountable, but drug dealer is not defined. Without a more detailed definition, Hayes said the concern is that a fellow addict — maybe a friend or a family member of the victim — could be charged with second-degree murder.
“This legislation is very black and white and drug addiction is not black and white,” Hayes said.
Welch said she probably wouldn’t choose to prosecute a case where it was a friend or family member that distributed a drug to a loved one that caused a deadly overdose. Those aren’t the people she’s after — she’s looking to get the big-time dealers off the street.
“It will be up to the DAs to decide which cases to prosecute,” she said.
Furthermore, Hayes has heard many law enforcement officers say that “we can’t arrest our way out of the drug epidemic,” yet that’s exactly what this bill aims to do. Until the state is willing to tackle the deeper issues like affordable housing, a living wage and Medicaid expansion, he said people will continue to take desperate measures to make ends meet.
“Drug distribution is similar to drug addict and if we don’t address the underlying issues we’re going to be hard pressed to solve the problem.”
The NC Harm Reduction Coalition has been advocating in Raleigh and trying to explain to legislators why this law would do more harm than good. From what he’s seen, legislators are in favor of it and are entrusting the DAs in their district to use the law in the manner it is intended.
The proposed legislation has not yet come to a vote in the General Assembly, and Hayes encourages residents to reach out to their representatives to share their opinions about the bill.
“If this bill does pass, we’re going to look back on this and come to the conclusion that maybe we should have taken a different route,” he said. “And it’s a mistake that has come at the expense of people’s lives and families. We want to make sure we’re taking an approach to the issue that’s evidence and research based.”
To view the entire bill, visit www.ncleg.gov/Sessions/2019/Bills/House/PDF/H474v1.pdf.