Debate Forum: 10/14

Forum Center: Murder, he sold

By Sarah Sidlow

Illustration: Jed Helmers

Ohio has a heroin problem. According to the State Department of Health, a record 680 Ohians died from heroin-related overdoses in 2012 – up 60 percent from the previous year. For 2013, the Ohio Attorney General’s office estimates the heroin overdose total to be more than 1,000. What has been labeled by state officials an “epidemic” and a “public health crisis” is likely an unintended result of a statewide crackdown on “pill mills” – largely unregulated establishments which loosely distributed addictive pain killers like oxycodone and hydrocodone. With the decrease in the supply of pain medication came the increased demand for another form of pain relief for addicts: heroin, now of a higher quality, and sold at a lower price than ever before. In an effort to address Ohio’s heroin epidemic, Rep. Jim Butler is introducing new legislation. If passed, House Bill 508 would make Ohio a state with one of the harshest drug penalties in the country. 

Under the bill, if a drug dealer sold an illegal controlled substance to a person under the age of 18, and the substance led to an overdose resulting in that minor’s death, the charge against the drug dealer may be increased from involuntary manslaughter, which carries a maximum penalty of 11 years in prison, to aggravated murder – which has a maximum penalty of life without parole. If a person over the age of 18 overdoses and dies, the offending drug dealer could be charged with murder, which carries a penalty of 15 years to life in prison. 

Those in favor of these harsher penalties claim drug dealers know the harm of the product they are selling – as well as its potency – and, thus, should be penalized accordingly. They claim these dealers of death willingly profit from trafficking drugs that are not only illegal, but life-threatening. And they know their customers, which often include minors, have the potential to be hooked for life, becoming repeat customers.

Opponents of HB 508 claim the law would be difficult to legislate. In order to link the drug to the dealer, a case would almost have to involve a specific drug purchased and taken by an otherwise clean customer during an established period of time. Some warn of the economic and social consequences of putting non-violent convicted offenders in prison for decades with hardened criminals, or that harsher state penalties for heroin-related incidents may drive addicts away from seeking treatment. 

Regardless of politics, Ohioans agree something must be done about the increasingly real problem of heroin availability and death by overdose. It’s true law enforcement doesn’t need a new law in order to crack down on heroin dealers in their communities. But could Rep. Butler’s proposition and the increased penalties that come with it deter drug dealers from continuing to pump poison through Ohio?

Reach DCP Editor Sarah Sidlow at Editor@DaytonCityPaper.com

Debate Forum Question of the Week:

Should the penalties for dealers in drug death cases be increased to murder?

Debate Left: Drug Reaction

By Ben Tomkins

Rep. Jim Butler’s proposition to expand the definition of murder to include individuals who sold drugs that resulted in an overdose is misguided at best and a train wreck at worst. Frankly, I would have expected more from someone who works for a law firm, but, then again, a lawyer and a politician are two entirely different animals.

The first intellectual briar patch that comes to mind is the overly broad use of language. HB 508 appears to be a reaction to the growing heroin problem in Ohio, and, without question, heroin use is a problem in civil society. It is highly addictive, profoundly intoxicating and legitimately capable of killing a person even when taken in small doses. In addition to the physical and psychological harm such drugs can cause to the user, the potential for that individual to commit other crimes – both intentionally and inadvertently – is extremely high.

However, as it is written, HB 508 doesn’t refer to a specific class of controlled substances or differentiate between the probable and the highly improbable. As it is worded, the sale of marijuana and heroin would be considered equally criminal should an overdose occur. There is, obviously, a vast chasm between the likelihood of similar outcomes. However, by wording the bill in that way, the law leaves no room for a reasonable difference between the intentions of and perceived risks taken by the individuals involved.

Because of the bill’s wording, whether or not you are guilty of murder is purely a question of result and, therefore, one of strict liability. By definition, a conviction of homicide carries the qualification of mens rea – an understanding of one’s actions to some degree. The gradation between negligent homicide and murder – and the chances of walking free – can be highly or, possibly, completely dependent upon mens rea.

Considering the previous point, I also question the freedom with which the word “overdose” is used. For this purpose, an overdose would be any amount of a drug that causes death by any mechanism. As a result, there is no separation between the amount sold by the dealer and the amount actually taken by the user. In essence, the crime of the dealer could be entirely dependent upon the choice of the user. Yes, it is awful that heroin withdrawal can reduce a user to a pitiful dog who will do anything for a fix. It would be easy to equate giving that person heroin with giving a suicidal person a loaded gun. However, it is an entirely different set of circumstances when a dealer sells to a first-time group of idiotic college students. Now it rather resembles a YouTube video of a redneck rolling their four-wheeler over themselves while driving up a cliff. Again, mens rea is an extremely important factor.

Beyond the wording issues, I think the proposed legislation is fundamentally misguided. Selling a drug like heroin is not a crime that is going to be particularly affected by an increase in punishment. The reason many people get involved with selling drugs like heroin is because they don’t have many other financial opportunities in their communities and drugs present a lucrative solution. In those communities, the problem of drugs is deep and complex. Simply upping the penalty isn’t going to even scratch the surface of the underlying issues.

If this were about parking tickets, then I could see how going from a $50 to a $500 fine might have an effect that could be described as “significant.” If that happened, I would pay a little more attention to the status of the parking meter. Perhaps the point is a little patronizing, but I think the sale of hard drugs is a little more organized and breaks laws on many different levels. If you’re going into that business, prison becomes, as has often been said, a question of real estate.

Even if you do put someone away for 15 years instead of 15 months, it’s not as though removing that individual from the drug flow is going to cauterize the wound. Someone else will step up, and then someone else, and then someone else, and so on, in perpetuity. You’ve done nothing to actually address the underlying problems of financial appeal and the other most obvious issue, which is people choosing to take heroin in the first place.

The net result of the bill would be an increase in the number and length of incarcerations, and that only results in higher tax bills. The amount of crime won’t change a bit, and there will be the same number of dead bodies as there were beforehand. Interestingly enough, a few years back Rep. Butler introduced a bill suggesting that the cost of holding prisoners could largely be eliminated by having them build radios and TV sets. Ironically, it would seem that Rep. Butler has a particular interest in reducing the taxpayer’s liability in that regard.

Personally, I think a good start toward reducing drug use would be to raise the minimum wage. If a real job is even marginally more attractive, it’s probably going to have some effect on drug dealing and usage. Realistically, we’re never going to stop people from being involved in drugs, but there’s no point in reacting illogically because it allows us a defiant sense of self-righteousness.

Ben Tomkins is a violinist, teacher, journalist, and critically acclaimed composer currently living in Denver, Colo. He hates stupidity, and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of the issue. Reach Ben Tomkins at
BenTomkins@DaytonCityPaper.com.

Debate Right: Death by heroin

By Dave Westbrock

If one ever had to read the language in any legislative bill – or law, or part of the Ohio Revised Code, for that matter – one would get the idea composers of such bills or laws were asleep in sixth grade English classes when the teacher had them diagramming sentences. One reads and rereads the construction of a bill and it might well be written in a foreign language.

The bill in question is OH HB 508, introduced by Rep. Jim Butler, R-Oakwood, which recently passed committee. The bill provides for increasing the penalties for anyone selling illegal drugs that, as a result of drug overdose, cause the death of another person. One sentence in Sec 2929.14 (B)(2)(b)(iii) runs on for 134 words. At the end of the paragraph, one is forced to return to the beginning and read it all again to try to make sense of the provision.

Notwithstanding the above, the thrust of HB 508 is to increase the time spent in prison for those committing such crime. Despite the Sunday, Oct. 5 front-page Dayton Daily News sensational headline, “Heroin Dealers May Face Death,” dealers do not face death sentences as a result of the passage of this bill. It does increase mandatory sentencing guidelines to a minimum of 15 to 30 years, depending on the circumstances and the ages of the victims.

Let us examine some facts about the illegal drug industry in Ohio. According to the Department of Justice, over 600,000 prison inmates are released into society every year. Of those, two-thirds will be rearrested within three years of release. Half of that population is incarcerated for drug crimes.

In Ohio, drug-related injuries and deaths surpassed motor vehicle accidents in 2007. This tragic trend cost Ohio citizens $2 billion in medical and lost work hours in 2012. Over a 12-year period, the death rate from drug overdose increased over 300 percent. These trends include illegal use of prescription drugs. The personal costs, as well as the financial costs, of an increasing scourge of drug use will continue to wreck families, our infrastructure and our American culture. Long-term use of heroin may lead to generalized infection (sepsis), hepatitis C, AIDS, kidney failure (at an annual cost of $50,000 to treat one patient) and brain damage leading to long term cognitive deficits and a high rate of psychosis and schizophrenia, particularly in young persons.

Without drug dealers, there would be no market for drug use. On a large scale, drug dealers include cartels, particularly those from Mexico and South America, who routinely resort to murder to purvey their deadly product across our porous Southern border. It seems, therefore, appropriate to make the penalty fit the crime.

Most Americans would argue the death penalty, or at least life imprisonment, is an appropriate penalty for mass murder. Such a penalty was deemed appropriate for Nidal Hassan when he committed the crime of “workplace violence” on military personnel at Fort Hood in Texas and for Timothy McVeigh when he bombed the Murrah Federal Building in Oklahoma City. Is it not rational, then, to levy a penalty of 15 or 30 years to life for someone who causes the death of dozens or, perhaps, hundreds of individuals whom he or she supplies with heroin, cocaine or opioids? There has to be a distributor to make someone drug-dependent, and the potency of heroin, especially nowadays, is leading to more frequent death.

I personally know of one instance in which a chronically convalescent patient was prescribed opioids and then diverted to street use by a relative who shrewdly played the system on behalf of both parents. In the early part of my career, I had to care for patients who were hospitalized for long periods requiring intensive care. One case was that of a 23-year-old man who infected a previously replaced heart valve, a result of sepsis from reused needles, only to return for an operation to replace it.

Clearly, the article in the Dayton Daily News implies the death penalty would be levied against a drug dealer for any deaths resulting from his or her purveyance of an illegal drug. If the authors had thoroughly read the bill, they would note that such is not the case. Perhaps it is because some now feel that drug use and death is a victimless crime. After all, no one is forcing an individual to take the first shot or the first opioid pill. Tell that to the 16-year-old who pops the first hit, ignorant of its long-term consequences, or the child who has been trafficked from Central America through our porous southern border for child prostitution, ruining not one life, but countless lives for profit.

Perhaps it is because we live in a more tolerant age in which marijuana use is now legal in an increasing number of states, leading to death in at least one recent case. Colorado leaders can now brag of the increase in state revenue as a result of the wonderful tax benefits gained by ruining lives as marijuana increases the rates of psychosis and schizophrenia particularly in the young, the seeds of our future. What have we become? One candidate for local office has even suggested that we supply heroin to addicts as therapy. If we do not lead the world in efforts to eliminate this societal curse, who will?

Dr. Westbrock has been in private medical practice for 35 years. He was the Republican candidate for the U.S House of Representatives in 1994 and 1996. He has written and lectured extensively on the subject of health care reform and health care policy. He can be reached at
Dave.Westbrock@DaytonCityPaper.com.

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