Time is a flat circle, and 1990s policy on drugs is no exception. Instead of legalizing fentanyl test strips, Texas’ solution to the opioid overdose crisis this legislative session was to adopt a war-on-drugs-style law that could slap a 17-year-old who gives their friends an Adderall pill with a murder charge for accidentally selling fentanyl – depending on how prosecutors choose to interpret it. House Bill 6, a Gov. Greg Abbott priority, increases penalties for making, possessing, or distributing fentanyl, and creates a new way to commit murder by reclassifying an overdose as a poisoning.
About half the states in the nation have drug-induced homicide laws, and studies have shown they can actually exacerbate overdoses and end up charging family and friends who were present when the victim died. Further criminalization, plus Texas’ perfunctory Good Samaritan law – which doesn’t protect certain 911 callers with prior convictions – will increase fear around calling 911 in an overdose emergency, says Texas Harm Reduction Alliance’s Paulette Soltani. “We know this is gonna result in more overdose deaths and more people incarcerated.”
About half the states in the nation have drug-induced homicide laws, and studies have shown they can actually exacerbate overdoses.
The good news for people in crisis is that prosecutors will have discretion in these cases. To charge someone, the autopsy must prove that the victim died from a scientifically lethal dose of fentanyl, and the dealer must have “knowingly” given it to them. But will prosecutors have to prove that “knowingly” part?
“We don’t know how the courts are going to handle those concepts until a case goes through the system,” says Shannon Edmonds, a staff lawyer with the Texas District and County Attorneys Association. But TDCAA’s interpretation is that “the state only needs to prove that the defendant was knowingly delivering something they knew to be an illegal drug. Not necessarily fentanyl.”
Charges under HB 6 are similar to felony murder, which charges the defendant with murder when someone dies while a person is committing a crime that endangers people. Another law bumps up a drug-dealing charge by one degree if someone dies as a result. In the high school Adderall dealer example, “a prosecutor may decide that the just thing to do is not prosecute them for murder, but prosecute them under that other [law] instead.”
Could this open prosecutors up to scrutiny under House Bill 17, the “rogue prosecutor” law also taking effect Sept. 1? Edmonds says that “if a prosecutor was to look at each situation on a case-by-case basis, then HB 17 doesn’t enter into it.” If Garza were to publicly take a stance against TDCAA’s statement, it could potentially open him to scrutiny under HB 17.
This article appears in September 1 • 2023.