Health

Contradictory state laws aimed at stopping drug overdoses aren’t applied equally

By Melba Newsome

Read part one of this series here.

When Sen. Stan Bingham (R-Denton) pushed for Senate Bill 20 in 2013, he said the bill meant more to him than other legislation he’d worked on. He believed the bill now known as North Carolina’s Good Samaritan Law was a way to address the spiraling overdose deaths that had tripled in the previous decade, claiming more lives than auto accidents. 

The Good Samaritan Law permitted people who are “acting in good faith” to seek medical help for someone who is overdosing without fear of being prosecuted. In addition, the law ensured that people would not get in trouble with their parole or probation officer for possessing small amounts of drugs or drug paraphernalia. It also made it possible to distribute and administer naloxone, a drug used to reverse an opioid overdose. 

Almost immediately, however, legislators began chipping away at a law many already felt was insufficient. Two years later, the law was amended to appease law enforcement who worried that it gave a “get out of jail free’” card to users. Law enforcement officials also wanted protection from prosecution if they mistakenly arrested someone protected by the law. 

A weak, confusing law many don’t trust

Many in the harm reduction community view the law as weak and problematic, particularly for some communities. 

“We don’t have protection from arrests like some states do; we only have protection from prosecution,” said Loftin Wilson, program manager for the NC Harm Reduction Coalition in Durham. “We don’t have protection across the board for possession, only for certain drugs and amounts. What drugs are covered or not covered is based on how drugs are classified and how drugs are classified is underpinned by racism. It has to do with perceptions about who uses what drugs and how they’re used.”

Wilson has been involved in harm reduction for more than a decade. He divides his time between providing direct services and doing program management and development for NCHRC’s harm reduction programs. Because most of the people with whom he works are Black, he has a unique window into the disparities of their care and a keen understanding of their wariness about drug laws, including those intended to help. 

Unintentional opioid-involved overdose death rates by county, N.C. residents, 2015-2019. Graph: NC DHHS, Data: Deaths: N.C. State Center for Health Statistics, Vital Statistics-Deaths, 2015-2019;
National Center for Health Statistics 2015-2019

“It’s something that fits perfectly into their frame of reference,” he said. “Black people have more negative interactions not only with law enforcement but both EMS, the hospital and people in emergency rooms. There’s less compassion, less patience and more blame for them. There’s more of a tendency to see certain people as problems or as criminals, rather than people who are suffering.” 

Shuchin Shukla, a faculty physician and opioid educator at the Mountain Area Health Education Center (MAHEC) in Asheville, said much of the reluctance to seek care under the Good Samaritan Law stems from the longstanding contributors to health care disparities. 

“I think it has to do with normal issues Black and brown communities always face – not having trust in the medical system, having lots of reasons not to trust the medical system, the approach those providers have, the color of the skin of your providers and your mental health provider,” Shukla said. 

How the ‘Death by Distribution’ law undermines the Good Samaritan Law

North Carolina’s “death by distribution” law went into effect on Jan. 1, 2020. The law allows prosecutors to charge an individual with second-degree murder if they sold a product to someone who then overdosed and died from it. 

The law was inspired by the 2017 accidental overdose death of a young woman in Haywood County. In that case, the person who supplied the opioids was charged with second-degree murder and sentenced to more than 30 years in prison, three times longer than the maximum allowable prison sentence for selling drugs in North Carolina. 

“The timing could not have been worse because that law went into effect so soon after the pandemic hit. With the pandemic came all of these disruptions in the global supply trade that have had this huge impact on overdose rates across the board,” says Wilson. “It’s like a perfect storm situation.”

The gap between the rates at which Black people and white people use and die from opioid overdoses has narrowed steadily in recent years. According to preliminary data from the Centers for Disease Control and Prevention (CDC), during the pandemic, the rate of Black overdose death exceeded whites for the first time in more than 20 years.

During the first year the law was enacted, 10 death by distribution cases were filed statewide and three-and-a-half times that in the 2020-21 fiscal year, according to felony data published by the NC Judicial Branch

Drug Induced Homicide (DIH) laws, as they are collectively called, are becoming increasingly common across the country. There is a great deal of debate about their impact and whether they are appropriate moral or legal responses to an accidental overdose death. Do these laws drive people who use substances further underground and increase the likelihood of fatal overdoses? Do they reduce willingness to call 911 in an emergency?

N.C. State assistant professor of medical anthropology Jennifer Carroll co-authored the article Drug induced homicide laws may worsen opioid related harms: An example from rural North Carolina. The research, published in the International Journal of Drug Policy, showed that any positive benefits of reducing opioid overdose risk for a short time were significantly outweighed by the negative, longer-term impacts, including a more volatile drug supply and reduced willingness to call emergency services to the scene of an overdose.

Wilson says this is particularly true for people of color who are more likely to distrust law enforcement. They know from personal experience that the impact and enforcement of drug laws are not distributed equally and greatly impacted by their identities and the communities in which they live. 

“When I’m talking with people about past overdose situations or preparing for a future one, they will say ‘I want to help them but I don’t want to go to jail for murder,’” says Wilson who also notes this makes some more hesitant to administer naloxone to prevent an overdose. “They’re like ‘well, if this person doesn’t survive, and then I’m the person who’s there, there’s the possibility that I could be charged with this.’”

A faulty premise

Rep. Dean Arp (R-Monroe) authored the law under the premise that it was needed to put high-level drug dealers behind bars. However, when the law was first being considered, many warned that the people most likely to be prosecuted would be friends and family members of the overdose victim, not drug kingpins. 

In one well-publicized Dare County case, 32-year-old Jessica Leigh Musick died of an overdose in December 2020 and her relative, Tahnee Raquel Musick, 32, was one of the two people charged with conspiracy to sell and/or deliver heroin. Tahnee Musick remained a wanted person until Dec. 26 when she was arrested by Southern Shores Police after several residents reported seeing her in town. She was in possession of drug paraphernalia. 

“There isn’t this hard distinction between people who use drugs and people who sell drugs,” said Wilson. “A lot of people who sell drugs also use drugs. We know that people who are prosecuted under death by distribution laws across the board everywhere in the U.S. tend to be friends and family members of the person who died.”

It is well-documented that despite using drugs at roughly the same rate, Blacks are arrested and incarcerated at much higher rates than whites. National research also suggests that “drug-induced homicide” laws are racially inequitable and charges are disproportionately brought in cases where the person who fatally overdosed is white and the person who distributed the drugs is a person of color. And as people of color are incarcerated at higher rates, racial disparities also show up in the overdose data

A study co-authored by five researchers from the UNC-Chapel Hill Gillings School of Global Public Health published in the American Journal of Public Health found that, in the first two weeks after being released from prison, former inmates were as much as 40 times more likely to die of an opioid overdose than someone in the general population. 

First, two-thirds of formerly incarcerated already have a substance use disorder and being incarcerated meant they underwent forced withdrawal. As a result, many leave prison with a lowered tolerance for drugs that previously they were able to handle. And during the time these people were incarcerated, the potency of substances available on the street has likely increased, leading to accidental overdose.

In addition to physiological changes, many former inmates struggle to find mental health and substance use treatment services once released, leaving them more vulnerable.

“Two key strategies to prevent deaths are widespread adoption of medication-assisted treatment and overdose education with naloxone distribution,” the researchers noted. But only a small fraction of carceral facilities in the U.S. employ these methods of harm reduction. 

“The loss of dignity, being judged even after release, discrimination, and lack of health care may worsen mental health outcomes and serve as an impetus for substance use,” the authors wrote in their conclusion “Overall, imprisonment for individuals with substance use disorder may be more harmful than helpful.”

This story is part of a reporting fellowship on health care performance sponsored by the Association of Health Care Journalists and supported by The Commonwealth Fund.

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