Any criminal defense lawyer who handles Federal drug trafficking cases will tell you that they are seeing an increase in defendants being charged with the death or serious physical injury of their users. This increase in prosecution has come in response to the heroin and more specifically fentanyl epidemic. Fentanyl has resulted in dramatic increases in the number of overdoses. It is no secret that our county is struggling to respond to the opioid epidemic.

On its face, 21 U.S. Code § 841 (viii) appears to address this issue by punishing dealers whose drug causes death or serious physical injury with a mandatory minimum of 20 years. The question becomes, does that law always correctly punish the criminal activity it is aimed at? As an example, Caleb Smith, who was studying for his medical exams, went online to illegally purchase ADHD medication. When Caleb received the pills in the mail, it is reported that his then girlfriend asked if she could have some. Caleb provided her with a pill and she was found dead a day later from overdose. Sadly, the pill contained fentanyl. Caleb was then charged for her death and was looking at a mandatory minimum of 20 years, even though he had no criminal history. Upon being released on bond, Caleb took his own life.

A similar hypothetical would be if a heroin addict was about to use and another addict asked if they could share the heroin. If that heroin has fentanyl in it and the second addict overdoses, the first addict could be charged under this statute. I think it is obvious that our laws want to punish people for providing others with drugs, even if it is not in return for money. Caleb or addict 1 should never have given another individual illegal drugs, especially considering that they could not possibly know what is actually contained in the drugs. On the other hand, do we want those individuals facing the same 20-year mandatory minimum as a known drug dealer? Caleb’s case is tragic because two lives were sadly lost. This just goes to show that laws aimed at punishing those who commit severe crimes can also bleed over and cause unproportionate punishment to others.