HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Monday, December 21, 2020

Brief in Support of Emma Semler by Amici Curiae the Health In Justice Action Lab at Northeastern University School of Law and the Center for Public Health Law Research at Temple University School of Law

Scott Burris (Temple University), Jeremiah Goulka (Northeastern University), Leo Beletsky (Northeastern University), Brief in Support of Emma Semler by Amici Curiae the Health In Justice Action Lab at Northeastern University School of Law and the Center for Public Health Law Research at Temple University School of Law, Joined by Public Health Organizations and Practitio, NEU School of Law Research Paper No. 390-2020:

This case presents the Court with an opportunity to determine the proper scope of the Drug Distribution Resulting in Death (DDRD) sentencing enhancement provision. The provision, its parent statute, and the totality of modern federal law and policy to stem the overdose crisis are intended to target major drug traffickers. Research suggests that DDRD prosecutions routinely pervert this intent, indiscriminately deploying DDRD and similar provisions to target end consumers of illicit drugs affected by addiction. Rather than deterring drug trafficking, such prosecutions deter help-seeking during overdose events and interfere with overdose prevention measures. This cuts at cross purposes to overdose crisis response, leading to more, not fewer deaths. It is critical for the Court to determine the correct scope of the terms “distribution” and “distributor.” Amici submit that a reasonably circumscribed definition is vital to support federal law and policy. An overly broad interpretation contravenes justice and risks flooding the system with as many as 70,000 accidental overdose deaths reframed as homicides. The case at bar also presents the Court with an opportunity to consider whether DDRD prosecutions require a proximate cause determination. Amici submit that it should, for several reasons. First, criminal law discourages strict liability approaches borrowed from civil law. Second, a number of factors shape overdose risk; justice demands that courts consider their foreseeability and assess whether a sufficient nexus exists between transfer of drugs in DDRD cases to impose culpability. Finally, we recommend that the Court consider the instrumentality of DDRD prosecutions to advance overdose prevention. Such prosecutions crowd out investment of effort and resources into effective measures to address the current overdose crisis.

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