Here & Now

John Gross on Drug-Induced Homicide Penalties in Wisconsin

Frederica Freyberg:

Also, at the state Capitol this week, a Senate Committee on Judiciary and Public Safety heard testimony on a bill that would increase penalties for drug overdoses that are treated as homicides, saying Wisconsin’s current law doesn’t go far enough at targeting suppliers of drugs like opioids laced with fentanyl. But some experts say what these laws seek in theory is not what they target in practice. To learn more, we speak with John Gross, a clinical associate professor of law at the UW Law School and director of the Public Defender Project. And professor, thanks very much for being here.

John Gross:

My pleasure. Thank you.

Frederica Freyberg:

So current state law makes causing the death in an overdose a 40-year maximum penalty. This bill would make it a 60-year. What’s your reaction to that proposal out of the Capitol?

John Gross:

Well, my first reaction is that I don’t think it’s necessary to increase the penalty here. Wisconsin actually has very high penalties relative to some other states for various felony offenses. So moving this from a 40-year maximum to a 60-year maximum, I just don’t think it really addresses any of the underlying issues.

Frederica Freyberg:

Well, does it seem, given the opioid crisis, that policy makers are looking to use kind of a tough on drugs hammer to quell it?

John Gross:

I mean, I think that’s the knee-jerk reaction here, is to say that they’re going to appear to be tough on crime by increasing the penalty, but we have good data that suggests that this type of knee-jerk reaction that just makes something more punitive, increase the penalty on it, is not really going to impact what decisions people are making. Particularly in this area when we’re talking about people who have opioid abuse disorders. So, I think, again, it’s an attempt to appear harsh on crime, but it’s really ignoring the underlying issues that are causing the overdoses.

Frederica Freyberg:

So, again, you don’t think that it deters overdose deaths?

John Gross:

No. I mean there’s even an argument to say that increasing this type of penalty could cause more overdose deaths, and the scenario I’m imagining is a situation where people are using drugs, someone has gotten drugs, shared them with someone else, and that other person overdoses, and we would hope that in that moment, they would seek medical attention for the person, but if the message from the state is if you happen to hand the person the drugs that they used and they are now overdosing, you could go to jail for 60 years as a distributor of the narcotic or the opioid? Well, I mean, I don’t think that necessarily is going to prevent overdoses.

Frederica Freyberg:

So in your mind, is there a better way?

John Gross:

Well, I think if the state is sincerely concerned as we all are about lowering the number of overdose deaths, they’ve reached a high point. Historically what you need is to really address the underlying issues of addiction. You need to provide more opportunities for treatment, and you need to create, I think, safe spaces for people who are overdosing to have others try to get them medical attention, and this is really just the opposite of that.

Frederica Freyberg:

Well, when it comes to criminal penalties, should there be a difference between kind of a high-level dealer selling opioids laced with fentanyl and those addicted to opioids using with their friends. I mean, is there a place for this kind of penalty for the “dealer”?

John Gross:

So it’s interesting because these types of offenses are usually labeled drug-induced homicides, and Legislature started to criminalize that as a homicide back in the ’80s when we were experiencing an uptick in crack cocaine use, and the theory behind doing this was to really target people who were sort of drug kingpins. Right? To hold people accountable if they were distributing drugs that were killing people and making a prophet off of it. Unfortunately, the way the statute is written, it creates the potential to charge anybody who distributes or delivers drugs to someone else. So there are instances that — where we see friends using drugs together and one person overdoses and dies and then the other person is charged under the statute. So on the face of it, we’re really just hoping that prosecutors will use their discretion to only charge people who are the supposed drug kingpins, but we have cases and significant evidence to show that that’s not what’s happening. They’re really targeting other people who are co-users, and I think that’s really problematic.

Frederica Freyberg:

And yet, when a family member or child dies of an overdose, shouldn’t someone be held criminally liable?

John Gross:

I mean, I think there’s certainly an argument to be made that anybody who helps procure or distribute a drug that is itself illegal and does lead to someone else’s death, that that can be criminalized. Should we be criminalizing it at 40 years as a sentence or 60 years as a sentence? I mean, I think those are extremes and I think, again, I think the underlying issue here is the addiction and there’s other ways that the state can do to help reduce opioid deaths and other overdoses rather than this sort of punitive, let’s just make the penalty longer approach.

Frederica Freyberg:

Professor at the UW Law School, John Gross, thanks very much.

John Gross:

Thank you.