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Why We Shouldn't Charge Drug Dealers for Their Clients' Deaths

Prosecuting dealers for what clients do with their drugs could actually make the heroin crisis worse.

In mid-October, Manhattan US attorney Preet Bharara announced the arrest of 20-year-old Anthony "Taco" Delosangeles for allegedly selling a fatal dose of heroin to a 25-year-old man. Delosangeles has been charged with conspiracy to distribute heroin, for which the federal mandatory minimum remains 20 years behind bars.

This was just one salvo in an aggressive new campaign to fight America's burgeoning opioid crisis by using longer, federal sentences for drug dealers. "We are going after those callous dealers who play Russian Roulette with other people's lives," Bharara wrote in an op-ed published in the Daily News. "Every overdose is a potential crime scene and should be treated as such."

On Monday, Bharara announced victory in a similar case: A judge sentenced 23-year-old Terrence Johnson to prison for 21 years for another 2015 overdose death. Meanwhile, prosecutors in at least 20 states—including California, Massachusetts, Pennsylvania, Illinois, and Ohio—have the power to enhance sentences for people who sell drugs to those who end up dead and many are doing so. But this approach is in direct conflict with laws aimed at saving overdose victims, and could actually make things worse as America continues to grapple with what amounts to a public health crisis.

The phrase "drug dealers" calls to mind villainous kingpins cackling while ordering murders and surrounded by luxury, stacks of hundred dollar bills, and beautiful women. In real life, many dealers earn McDonald's-level wages and often suffer from addictions themselves: Around two thirds of those in state prison for drug trafficking meet criteria for a substance use disorder, according to the federal Bureau of Justice Statistics. In other words, many of those prosecuted for drug delivery deaths could easily have been overdose victim themselves.

In a nod to this dire reality, at least 32 states have enacted "Good Samaritan" laws aimed at getting more people to seek medical help during an overdose by protecting them from prosecution for at least some drug crimes. Studies show that most heroin users have witnessed at least one overdose themselves—and less than a quarter reported calling for help in one study, mainly because they feared arrest.

These are some of the same people who will be targeted as dealers by prosecutors like Preet Bharara.

Unfortunately, the state he serves—New York—provides a prime example of why such an approach is doomed to failure. In 1973, then-governor Nelson Rockefeller pushed through a set of laws requiring dealers of coke and heroin be slapped with minimum sentences of 15 to life—or more. This meant that thousands of nonviolent criminals served longer terms than rapists, armed robbers, and even killers.

The laws did not end New York's drug problem, obviously. Less than a decade into their enforcement, in fact, NYC began experiencing one of America's top three crack epidemics (Los Angeles and Miami had the others), along with what became ground zero for the plague of HIV spread by intravenous coke and heroin use. New York also continues to have one of the largest concentrations of heroin users in the country, as it has pretty much since the drug was first introduced to the public en masse in 1898.

Meanwhile, the Rockefeller Laws were a catastrophe for the black and Latino communities. By 1992, the number of people incarcerated in New York state prisons had more than tripled, with the proportion of prisoners serving time for drug crimes rising from 11 percent to 35 percent by 1994. Despite minorities making up only about a third of the state's population, nearly 90 percent of those who served time under the laws during a period of peak enforcement were people of color.

It took more than three decades for lawmakers to admit their failure and repeal the statutes, starting in 2004. And there's no reason to believe that returning to lengthier sentences for dealing—whether it is labeled as such or as drug delivery leading to death—will be more helpful this time around.

In fact, the current epidemic presents deadlier challenges. As Bharara himself laments, heroin today is often mixed with substances like fentanyl that are far more dangerous in lower doses, making the risk of OD that much higher. By making those closest to an overdose less likely to seek help, these prosecutions could increase harm—not reduce it.

What this also means is that Bharara and prosecutors like him have set their nets to trawl for minnows, not sharks. After all, it's (usually) not kingpins who get high on their own supply or make the penny ante transactions in which drugs reach their final destination. And, by targeting retailers like "Taco" Delosangeles, who is Latino, and Terrence Johnson, who is black, they will continue racist disparities in enforcement, while failing to touch high-level sellers.

Moreover, while locking up a robber or rapist is virtually guaranteed to reduce the number of people on the street committing said crimes, locking up a drug dealer often just creates a job opportunity. A century of experience with prohibition tells us that law enforcement can't put a dent in these black markets.

If he's convicted, it will

cost $1.2 million simply to keep Delosangeles in state prison for 20 years. And if history and science are any guide, it won't prevent a single overdose. If, however, that money were to be spent on effective, evidence-based maintenance treatment, it could treat Delosangeles and two dozen other people dealing with drug problems for at least a decade, cutting their risk for death and for relapse at least in half and thereby actually shrinking demand.

Bharara's approach simply revives a proven failure. It's time for prosecutors in America to stop embracing drug strategies that have negative consequences and instead do what we know will save lives and reduce suffering.

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