So-called “Good Samaritan” laws provide some immunity from criminal charges for individuals seeking help for themselves or others suffering an overdose. These laws are meant to save lives by eliminating the fear of arrest; someone who is with someone who overdoses can call 911 without fear of arrest — or at least, that was the hope and the promise. It isn’t working out that way.

When Illinois adopted its Good Samaritan law in 2011, there was an exemption for “drug-induced homicide,” so that prosecutors could still charge drug dealers. Allowing this exemption was the only way to get the Good Samaritan law past the legislature, said Kathie Kane-Willis, Ph.D., director of the Illinois Consortium on Drug Policy at Roosevelt University. “We had to do some serious negotiations around drug-induced homicide to say that the Good Samaritan immunity didn’t apply,” Kane-Willis told ADAW last week. “That was the concession we had to make, in our legislation it says specifically there is no immunity from prosecution for drug-induced homicide.”

Dealers and users

The idea from the law enforcement people working on the Good Samaritan bill was clear, recalled Kane-Willis — “they wanted to go after the drug seller,” she said. But the way drug-induced homicide investigations and prosecutions have gone since then have actually involved drug users — friends and relatives of the person who is overdosing. If the victim dies — even if the friend or relative called 911 — that person is being charged with drug-induced homicide.

Another problem is that law enforcement traditionally thinks of users and dealers with a bright line separating them, said Kane-Willis. That is just not true; many people sell drugs because they are supporting their own habit.

In Chicago, paramedics usually go to overdose 911 calls, not the police, said Kane-Willis. But it became clear that first one prosecutor and then more were interested in prosecuting drug users whose loved ones died from overdoses using the drug-induced homicide exemption from the Good Samaritan law. “We were really concerned about how this would impact overdose deaths,” she said. “Also, I was afraid that this would be a wholesale problem across the country.”

In one case in Madison County, a young woman — Angie Halliday — was charged with drug-induced homicide because she sold a drug in order to get the money to buy heroin for her boyfriend, who overdosed and died. “So she was charged with her boyfriend’s death,” said Kane-Willis. The only reason she wasn’t convicted was that the drugs were purchased in Missouri, which has no drug-induced homicide law. Halliday pled guilty to a lesser charge, as do many people charged with drug-induced homicide, because the penalty is so high, said Kane-Willis.

“What makes it very complicated is the delivery-sales aspect,” said Kane-Willis. “There doesn’t need to be remuneration in order to be charged with delivering the drugs. If I’m in a using pair, and I go out and buy the drugs that we use together and he dies, I can be charged with homicide.” Halliday had argued in her defense that both she and her boyfriend knew the risks, and knew they were “playing Russian Roulette.”

And there can even be charges if the person who overdosed is rescued. In Illinois, “aggravated battery” now includes injection of any drug that results in “grievous bodily harm,” said Kane-Willis. “So if you inject someone, and you call 911 and save their life, you can still be charged with aggravated battery.”

National problem

“I’ve been talking to our colleagues across the country, and the sad reality is we’re not seeing the promise of these Good Samaritan laws materializing on the ground yet,” said Daniel Raymond, policy director of the Harm Reduction Coalition. “The easy part is passing the laws; the hard part is implementing them.”

Even the laws themselves are a “patchwork of carve-outs,” said Raymond. “When we try to educate users about Good Samaritan laws, there are so many loopholes that we have to say, ‘If the police want to arrest you, they will find a way.’”

Part of the legislative process for advocates like Kane-Willis and Raymond means educating lawmakers about taking a treatment and public health approach to opioid addiction. “We see all these law enforcement officials saying, ‘We can’t arrest our way out of the problem,’ but there’s still this sense that if there’s an overdose, someone needs to be punished,” said Raymond.

Because the drug prosecutions are in general not federal, it’s not as if the attorney general can issue a memorandum saying “We’re no longer going to prosecute around this,” said Raymond. “But there is a sense that we need a higher level of leadership and some greater level of buy-in.”

Police and treatment

It’s clear that law enforcement is getting more involved with some of the health aspects of the opioid crisis, such as the Gloucester, Massachusetts, police initiative in which drug users are told they can be referred to treatment instead of arrested (see ADAW, July 27, 2015). But can drug users really trust the police? Raymond provided two perspectives on the issue. On the bright side, this could be a “transitional moment when there is a lot of confusion, not just about the laws but about the right responses,” he said. “But my more cynical view — and I was concerned about this when we started training police in New York City about naloxone — is that law enforcement is taking an outsized share of responsibility for what should be a medical problem.”

Raymond is also concerned that the Gloucester initiative, as we reported last year, focuses on out-of-state rehabs, instead of focusing on medication-assisted treatment. “Time and again, people go through detox and rehab, and a huge proportion end up relapsing and then overdosing,” he said.

Raymond talked to us in the middle of a week spent on Capitol Hill talking to staffers about opioid addiction. “They told me that they are taking their cues from the police,” said Raymond. “I asked them if they are talking to addiction counselors, to treatment experts, but they’re more interested in the uniform,” he said. “Many members of Congress are former prosecutors, who have always relied on the endorsement of the Patrolmen’s Benevolent Association,” he said. “They have a direct pipeline to law enforcement.”

Families

Another factor in the prosecutions is the parents of young people who die from overdoses, many of whom support drug-induced homicide laws, said Kane-Willis. “It makes sense,” she said, “because many of these parents are unaware of what drug use looks like. They really believe that the child just used once and overdosed, and they’re so angry.”

And Raymond agrees. When the parent says “I want whoever sold the drugs to rot in jail,” prosecutors have a hard time turning this kind of plea down, he said. “Prosecutors see this as the old model of deterrence — that they can scare people out of using,” he said. “They want to have a spectacular prosecution, make the evening news.”

In many cases, these are communities that several years ago didn’t have a heroin problem, and are “catching up to the reality,” said Raymond. He learned a few years ago when the Harm Reduction Coalition when to northern Kentucky to organize a three-day training on overdose prevention and syringe access that communities do not want to adjust to the opioid epidemic — they want it to disappear. “I had to explain to my colleagues that this area has been overwhelmed by heroin; they think it’s a nightmare they need to wake up from. They don’t want to hear about needle exchanges; they just want to ride out the epidemic and have it end,” he said. “It’s just like people who think treatment is this magic thing, and they can put someone in rehab and in a month they’ll come back to their old self.”

‘Culture change’ needed

In the meantime, it’s hard to create a public health infrastructure to reduce overdose as long as the using community is going to be afraid to call 911. “The Good Samaritan laws are not really providing immunity,” said Kane-Willis. “It’s hard to communicate the message that it’s safe to call 911.”

Perhaps the harm reduction community should have started by talking to prosecutors, Raymond acknowledged. “Now I’m at the point where I think it’s going to take a culture change,” he told ADAW. “The prosecutors are going to have to start telling police, ‘Don’t bring these cases to me; you’re wasting my time.’”

Editor’s note: The National District Attorneys Association was not able to respond to a request for an interview by press time, but we will have their perspective in an upcoming issue.