Prosecuting Overdose: An Exploratory Study of Prosecutorial Motivations for Drug-Induced Homicide Prosecutions in North Carolina

Abstract

Background:

Prosecutorial use of drug-induced homicide (DIH) laws varies, and their public health impacts are poorly understood. This mixed-methods study explores associations between the number of DIH charges filed in North Carolina’s 42 prosecutorial districts and district-level characteristics. Further, it documents the experience and views of North Carolina prosecutors on DIH cases.

Methods:

We conducted a descriptive, exploratory analysis of DIH enforcement by prosecutorial district in North Carolina to assess associations between overdose deaths, number of prosecutors employed, and rurality of the district. We also sent a survey to all N.C. prosecutors requesting that they detail their experience with and views on DIH prosecutions.

Results:

We found no association between overdose deaths or the number of prosecutors and DIH charges within a district. Survey data suggests that perceived justice for the deceased and perceived imperatives to “do something” about overdose influence prosecutorial use of DIH charges. Prosecutors generally appeared to agree that DIH cases had the potential to reduce substance use and/or drug dealing and/or fentanyl dealing and/or drug overdose in their districts, though how DIH cases would produce those effects was not clarified. Many prosecutors framed people who use drugs as helpless victims and forged categorical distinctions between (1) people who use drugs and sell drugs to support their addiction and (2) people who use drugs and sell drugs and are motivated by profit. Several prosecutors suggested that charging one person with homicide for another person’s consensual acts may not appear logical to all jurors.

Conclusions:

DIH prosecutions do not appear to be predicted by district characteristics commonly believed to shape prosecutorial action. Many prosecutors endorsed claims about the community-level impacts of DIH prosecutions that are unproven and generally contradict the available evidence. More research on the implementation and community-level outcomes of DIH prosecutions is needed.

Introduction

The number of opioid-involved overdose fatalities in the United States has risen steadily since the 1990s, exceeding mortality rates caused by firearms and motor vehicle accidents in most demographic groups (Sehgal, 2020). The twelve-month period ending in June 2021 saw 100,570 reported overdose deaths—the first twelve-month period in which over 100,000 overdose deaths occurred (Ahmad et al., 2023). In that time, approximately 75% of overdose deaths were reported as involving an opioid (Ahmad et al., 2023).

U.S. policymakers have endorsed several public health strategies for preventing overdose deaths (El-Sabawi, 2018, 2019), including expanding access to medication for opioid use disorder (Andraka-Christou et al., 2022), expanding access to naloxone (Davis & Carr, 2015), and legalizing syringe service programs (Fernández-Viña et al., 2020). At the same time, however, the criminal-legal system remains the primary governmental arm charged with responding to substance use (Allen et al., 2021; Beckett & Brydolf-Horwitz, 2020; Earp et al., 2021), often leveraging coercive strategies of behavior change in both punitive (Tiger, 2013) and ostensibly public health-oriented interventions (Tori et al., 2022). Further, U.S. drug policies are often built upon perceived distinctions between “drug suppliers” and “drug users.” illustrated by increasingly stringent criminal-legal consequences for drug distribution (Beckett & Brydolf-Horwitz, 2020), while drug possession may result in pre-arrest diversion away from criminal charges (Kopak & Frost, 2017) or post-arrest diversion to specialty courts (Beckett & Brydolf-Horwitz, 2020; Tiger, 2013).

This effort to distinguish “users” from “suppliers” in U.S. drug policy is especially apparent in drug-induced homicide (DIH) laws – laws that facilitate the charging of individuals who have allegedly supplied a drug product subsequently implicated in a fatal overdose with a criminal killing. Generally speaking, DIH laws often enable prosecutors to more easily charge an overdose death as equivalent to homicide by dispensing with the mens rea (or criminal intent) requirement and can relax or even not require foreseeability or proximate cause (Kreit, 2019). The criminalization of drug distribution as equivalent to manslaughter or homicide is not unique to the United States. In 2019, the Australian state of New South Wales enacted a new law establishing “drug supply causing death” as a novel crime carrying a maximum sentence of 20 years in prison (Methven, 2019). In Canada, similar prosecutions date back to the 1980s but appear to have increased in number by several orders of magnitude since 2016 (Haines, 2021). While the true volume of DIH charges filed across the United States is unknown, media analysis suggests wide variation in their use across states and prosecutorial districts (The Action Lab, 2023).

Little is known about prosecutor motivations for filing (or declining to file) DIH charges in response to an overdose death. While some local prosecutors have voiced support for these laws (El-Sabawi et al., 2023), others have endorsed less punitive, more public health-oriented responses (Fair and Just Prosecution, 2022). To the best of our knowledge, only one peer-reviewed publication directly explores the perspectives of federal prosecutors (in a single U.S. Attorney’s office in Connecticut) on DIH laws, finding nuanced thoughts on the pursuit of justice but little reflection on public health consequences of filing such charges (Rothberg & Stith, 2018).

Further, emergent public health and health policy research suggests that criminal-legal responses to substance use —including but not limited to DIH prosecutions—may worsen community health, leading some researchers to describe contemporary drug policy in the United States as “two steps forward, one step back” (Nadelmann & LaSalle, 2017). For example, Ray et al. found that opioid seizures by law enforcement are significantly associated with increased fatal overdoses in the vicinity of the seizure site during the three weeks following (Ray et al., 2023). While the methods utilized by Ray et al. cannot determine causation, other studies have identified mechanisms by which disruption to the drug market may increase overdose death in the local community, suggesting a causal connection (Carroll et al., 2020; Rhodes et al., 2019; Victor et al., 2020). Further, a narrative study of a particular DIH case from Appalachian North Carolina suggests that these prosecutions may increase the risk of overdose by disrupting the local drug supply or deterring individuals present at an overdose from calling for medical assistance (Carroll et al., 2021). Evidence is growing that DIH laws directly undermine a proven and effective overdose prevention strategy: 911 Good Samaritan Laws (Latimore & Bergstein, 2017; McLean, 2018; Peterson et al., 2019; Rouhani et al., 2021). Yet, potential public health impacts are difficult to ascertain without more complete information about how and why prosecutors pursue DIH charges.

Mirroring national trends, the number of reported overdose deaths in the U.S. state of North Carolina has nearly tripled from 1,537 in 2015 to at least 4,235 in 2022 (Ahmad et al., 2023). In response, the North Carolina General Assembly has recently enacted laws expanding access to naloxone and legalizing syringe service programs (Cloud et al., 2018; Davis & Carr, 2015). At the same time, laws criminalizing drug distribution resulting in death as equivalent to homicide have been enacted in the state for several decades and are the subject of renewed legislative attention. This background, along with the geographical differences between North Carolina's several fairly large metropolitan areas and rural regions, makes the state a compelling case study for gaining a deeper understanding of DIH prosecution. North Carolina has had a DIH law, “Second Degree Murder—Distribution of Drugs,” in effect since 1980 (N.C. S.B. 1054 of 1979), which has been amended three times to explicitly include overdose deaths involving cocaine (N.C. S.B. 961 of 1989), methamphetamine (N.C. S.B. 1054 of 2004), and synthetic opioids (N.C. H.B. 464 of 2017). In 2019, North Carolina enacted a second DIH law (“Death by Distribution”), which created two new DIH charges, “death by distribution” and “aggravated death by distribution” (N.C. Gen. Stat. § 14-18.4), that dispensed with the mens rea requirement (Fangrow, 2020). In 2023, the N.C. General Assembly amended Death by Distribution to include a new offense that does not require that the drug be sold but includes any distribution of a drug that causes a death (N.C. S.B. 189 of 2023).

The aim of this study is to describe how DIH laws are perceived and utilized by prosecutors in North Carolina. First, we conducted a descriptive, exploratory analysis to assess possible relationships between district-level variables and the number of DIH cases brought in North Carolina’s prosecutorial districts. Second, we deployed an online survey to prosecutors serving in North Carolina’s 42 prosecutorial districts to explore what factors may motivate them to pursue DIH charges.

2.0. Data & Method

2.1. Theoretical Approach: To Charge or Not to Charge?

In this study, we consider prosecutorial practice through the framework of focal concerns theory, or FCT (Galvin & Ulmer, 2022; Harris, 2009; O’Neal & Spohn, 2017). According to FCT, legal decision-makers often have limited information to inform decisions and often rely on (sometimes problematic) heuristics for addressing three focal concerns: 1) offender culpability; 2) community safety; and 3) practical restraints of the decision in question (Steffensmeier et al., 1998). Although initially developed for analysis of judicial discretion, FCT has been used to examine decisions made by prosecutors (Brady & Reyns, 2020; Spohn et al., 2001) as well as other criminal-legal actors, including probation officers (Harris, 2009; Huebner & Bynum, 2006), police officers (Campbell et al., 2021; R. R. Johnson et al., 2015), and juries (Rose & Rountree, 2022). Convictability, one practical constraint articulated by FCT, theorizes how prosecutors rely on their perceptions of likely responses from juries, defense attorneys, and judges to the evidence in any given case (Brady & Reyns, 2020; Frohmann, 1997; Offit & Riles, 2022). Based on these predictions, prosecutors make judgements about the likelihood of conviction, which informs their decision to pursue charges (Beichner & Spohn, 2005; Franklin, 2010; Spohn & Tellis, 2019), even if a jury is unlikely to ever hear the case (Offit & Riles, 2022).

Prosecutors are thus active participants in meaning-making, framing evidence “to accomplish particular tasks, such as establishing the credibility of a defendant…” (Frohmann, 1997:532) and attempting to align facts of a case within the wider “shared value orientations, behavioral expectations, and accepted case processing norms” of the court community (Johnson et al., 2016). For this reason, the application of FCT to DIH prosecutions requires consideration not only of what prosecutors view to be important in assembling their case but also of how they present different types of evidence as indicative of the focal concerns expected in criminal cases. Put another way, to make the distribution of a controlled substance into a homicide, prosecutors must shape the meaning and perception of offender culpability, community risk, and practical restraints to support the more severe conviction. Whereas most research in the focal concerns literature relies on the analysis of secondary case outcome data after controlling for different case attributes (Lynch, 2019), we instead survey prosecutors about potentially influential factors that fall under other focal concerns. By collecting quantitative data and open-ended responses, we can examine the factors prosecutors describe as important and the distinctions, classifications, and arguments they make to justify a DIH conviction (Frohmann, 1997).

2.2. Descriptive, District-level Analysis

North Carolina statute (N.C. Gen. Stat. § 7A-60) defines 42 unique and non-overlapping prosecutorial districts, with each district representing between one and seven contiguous counties. Data on the total number of three criminal charges (“SECOND DEG MURDER DIST DRUG,” Charge 0943; “DEATH BY DISTRIBUTION,” Charge 0952; and “DEATH BY DISTRIBUTION/AGG,” Charge 0953) filed in each of those prosecutorial districts annually from 2015-2022 (2022 is inclusive of the first three quarters, ending on September 30, 2022) were obtained from the North Carolina Administrative Office of the Courts. To calculate DIH charges by district, our outcome of interest, we aggregated all charges of “Second Degree Murder – Distribution of Drugs” and “Death by Distribution” by prosecutorial district. These data were obtained before the 2023 amendments to the Death by Distribution law went into effect, therefore it does not contain any information related to those changes. We chose to begin our analysis in the year 2015 as this is the year when the number of overdose deaths attributable to illicit opioids first exceeded deaths attributed to prescription opioid medications (Ciccarone, 2019), producing a sea of change in public sentiment about the social harms of substance use and the role of illicit substances—especially fentanyl—in rising overdose rates (El-Sabawi, 2018). All county-level data on overdose and second-degree murder/death by distribution charges were aggregated into their respective prosecutorial districts. Due to relatively low counts of DIH charges in most districts each year, we aggregated counts of each variable into a single count representing the 7 years inclusive of 2015-2021 to define our outcome variable.

Based on existing literature, we considered the following independent variables for inclusion in this analysis: the number of prosecutors in the local prosecutors’ office, criminal activity, overall number of crimes charged, incident of underlying behavior/offense, rurality, and population (Wright, 2012). If DIH charges were similar to other felony charges, we would expect that these variables would contribute to the variation in the number of DIH charges by prosecutorial district in North Carolina as well. We ultimately declined to include district population or overall number of crimes charged as variables due to high collinearity with the number of full-time prosecutors in each district—a number set by the state legislation. In the resultant analysis, we considered relationships between DIH charges and overdose deaths, the number of assistant prosecutors in that district, and rurality.

We hypothesized that each fatal overdose presented a unique opportunity to bring charges against a defendant who allegedly distributed drugs associated with that overdose. County-level unintentional overdose counts for opioid-involved and stimulant-involved overdose deaths for the year 2015 and for all medication/drug overdose deaths for the years 2016-2021 were obtained from the North Carolina Injury and Violence Prevention Center. We further hypothesize that a larger workforce within a prosecutor’s office may create more capacity for bringing such charges and/or may result in the creation of prosecutorial teams dedicated to homicide and homicide-like (i.e., DIH) cases. The number of full-time assistant district attorneys to be employed in each district is also defined by statute (N.C. Gen. Stat. § 7A-60). Finally, rurality has been theorized in legal scholarship as a potential driver of DIH charges (Beety 2019). We defined rurality as a dichotomous variable created using data on county-level classifications from the North Carolina Rural Center, with rurality defined as a population density of less than 250 persons per square mile (N.C. Rural Center, 2022). To be classified as rural, the district needed to be comprised of one or more rural counties. All variables were obtained for the years 2015-2021.

Descriptive statistics were generated for the total count of DIH charges brought by year by prosecutorial district. We included all DIH charges in our dataset, ranging from January 1, 2015 to September 30, 2022, in our descriptive statistics (see Figure 1). However, at the time of this study, the North Carolina Department of Health and Human Services had not yet certified any overdose data from the year 2022. Thus, all subsequent analysis was limited to DIH cases ranging from January 1, 2015 to December 31, 2021, in-line with available overdose data.

Figure 1. Count of DIH charges* filed in N.C. prosecutorial districts** between January 1, 2015 and September 30, 2022.

*inclusive of second-degree murder by drug distribution (defined under N.C. Gen. Stat. § 14-17(b)(2)), death by distribution (defined under N.C. Gen. Stat. § 14-18.4), and aggravated death by distribution (defined by N.C. Gen. Stat. § 14-18.4)

**N.C. state law (N.C. Gen. Stat. § 7A-60) has not designated the title “District 19” to any current prosecutorial districts. Only 42 districts exist, numbered 1-18 and 20-43, respectively.

Because our sample of prosecutorial districts is small (n=42), we used descriptive statistics and comparative graphical visualizations in GGPlot2 (Wickham 2016) to inspect trends in the data and to identify potential direct relationships between variables. A Wilcoxon rank sum test for nonparametric distributions (also called a Mann Whitney U test) was used to compare counts of DIH charges in non-rural vs. rural counties. The Wilcoxon rank sum test allows for the comparison of two independent samples that are small and not normally distributed (LaMorte, 2017). All analysis was performed using R Statistical Software (version 4.1.2; R Foundation for Statistical Computing, Vienna, Austria).

2.2. Survey of North Carolina Prosecutors

From October 2021 to June 2022, we administered an online survey to district attorneys and assistant district attorneys across North Carolina (see Appendix 1). This survey was developed through a review of existing literature on prosecutorial discretion and DIH laws, as well as feedback from prosecutors who were employed outside of North Carolina and were, therefore, ineligible to participate in the study. Eligible participants were identified through a publicly available, online directory of all district attorneys and most assistant district attorneys provided by the North Carolina Judicial Branch (North Carolina Judicial Branch 2022) and from publicly available information hosted by individual prosecutorial district websites and the website of the North Carolina Bar Association (North Carolina State Bar Association 2022). All identified, eligible participants were sent an informational email about this study with a link to the online survey. With the available information, surveys were electronically distributed to 318 prosecutors across all 42 prosecutorial districts. Following the initial link distribution, a member of the research team (B.M.) made direct phone calls to invite survey participation to approximately 215 prosecutors, limited by the availability of an individually dedicated phone number. For each of the 318 prosecutors who were sent the survey, contact was attempted a maximum of three times, including both email and phone call attempts.

Survey respondents were asked to provide information related to: 1) individual demographics; 2) prosecutorial experience; and 3) influential factors in pursuing DIH charges. Demographic information included self-reported race, gender, and age range. Questions on prosecutorial experience included years of work experience as a prosecutor; current job title; the county or counties in which their office has jurisdiction; office structure (including the number of assistant district attorneys in their office and whether their office assigned homicide cases to specific persons or teams); whether they had ever charged someone with DIH (yes/no); how many DIH charges they had brought in the past 1 year and the past 5 years; and how many of those DIH charges went to trial.

Respondents were asked to report their views on the likelihood of possible impacts of DIH cases on a sliding scale from 0-100, where 0 meant “Very low; the potential for a case to have this impact is negligible” and 100 indicated “Very high; there is strong potential for a case to have this impact.” For each potential outcome listed, participants were presented with a slider labeled “0” at the far left and “100” at the far right, and every multiple of ten (10, 20, 30, etc.) was labeled evenly across the axis. A cursor was placed at “50,” and respondents were asked to drag the cursor left or right to indicate their perception of the likelihood of each outcome. Possible outcomes named in the survey were: (1) justice for the deceased will be served; (2) justice or closure will be obtained for the family of the deceased; (3) DIH charges will increase public approval of my prosecutor’s office; (4) substance use will be prevented or deterred in my district; (5) drug distribution will be prevented or deterred in my district; (6) the risk of fatal overdose will be reduced in my district; (7) the distribution of illicit fentanyl will be prevented or deterred in my district; (8) drug markets or drug distribution networks will be significantly disrupted in my district; and (9) other drug-related crimes (i.e. manufacturing, violent crime, etc.) will be prevented or deterred in my district. Respondents were subsequently provided with an open text field for offering comments or for naming any additional outcomes they found likely but were not among those listed above.

Respondents were also asked to report the relative importance of certain factors for their decision to bring or not bring DIH charges. Respondents were again asked on a sliding scale from 0-100, where 0 meant “Not at all important” and 100 meant “Very important,” and presented with a slider ranging from 0-100 with a cursor initially set at “50.” The factors named in these questions were: (1) the parents or family of the deceased have asked you to prosecute; (2) the deceased is or is a relative of a high profile member of the community; (3) public opinion in your district is generally in favor of prosecuting such drug crimes to the fullest extent of the law; (4) The defendant is already known to my office and/or local law enforcement as a drug distributor; (5) the defendant is a repeat offender; (6) the defendant displayed an articulable disregard for the life of the decedent; (7) the defendant is also implicated in other criminal activity not related or in addition to the current case; (8) the defendant allegedly distributed drugs containing fentanyl or other potent synthetic opioids; (9) the case is high profile and/or receiving significant media attention; (10) the DIH charges might induce a plea agreement from the defendant in this case; and (11) bringing charges might convince the defendant to cooperate with law enforcement and disclose information leader to another arrest or induce other forms of cooperation with an ongoing investigation. Respondents were then again provided with an open text field for offering comments or for naming any additional factors influencing their decision about bringing DIH charges that were not among those listed above.

In addition to the two open-ended prompts described above, survey respondents were provided with open-ended prompts at four additional points in the survey. Those prompts were: (1) “Are DIH cases a high priority for your office? Why or why not?”; (2) “Is there anything else you'd like to share about the level of support for drug-induced homicide charges in your district?”; (3) “What evidence do you look for or find most persuasive when deciding whether or not to charge someone with a drug-induced homicide?”; and (4) “Is there anything important that we didn’t ask about? Please tell us what we missed and why it is important.”

Due to the limited number of open-text responses and due to significant overlap in the topics raised by respondents in open-text responses, regardless of which prompt they were responding to at the time, all open-text responses were amassed into a single dataset for thematic analysis. Results were reviewed by researchers, and open-ended answers were coded. Analysis consisted of an iterative process of abductive analysis (Timmermans & Tavory, 2012). First, open-ended responses were deductively coded using offender culpability, community risk, practical restraints, and convictability (all concrete examples of focal concerns as articulated in FCT) as primary codes. Inductive coding was then conducted to identify emergent findings not captured through deductive coding. The findings presented here were identified through these dual coding exercises.

The protocol for the survey component of this project was determined to be exempt from review by the Institutional Review Board at North Carolina State University.

3.0. Results

3.1. Descriptive, District-level Analysis: Trends in DIH Charges

A total of 337 DIH charges were brought in North Carolina during our observation period (see Figure 1). As previously stated, North Carolina has two DIH laws: Second Degree Murder—Distribution of Drugs, which went into effect in 1980, and Death by Distribution, which went into effect in December 2019. During our observation period, a total of 168 Death by Distribution charges and 16 Aggravated Death by Distribution charges were filed in 34 (81.0%) of the state’s 42 prosecutorial districts. Prosecutors in the remaining 8 districts did not bring any Death by Distribution charges from January 1, 2015 to September 30, 2022. The single largest increase in charges under the Death by Distribution law occurred between 2019 (when 42 charges were brought under the new law) and 2020 (when 81 charges were brought under the new law)—a nearly 2-fold increase. The combined 61 Death by Distribution charges filed in the first three quarters of 2022 is on par with 2021 counts. During the same time period when charges could be brought under the Death by Distribution law (January 1, 2020 - September 30, 2022), 63 additional charges of Second-Degree Murder—Distribution of Drugs were also filed: 26 in 2020, 19 in 2021, and 23 in the first 3 quarters of 2022. Nearly the same number of Second-Degree Murder—Distribution of Drugs charges (n=64) occurred in the six years prior (2015-2019).

One-third (n=61) of all Death by Distribution charges during our observation period were filed in 4 prosecutorial districts: District 28 (consisting of Montgomery and Stanley Counties, 25 total charges), District 22 (consisting of Caswell and Rockingham counties, n=14), District 12 (representing Harnett and Lee counties, n=13), and District 11 (consisting of Franklin, Granville, Person, Vance, and Warren Counties, n=9). Approximately one-fifth (n=8) of districts had only one Death by Distribution charge since that law’s enactment in December 2019; an additional 8 districts had no Death by Distribution charges through September 30, 2022.

An average of 8 total DIH charges (inclusive of Second-Degree Murder—Distribution of Drugs, Death by Distribution, and Aggravated Death by Distribution) were filed in each prosecutorial district during our observation period. Prosecutors in District 28 brought 45 total charges during that time, the highest of any district (see Figure 1). The second highest number of total DIH charges filed during that time were filed by prosecutors in District 2 (consisting of Beaufort, Hyde, Martin, Tyrrell, and Washington Counties, n=24). More than half of all prosecutorial districts (n=24) have had DIH charges filed at a rate of <1 per year during the observation period. Only 2 districts—District 29 (representing Hoke and Moore Counties) and District 35 (representing Avery, Madison, Mitchell, Watauga, and Yancey Counties)—did not have any DIH charges filed through September 30, 2022.

3.2. Descriptive, District-level Analysis: Exploratory Analyses

Charts displaying the total number of charges brought by district between 2015 and 2021 plotted against the total count of overdose fatalities per district and number of assistant district attorneys per district, respectively, can be found in Figure 2. Visual inspection of the plot reveals no linear relationship between these variables. In fact, the district with the highest number of total charges falls in the middle of the distribution of total overdose deaths, and the district with the highest number of DIH charges employs the fewest assistant prosecutors of any district in the state.

Figure 2. Total number of charges* per district from January 1, 2015 to December 31, 2021 plotted against total number of overdose deaths per district in that same time period and against the number of full time assistant district attorneys per district.**.

*inclusive of second-degree murder by drug distribution (defined under N.C. Gen. Stat. § 14-17(b)(2)), death by distribution (defined under N.C. Gen. Stat. § 14-18.4), and aggravated death by distribution (defined by N.C. Gen. Stat. § 14-18.4)

**number of assistant district attorneys per district is set by statute (N.C. Gen. Stat. § 7A-60).

Thirteen prosecutorial districts were determined to be exclusively urban or suburban according to the classifications assigned by the North Carolina Rural Center (“non-rural districts”). The remaining 29 districts include at least one rural county (“rural districts”). Non-rural and rural districts had differing median DIH charges filed (5 and 7, respectively), with rural districts having a wider range of DIH charge counts than non-rural districts (Range: 0-45, IQR: 3-13.8 vs. Range: 1-17, IQR: 2-6.5, respectively). The Wilcoxon rank sum test found no significant difference between these distributions (p=0.23).

3.3. Survey Results: Study Population and Experience with DIH Cases

A total of 33 prosecutors opened our survey. Among those 33, 21 completed the entirety of the survey, and 3 completed over 75% of the survey. Using 75% survey completion as the threshold for inclusion, our survey had a response rate of 7.5%. By self-report, these 24 respondents collectively represented 18 (41.9%) of North Carolina’s 42 prosecutorial districts and 16 (47%) of the 34 districts where charges have been filed under North Carolina’s 2019 Death by Distribution Law. Collectively, those 16 districts have brought 108 (59%) of the 184 Death by Distribution or Aggravated Death by Distribution charges filed in North Carolina. Further, two-thirds (66%) of respondents reported having charged someone under a DIH law in the past, suggesting that prosecutors may have opted to respond to the survey due to their experience enforcing DIH laws. Thus, though the overall response rate was low, the survey successfully targeted prosecutors who are actively choosing to prosecute DIH cases across a sizeable portion of the state’s prosecutorial districts.

Respondents were majority White (90%) and male (60%), with most from eastern and central North Carolina (n=19). Most respondents were middle-aged or younger, with 30% reporting their age between 30 and 39 years, 35% reporting their age between 40 and 49 years, and 35% reporting their age as 50 or more years. About 10% of respondents reported currently serving as District Attorneys; the remaining respondents reported presently serving as Assistant District Attorneys. The average experience working as a prosecutor was 11.1 years (IQR: 5 16.5). Collectively, these respondents reported a total of 73 instances of DIH charges in the past 5 years, averaging 4.9 charges per prosecutor. Of these 73 cases, 2 (2.7%) were still pending. Of the remaining 71, only 3 (4.2%) went to trial.

3.4. Survey Results: Responses to Rating Questions

Nineteen (79.2%) of the 24 survey takers responded to questions about the relative importance of certain factors for their decision to bring or not bring DIH charges. Six potential motivators for bringing DIH charges elicited responses above 50 (towards “very important”) from at least 75% of respondents, suggesting general agreement on their importance (see Figure 3): the parents or family of the deceased have asked you to prosecute (total responses=11; median=61); public opinion in your district is generally favorable of prosecuting such drug crimes to the fullest extent of the law (total responses=12 ; median=63); the defendant is a known drug distributor (total responses=16 ;median=79); the defendant is a repeat offender (total responses=15 ;median=80); the defendant displayed an articulable disregard for the life of the decedent (total responses=18; median=88); and the defendant allegedly distributed drugs containing fentanyl or other potent synthetic opioids (total responses=16; median=93). Two prompts elicited responses below 50 (towards “not at all important”) from at least 75% of respondents, suggesting general agreement about their non-importance: the deceased is or is a relative of a high-profile member of the community (total responses=16; median=0), and the case is high-profile and/or receiving significant media attention (total responses=15; median=11).

Figure 3: Survey responses describing factors influencing the decision to bring DIH charges.

In contrast, three prompts elicited a distribution of responses with a total range of at least 80 and an interquartile range of at least 50 that spanned the 50-point mark, suggesting disagreement or differing views across the study population. These include: the defendant is implicated in other criminal activity (total responses=13; median=68); DIH charges might induce a plea agreement from the defendant (total responses=16; median=28); and DIH charges might induce cooperation in other criminal investigations (total responses=13; median=33).

Twenty (83.3%) of the 24 survey takers responded to questions about the possible impacts of filing DIH charges. Six of these 9 prompts elicited a similar range of responses (see Figure 4), with medians falling between 60 and 75 and the interquartile range generally falling above the 50-point mark, suggesting general agreement about the likelihood of DIH cases to have these impacts. These impacts included: substance use will be prevented or deterred in my district (total responses=16; median=60); drug distribution will be prevented or deterred in my district (total responses=17; median=66); the risk of fatal overdose will be reduced in my district (total responses=17; median=67); the distribution of illicit fentanyl will be prevented or deterred in my district (total responses=17; median=73); drug markets or drug distribution networks will be significantly disrupted in my district (total responses=18; median=71); and other drug-related crimes will be prevented or deterred in my district (total responses=18; median=62). Of the remaining 3 prompts, two elicited very similar ratings that were markedly higher than all other prompts: justice for the deceased will be served (total responses=15; median=80), and justice or closure will be obtained for the family of the deceased (total responses=16; median=80). The remaining prompt, DIH charges will increase public approval of my prosecutor’s office, rated lowest (total responses=14; median=47) and represented the largest total range (0-85) and the largest interquartile range (18-75) of responses, suggesting disagreement or differing views across the study population.

Figure 4. Survey responses describing likely outcomes or effects of DIH prosecutions.

3.5. Survey Results: Responses to Open-Ended Prompts

Respondents were presented with 6 open-ended prompts throughout the survey. Of 144 possible responses to these prompts, 53 were offered, ranging from 3 to 87 words in length. Through our analysis of the content of those 53 responses, four major themes emerged. First, in line with the construct of convictablity, as articulated in FCT, responses indicated that prosecutors were influenced by intent-related factors despite malice not being an element of the crime. Second, related to the FCT construct of community safety, protection of the community through prosecution was often discussed through direct references to increasing overdose deaths in their jurisdictions. Third, in line with the FCT construct of practical restraints of the decision in question, convictability emerged as a primary concern of prosecutors, with many stating that DIH convictions faced unique challenges due to the socially and morally complex nature of the offense in question. Lastly, one emergent trend was identified across survey responses: many respondents noted a tension between prosecuting drug distributors who also use the substances they sell. We discuss these themes in turn below.

3.5.1. Offender culpability and the persistence of malice

In answering the question about what evidence was most persuasive in pursuing DIH charges, respondents repeatedly appealed to the defendant’s knowledge that the substances they sold posed an increased risk of overdose. One prosecutor who had previously charged individuals with DIH stated that their decision to use this charge would be influenced by the presence or absence of “strong evidence that the accused knew the particular substance to be lethal.” This prosecutor added that being sentenced for DIH was a “justifiable punishment for an accused acting without regard for the safety of others.”

The above sentiment was expressed by several other respondents as well. One listed several types of evidence they found to be persuasive, all related to the defendant’s knowledge of the product they allegedly distributed: “If the dealer knew the drugs were bad. If someone else had a prior negative reaction to the same drug [batch] and the dealer knew. If the dealer had intent beyond to sell drugs.” Several more prosecutors indicated that the defendant’s “awareness of fentanyl” in the drugs they supplied, framed here as an indication that “the dealer knew the drugs were bad” or that “the suspect was aware that the substance [implicated in the overdose death] was fentanyl,” constitutes a particularly compelling reason to bring DIH charges. Though N.C. DIH statutes do not explicitly include a knowledge requirement, the knowledge of the purported dangerousness of the substance could support the prosecutors’ arguments that the drug sale was a wanton (or deliberate) disregard of human life. This focus on the sheer presence of fentanyl in substances allegedly sold by the defendant aligns with the relatively high rating that participants gave to fentanyl involvement with respect to its importance in their decisions to pursue charges (see Section 3.2.2).

3.5.2. Protecting the community

Prosecutors regularly appealed to the so-called “overdose crisis” as a primary justification for pursuing DIH cases. In line with the FCT construct of community protections, prosecutors framed DIH charges as a way to reduce local overdose risk. When asked why their office prioritized DIH cases, prosecutors offered responses like: “Overdose deaths are plaguing our communities;” “Opiate [sic] related deaths are causing a tremendous amount of damage in the community;” and “The overdose rate in our district has been extremely high; I believe we need to use all the tools available to help mitigate the problem.” Respondents overtly assigned blame for high rates of overdose mortality in their communities to drug distributors. For example, one prosecutor stated, “The opiate [sic] addiction crisis is still ongoing, and we intend to hold dealers responsible for facilitating the crisis.” Elaborating on why DIH cases are a priority for their office, another stated:

Our office has a duty to protect this community. We have seen an increase in the number of people who have died as a result of drug overdoses. To the extent that someone is profiting off of delivering poison to people through drugs, that person should be held accountable [for] the conduct and any resulting death.

This respondent further described the act of selling or distributing illicit substances as “delivering poison,” thereby framing drug distribution as analogous to a more traditional form of homicide—intentional poisoning.

The imperative to protect the community from people who distribute drugs through DIH prosecutions was often stated with reference to the perceived vulnerabilities of people who use drugs. For example, one prosecutor described the intent of North Carolina’s Death by Distribution law as “hold[ing] the dealer accountable, and tak[ing] into consideration that often a user is helpless to stop.” Some indicated that young age increases vulnerability—and thus the severity of the crime resulting in DIH charges—by declaring “multiple young [overdose] victims” or “evidence that the accused was directly or indirectly distributing to children and/or adolescents” to be reasons to file DIH charges. A prosecutor with more than 25 years of experience elaborated on this perspective as follows:

As with any prosecution or group of prosecutions, a significant goal for me is equality in the means and outcomes of my work. Because the victims of Death by Distribution crimes are often those who do not have significant equity in our system, the importance of these prosecutions is magnified. We are eagerly anticipating the opportunity to promote the goal of equity through this new law in N.C.

Here, the respondent implicitly frames the decedent as a member of a population (i.e., people who use drugs) that is already marginalized or, perhaps, poorly served within the criminal justice system. Thus, this respondent believes they are promoting equality for people who use drugs by bringing criminal charges against persons identified as drug suppliers.

Survey responses implied various theories about how or why DIH charges can protect the community. Some suggested that DIH charges could, somehow, disrupt the local drug market or drug availability. One prosecutor, who has reportedly brought multiple DIH charges in the past 5 years, stated, “We need all tools available to stem…fentanyl flooding into community.” Another pointed to the “prevention of distribution by the specific defendant in the future” as the primary mechanism by which DIH prosecutions may mitigate community harm. Some indicated that potential DIH defendants might be uniquely potent sources of community harm; for example, one prosecutor disparaged “drug dealers [who] know what they are selling and the dangers thereof, yet they continue.” Other respondents argued that prosecution reduced the impact of drugs in the community in more general terms. A relatively newer prosecutor stated, “drugs destroy communities… and drugs are catalyst for many other crimes.” Thus, this respondent perceives DIH prosecution as a potential tool for preventing other types of crime in addition to drug-related activities and their associated harms.

3.5.3. Uncertain convictability in DIH cases.

In line with the FCT construct of convictability, several prosecutors described their willingness or reluctance to bring DIH charges in terms of how a hypothetical jury would respond. Responding to a question about support for DIH charges in their prosecutorial district, one prosecutor with over 20 years of experience stated, “We don't really know how a jury will handle these charges.” Other prosecutors also acknowledged this uncertainty, indicating that securing a conviction requires the prosecutor to educate the jury about the crime. A prosecutor with jurisdiction in a rural county stated, “jurors are not used to hearing about or thinking about Death by [Distribution] cases, so it’s a teaching type of case/closing.” In other words, this prosecutor sees DIH charges as occurring outside a jury’s typical understanding of what a criminal charge of homicide consists of, requiring intentional education about the law should the case go to trial.

Some respondents expressed concern that juries would not understand why a person would be charged for a death they did not directly cause. Conviction of DIH charges, as one prosecutor described, “require[s] the jury to find the defendant guilty for basically a voluntary act by the victim.” Another prosecutor with more than 30 years of experience described this concern as follows: “These cases face [an] uphill battle because, while jurors want drug dealers to be prosecuted, they also want to hold the deceased responsible for their drug use. It is a delicate balance between the [two].” In other words, DIH cases may be challenging if juries see the overdose victim as someone who shares—or who wholly maintains—culpability for the circumstances of their death. Similarly, a prosecutor with more than 15 years of experience stated, “the public [holds] lots of misconceptions about prosecuting a drug dealer for a death when a drug user willingly ingests the illegal drug. There is some blame on the user, but that is not an element of the current laws.”

Reduced confidence in convictability also stems from perceived evidentiary concerns, particularly as related to causation. A prosecutor with a jurisdiction spanning multiple counties stated, “Drug-induced homicides are extremely difficult cases to prove… Most of the issue revolves around the fact that it can be difficult to prove the defendant provided the narcotics and the narcotics were the direct cause of death.” Several prosecutors similarly describe difficulties in proving that (1) the defendant acted (i.e., they sold or delivered the drug to the deceased) and (2) that act caused the death (i.e., that the drug sold to the deceased by the defendant was what caused their death). Responding to a question about what would influence their decision to pursue DIH charges, one respondent stated, “The biggest [influence] is the strength of evidence linking the defendant to the drugs ingested by the victim that lead to the victim's death…often, there really is no direct or credible evidence linking the defendant to the sale of the drugs that killed the victim.” Another prosecutor argued that the thorniest evidentiary issue is “that typically someone associated with the victim destroys evidence prior to law enforcement arriving to complete an investigation.” Another respondent indicated that poor strength of evidence may deter prosecutors from charging someone with DIH or taking DIH cases to trial, saying, “Drug-induced homicide cases are hard to prove…but, if we had a case with sufficient evidence, we would go forward with it.”

3.5.4. Tension surrounding defendants who distribute drugs and also use drugs

Many respondents expressed ambivalence about prosecuting drug suppliers who also use drugs under a law that is facially intended to protect people who use drugs. If the law recognizes—or if the prosecutors who wield the law recognize—people who use drugs as a particularly vulnerable population due to, as one prosecutor put it, their “helpless[ness] to stop,” then people who both sell and use substances fall into an ambiguous classification. To resolve this ambiguity, multiple respondents drew categorical distinctions between people who sell drugs motivated by their own substance use and those who sell drugs motivated by profit—or, as one prosecutor described it, “need based dealer vs. want based dealer.”

Of note, all prosecutors who pointed to this distinction framed these two categories as mutually exclusive, implying that a drug seller may be motivated by their addiction or by the desire for profit, but never both. For example, one respondent noted that “whether the offender also used drugs or sold drugs to support a habit [versus that] offender strictly selling drugs for profit and abstaining from use” was something they would consider when deciding whether to file charges. Similarly, another respondent reported that their decision to bring DIH charges would be influenced by whether “[defendants] were selling to support their own habit.” However, not all respondents appealed to this distinction and instead attributed blame to all drug suppliers. A possible illustration of this sentiment (in addition to many excerpts already shared above) is the statement by a prosecutor who described DIH charges as “justifiable punishment for…acting without regard for the safety of others.” However, it is also possible that this survey participant was simply re-stating the statutory standard required for a homicide conviction in North Carolina.

4.0. Discussion

This exploratory, mixed-methods study sought to examine the use of DIH charges across North Carolina through two methods: 1) an exploratory analysis of district-level trends in DIH charges; and 2) a survey exploring prosecutors’ perspectives on the implementation and impacts of North Carolina’s DIH laws. Our district-level analysis did not support any of the independent variables we hypothesized to be predictive of charges: number of overdose deaths, number of full-time assistant prosecutors employed in a district, and rurality. Instead, this analysis indicates that the volume of charges brought by individual prosecutorial districts varies widely. Some districts, with diverse characteristics, bring a large proportion of the state’s total charges, while many others bring relatively few or none at all.

Our survey documented some agreement among North Carolina prosecutors about the reasons for pursuing DIH charges. Respondents tended to rank criminal history, perceived disregard for the welfare of the decedent, and fentanyl-involvement as the most influential factors in their decision to bring (or not bring) DIH charges; however, opinions were split on stating their support for the utility of DIH charges to induce plea bargaining or cooperation with another investigation. Most respondents expressed some confidence that DIH prosecutions could deter or prevent substance use, drug distribution, fentanyl distribution, or other drug-related crimes, as well as reduce fatal overdoses in their districts. In contrast, all respondents ranked DIH prosecutions as highly likely to serve justice for the deceased and obtain justice or closure for the family of the deceased. Open-ended responses further highlighted common evidentiary challenges, concerns that juries will be reluctant to convict the defendant for another person’s choice to use drugs, and moral ambivalence about people who both sell and use illicit substances.

Survey respondents largely agreed that DIH prosecutions play some role in preventing overdose. A common refrain in open-text responses was that the magnitude of the overdose deaths in the community required “all of the tools available.” Some respondents connected reduced overdose to either individual deterrence or supply disruption via prosecution, yet existing literature casts doubt on the likelihood of either mechanism. Current research suggests that the threat of criminal prosecution is more likely to alter how people who sell drugs carry out their business rather than deterring those business dealings altogether (Carroll et al., 2021; Dickinson, 2017). Further, the local drug market disruption may directly contribute to increased overdose risk among persons who rely on the arrestee’s supply (Mohler et al., 2021; Ray et al., 2023). In fact, a recent modeling study suggests that lowering the threshold for felony possession of fentanyl could increase overdose deaths by nearly 20% (Savinkina et al., 2023). Emerging research also suggests that the strongest deterrent effect of those prosecutions is felt by those who witness an overdose, making them less likely to call for medical assistance during an overdose event (Carroll et al., 2021; Gottschalk, 2023; Latimore & Bergstein, 2017; McLean, 2018; Peterson et al., 2019; Rouhani et al., 2021).

It is concerning, therefore, that so many prosecutors who responded to our survey—prosecutors who, by self-report, have collectively brought dozens of DIH charges in North Carolina—maintain the belief that DIH prosecutions improve public health and safety when (a) this assertion has never been meaningfully evaluated, and (b) all relevant evidence contradicts available causal hypotheses that could underly these beliefs. We are particularly struck by the yet unproven but very real possibility, following the evidence cited above, that DIH prosecutions—which our survey shows are often brought in pursuit of justice for a family who has lost a loved one—may increase the likelihood that another family will suffer the same tragedy. Rather than blindly increasing prosecution in the name of using “all of the tools available,” robust state and county support for the implementation of well-researched, evidence-based public health interventions with known community-level outcomes, such as targeted naloxone distribution, syringe services programs, and medications for opioid use disorder (Carroll, Green, et al. 2018), may better serve communities in North Carolina and elsewhere. Future research should further examine the role of these beliefs and prosecutor education on current evidence in shaping prosecutorial decisions regarding the use of DIH laws.

Survey respondents’ answers also reflect a growing focus on the presumed distinction between people who use drugs and people who sell drugs in contemporary drug policy—a distinction that many drug policy advocates have critiqued as largely false and unfounded (Drug Policy Alliance 2019; El-Sabawi et al., 2023). In our data, prosecutors often spoke of people who use drugs as a particularly vulnerable population and of drug distributors as distinct actors who exploit “helpless” people for profit. Prosecutors construct these categories of people, places, and actions to produce salient systems of meaning that aid in their work (Frohmann, 1997). These moral boundaries may reflect local beliefs, but they also emerge in the context of national discourse about the purposes of punishment delivered by the criminal justice system. Time and time again, U.S. drug policy has reproduced, at the discursive level, a moral and categorical distinction between drug possession and drug distribution (Beckett & Brydolf-Horwitz, 2020) that equates drug distribution with violence. This is apparent in current discourse among both state and federal legislators requesting that fentanyl be declared a “weapon of mass destruction” (Longley et al., 2022). In our survey, one respondent noted that DIH prosecutions constitute “a teaching type of case” in that prosecutors must explain why one person should convicted for the willing act of another. While this respondent was referring to individual juries, their statement also describes how DIH prosecutions are “teaching type of case[s]” for moral boundaries between possession and distribution.

Several survey respondents expressed a certain uneasiness with crisp distinctions between possession and distribution that DIH laws may be perceived to imply. Yet many resolved that tension by imposing yet another distinction: that between a “needs-based dealer” and a “want-based dealer.” The former would ostensibly be an individual with reduced culpability due to their own use, while the latter would only be involved in the drug trade to profit off the addictions of others. This classification, like the distinction between distribution and possession, does not align with known patterns of DIH prosecutions, which often see close friends and family members of the decedent being charged (Beletsky, 2019). As the number of DIH cases across the United States increases, close attention to the distinctions used to aid in prosecution (Frohmann, 1997) may be valuable to defense attorneys, as they may find themselves deconstructing these discursive distinctions to advocate for their clients. Further research is needed to determine whether those distinctions inform the outcomes of DIH cases as they play out in plea negotiations or at trial, or whether they remain legal fictions—often discussed but of little consequence.

The present study has several limitations that should be considered in the interpretation of results. First, our exploratory study of district-level trends in DIH charges is characterized by small sample size, small counts of DIH charges filed. Larger studies may be able to more reliably assess these relationships. Second, our survey relies on a small, non-representative sample of North Carolina prosecutors. Survey findings may not be applicable to prosecutors working in other regions of the United States or in meaningfully different policy environments. Our low response rate also introduces the possibility of sample bias, further weakening the external validity of our findings. While we cannot rule out the possibility of such bias, we suggest that our sample may be interpreted as a meaningful cross-section of prosecutors who have brought DIH charges in the past. Prosecutors have been described as a hard-to-reach population, with most research relying on secondary case outcomes as a proxy for prosecutor decision-making (Sklansky, 2018), and similar surveys of prosecutor motivations conducted elsewhere are characterized by similarly low sample sizes (Cross & Whitcomb, 2017). Thus, our data is not unusual, but caution in interpreting results is still merited. Finally, we are unable to assess whether pandemic-related restrictions affected the types of charges filed during the study period or the survey responses received.

Our findings suggest that qualitative research is essential for identifying perceptions and motivations that may influence prosecutorial decision-making in the context of DIH charges but would not necessarily be identified through an application of FCT. One potential area for future research is an examination of the role of actors outside the prosecutor’s office, such as family members of the decedent or community activists, in pressuring prosecutors to pursue or to abandon DIH charges. Similarly, despite our respondents’ statements to the contrary, media attention given to an overdose death may affect the decision to bring DIH charges or mediate the impact of DIH prosecutions, and these questions merit further investigation. Moreover, media effects could be moderated by another variable, such as whether it is a re-election year or whether the incumbent elected prosecutor’s position is being challenged in upcoming elections. Lastly, examining the disparate use of DIH prosecution by race, gender, and class of both the defendant and the decedent is merited, as responses provided by participants in this study suggest that DIH prosecutions may follow the logic of the War on Drugs and, thus, may perpetuate many of its associated, discriminatory harms.

Highlights.

• No association was found between overdose deaths or the number of prosecutors and the filing of DIH charges

• Prosecutors described being motivated by increasing overdose cases and the pursuit of justice for the deceased

• Prosecutors believed DIH cases had the potential to reduce substance use and drug overdose deaths

• Prosecutors reported tension in charging one person with homicide for another's consensual acts

Appendix 1. Survey Instrument for Prosecuting Attorneys

1. Drug-induced homicide laws (called death by distribution, delivery causing death, or death by delivery in some states) specifically authorizes the prosecution of drug-related deaths as criminal killings (homicide, murder, or manslaughter) if those drugs are implicated in a fatal overdose. Has your state enacted a drug-induced homicide law as defined above?

   [YES; NO; I DON’T KNOW]

2. Do you have the authority to bring felony charges in your prosecutorial district?

   [YES; NO]

3. In which state do you currently practice law?

   [FIXED RESPONSE, SINGLE CHOICE]

4. Over which county or counties does your office have jurisdiction? (If you are a special prosecutor employed by a state agency, please indicate that agency: i.e. A.G.’s office, SBI, etc.)

   [OPEN TEXT RESPONSE]

5. What is your current job title?

   [OPEN TEXT RESPONSE]

6. How many years of experience do you have as a prosecutor?

   [OPEN TEXT RESPONSE, NUMERIC]

7. About how many assistant prosecutors are employed in your office?

   [OPEN TEXT RESPONSE, NUMERIC]

8. As of the end of this month, how long as the chief prosecutor in your district been employed in that capacity?

   [OPEN TEXT RESPONSE]

9. Please indicate your age.

   [<30 YEARS; 30-34 YEARS; 35-39 YEARS; 40-44 YEARS; 45-49 YEARS; 50-54 YEARS; 55-65 YEARS; 65 YEARS OR MORE]

10. Please indicate your sex and/or gender. Check all that apply.

    [CISGENDER; FEMALE; INTERSEX; MALE; NON-BINARY/THIRD GENDER; TRANSGENDER; TWO SPIRIT; OTHER/TEXT BOX]

11. Please indicate your race and/or ethnicity. Check all that apply.

    [ALASKAN NATIVE/AMERICAN INDIAN; BLACK/AFRICAN-AMERICAN; HISPANIC; NATIVE HAWAIIAN OR PACIFIC ISLANDER; WHITE; OTHER/TEXT BOX]

12. Has your chief prosecutor established a written drug charging policy that includes principles or frameworks for approaching potential drug induced homicide cases?

    [YES; NO; I DON’T KNOW]

    IF YES…

    1. Please list any classifications of the accused outlined in that policy (i.e. drug using friends vs. drug trafficker). If none, write “NONE.”
       [OPEN TEXT RESPONSE]
    2. Please list any aggravating factors outlined in that policy. If none, write “NONE.”
       [OPEN TEXT RESPONSE]
    3. Please list any mitigating factors outlined in that policy. If none, write “NONE.”
       [OPEN TEXT RESPONSE]

13. Does your office assign cases to prosecution teams that specialize in particular types of cases?

    [YES; NO; I DON’T KNOW]

    IF YES…

    1. Are you a member of a team that would be assigned drug cases?
       [YES; NO; I DON’T KNOW]
    2. Are you a member of a team that would prosecute homicides?
       [YES; NO; MAYBE]

14. Have you ever charged someone with drug-induced homicide?

    [YES; NO; I DON’T KNOW]

    IF YES…

    1. About how many times have you brought such charges in the past year?
       [OPEN TEXT RESPONSE]
    2. Of the charges brought in the past year, how many of those cases went to trial?
       [OPEN TEXT RESPONSE]
    3. About how many times have you brought such charges in the past 5 years?
       [OPEN TEXT RESPONSE]
    4. Of the charges brought in the past 5 years, how many of those cases went to trial?
       [OPEN TEXT RESPONSE]

15. Please use the slider below to indicate your agreement or disagreement with the following statements.

    [A SLIDER ACCOMPANIES EACH STATEMENT. EACH SLIDER RANGES FROM 0 ON THE LEFT TO 100 ON THE RIGHT. THE LEFT SIDE OF THE SLIDER IS LABELLED “STRONGLY DISAGREE.” THE RIGHT SIDE OF THE SLIDER IS LABELLED “STRONGLY AGREE.” THE MIDDLE OF THE SLIDER IS LABELLED “NEUTRAL.” THE CURSOR IS INITIALLY PLACED IN THE MIDDLE OF THE SLIDER BAR AT 50.]

    • Drug-induced homicide cases are a high priority for my office.

16. Why or why not?

    [OPEN TEXT RESPONSE]

17. Please use the slider below to indicate your agreement or disagreement with the following statements.

    [A SLIDER ACCOMPANIES EACH STATEMENT. EACH SLIDER RANGES FROM 0 ON THE LEFT TO 100 ON THE RIGHT. THE LEFT SIDE OF THE SLIDER IS LABELLED “STRONGLY DISAGREE.” THE RIGHT SIDE OF THE SLIDER IS LABELLED “STRONGLY AGREE.” THE MIDDLE OF THE SLIDER IS LABELLED “NEUTRAL.” THE CURSOR IS INITIALLY PLACED IN THE MIDDLE OF THE SLIDER BAR AT 50.]

    • I will file drug-induced homicide charges when evidentiary burdens are met, because it is my duty to enforce the laws in my jurisdiction.
    • I will file drug-induced homicide charges, when evidentiary burdens are met, because it is my duty to protect the public.
    • Public safety demands that drug-induced homicide charges be filed when evidentiary burdens are met.
    • The other prosecutors in my office are generally supportive of drug-induced homicide charges.
    • Members of the public in my area of jurisdiction are generally supportive of drug-induced homicide charges.
    • Law enforcement agencies in my area of jurisdiction are generally supportive of drug-induced homicide charges.
    • My office enjoys sufficient resources to successfully identify cases and pursue drug induced homicide charges.

18. Is there anything else you’d like to share about the level of support for drug induced homicide charges in your district? (If not, you may leave this space blank).

    [OPEN TEXT RESPONSE]

19. Below is a small subset of factors that may influence your decision-making as a prosecutor. This list is not meant to be exhaustive. Please use the sliders below to indicate how important each of the following factors would be when deciding to pursue drug-induced homicide charges in your jurisdiction.

    [A SLIDER ACCOMPANIES EACH STATEMENT. EACH SLIDER RANGES FROM 0 ON THE LEFT TO 100 ON THE RIGHT. THE LEFT SIDE OF THE SLIDER IS LABELLED “NOT AT ALL IMPORTANT. THIS WOULD NOT INFLUENCE MY DECISION TO BRING CHARGES.” THE RIGHT SIDE OF THE SLIDER IS LABELLED “VERY IMPORTANT. THIS WOULD GREATLY INFLUENCE MY DECISION TO BRING CHARGES.” THE MIDDLE OF THE SLIDER IS LABELLED “NEUTRAL.” THE CURSOR IS INITIALLY PLACED IN THE MIDDLE OF THE SLIDER BAR AT 50.]

    • The parents or family of the deceased have asked me to prosecute to the fullest extent of the law.
    • The deceased is a high-profile member of the community or a relative of one.
    • Public opinion in my district is generally in favor of prosecuting drug distribution crimes to the fullest extent of the law.
    • The defendant is already known to my office and/or local law enforcement as a drug distributor.
    • The defendant is a repeat offender.
    • The defendant displayed an articulable disregard for the life of the decedent.
    • The defendant is also implicated in other criminal activity not related or in addition to the current case.
    • The defendant allegedly distributed drugs containing fentanyl or other potent synthetic opioids.
    • The case is high profile and/or receiving significant media attention.
    • The drug-induced homicide charges might induce a plea agreement from the defendant in this case.
    • Bringing charges might convince the defendant to cooperate with law enforcement and disclose information leading to another arrest or induce other forms of cooperation with an ongoing investigation.

20. What other factors not listed here may influence your decision to charge someone with a drug-induced homicide? (If none, you may leave this space blank.)

    [OPEN TEXT RESPONSE]

21. What evidence do you look for or find most persuasive when deciding whether or not to charge someone with drug-induced homicide?

    [OPEN TEXT RESPONSE]

22. This section is meant to gauge your perceptions of how impactful charging persons with drug-induced homicide may be on your community. Please use the sliders below to indicate how likely you perceive the following outcomes to be after pursuing a drug-induced homicide charge for an overdose death.

    [A SLIDER ACCOMPANIES EACH STATEMENT. EACH SLIDER RANGES FROM 0 ON THE LEFT TO 100 ON THE RIGHT. THE LEFT SIDE OF THE SLIDER IS LABELLED “VERY LOW. DRUG-INDUCED HOMICIDE CHARGES FENERALLY WILL NOT PRODUCE THIS RESULT.” THE RIGHT SIDE OF THE SLIDER IS LABELLED “VERY HIGH. DRUG-INDUCED HOMICIDE CHARGES GENERALLY WILL PRODUCE THIS RESULT.” THE MIDDLE OF THE SLIDER IS LABELLED “NO EFFECT/NO STRONG OPINION.” THE CURSOR IS INITIALLY PLACED IN THE MIDDLE OF THE SLIDER BAR AT 50.]

    • Justice for the deceased will be served.
    • Justice or closure will be obtained for the family of the deceased.
    • Drug-induced homicide charges will increase public approval of my prosecutor’s office.
    • Substance use will be prevented or deterred in my district.
    • Drug distribution will be prevented or deterred in my district.
    • The risk of fatal overdose will be reduced in my district.
    • The distribution of illicit fentanyl will be prevented or deterred in my district.
    • Drug markets or drug distribution networks will be significantly disrupted in my district.
    • Other drug-related crimes (i.e. drug manufacturing, drug-related violent crime, etc.) will be prevented or deterred in my district.

23. What other outcomes not listed here could result from bringing drug-induced homicide charges for an overdose death? (If none, you may leave this space blank).

    [OPEN TEXT RESPONSE]

24. Is there anything important that we didn’t ask about? Please let us know what we missed and why it is important.

    [OPEN TEXT RESPONSE]