COSA addresses whether heroin distribution can support a conviction for involuntary manslaughter
Across the country, opioid use has reached epidemic proportions with often tragic results. Maryland is no different from the rest of America. To battle this deadly plague, many prosecutors are charging drug dealers with homicide when customers die from overdoses caused by the drugs sold by the dealers. And again, many Maryland prosecutors are pursuing that same strategy by lodging homicide charges against dealers. These efforts have earned media attention, as seen in articles such as Alison Knezevich, Maryland Prosecutors Pursue Manslaughter, Murder in Overdose Cases, Baltimore Sun (December 7, 2017), https://perma.cc/UJY8-QZZN; Arelis R. Hernandez, Selling Opioids in this Rural Maryland County Could Get You a Murder Charge, Washington Post (August 9, 2017), http://perma.cc/4N8D-ZF4Y; Al Baker, New Tactic in War on Opioids: Charging Dealers in Overdose Deaths, New York Times (July 23, 2017), https://nyti.ms/2tRsvTv.
Those three articles are cited in Maryland’s first reported appellate decision dealing with this issue, Patrick Joseph Thomas a/k/a Patrick Joseph Patrick v. State, No. 1115, Sept. Term, 2016 (Md. Ct. Spec. App. April 4, 2018). There, the defendant was found guilty, on an agreed statement of facts, of heroin distribution, involuntary manslaughter, and reckless endangerment. But the Court of Special Appeals reversed the manslaughter conviction, holding that the evidence was not legally sufficient to sustain that conviction. Writing for a panel that included Judge Andrea Leahy and Senior Judge Lawrence Rodowsky, Judge Daniel Friedman explained:
We do not prejudge future cases nor make any pronouncement about the trend [of homicide prosecutions]. Rather, we hold only that in prosecutions for involuntary manslaughter, the State must prove beyond a reasonable doubt the existence of a causal nexus between the defendant’s act and the victim’s death. Because it did not do so here, we will reverse the appellant’s manslaughter conviction.
Slip Op. at 1 (emphasis added) (footnote omitted).
The Court discussed the “two principal variants of involuntary manslaughter: unlawful act manslaughter; and grossly negligent manslaughter,” both of which were relied on by the trial court in convicting the defendant. Id. at 4 (emphasis in original) (footnote omitted). The first variant, unlawful act manslaughter, involves a death resulting from “the commission, attempted commission, or the escape from the immediate scene of” a crime that is malum in se. Id. at 5. A malum in se act is one that is “naturally evil as adjudged by the sense of a civilized community.” Id. (citation omitted) (internal quotation marks omitted). The act is inherently or per se wrongful, “without any regard to the fact of its being noticed or punished by the laws of the state.” Id. (citation omitted) (internal quotation marks omitted). On the other hand, an act is merely malum prohibitum when it is wrong only because it is specifically prohibited by statute. Those types of acts cannot support a conviction for involuntary manslaughter. The second variant of involuntary manslaughter, grossly negligent act manslaughter, “occurs when a defendant acts in a manner that is grossly negligent and causes the death of another.” Id. at 9 (citation omitted).
The Court explained that the prosecution had failed to prove either variant. The Court noted it had “not yet discovered a case that decides whether selling drugs is malum in se or malum prohibitum,” but it further acknowledged that drug distribution is not “prohibited by all civilized societies.” Id. at 6. To the contrary, “other drugs, with similar effects and similar risks to those caused by heroin, are routinely prescribed by doctors and sold by pharmacists.” Id. (citations omitted). Likewise, alcohol is a “drug with its own deleterious and addictive consequences if abused, but which the State chooses to regulate but not prohibit.” Id. (citation omitted). And the Court noted that recent changes in the laws regarding marijuana show that attitudes about that drug are changing. As the Court recognized, “[t]here are places in our world where drug use is treated as a public health problem rather than a criminal problem and, as a result, the distribution of even heroin in those places is highly regulated but not absolutely prohibited.” Id. (footnote omitted). The Court, however, did not reach that issue.
The Court based its decision instead on the State’s failure to show that the defendant’s act caused the decedent’s death – that “but for” the defendant’s unlawful act, the decedent would not have died. Id. at 7. Here, defendant was a user and seller of heroin. Late one night and early the next morning, he called or texted Colton Lee Maltrey several times. Later that morning, Maltrey was found dead, and next to him were “four empty, white wax paper bags stamped ‘Banshee’ in blue with a blue emblem.” Id. at 2. When defendant was arrested, he had sixty white wax paper bags containing heroin. Those bags bore the same stamp as the bags found near Maltrey’s body. Id. The medical examiner determined that “Maltrey died of alcohol and narcotic (free morphine) intoxication.” Id. In short, the evidence showed that the defendant sold the decedent four bags of heroin and that “at another time, in another place, Maltrey injected himself with an amount of heroin that he chose,” and he also used alcohol along with the heroin, “which may have intensified the effect.” Id. at 8. Given those circumstances, the Court held “that the State failed to establish a causal connection between Thomas’s sale of heroin and Maltrey’s death.” Id.
The Court mused that other scenarios might exist where a causal connection could be drawn between the sale of heroin and the victim’s death, e.g. “where the defendant determined the dose and personally injected the victim,” or possibly a situation where “the defendant adulterated the heroin (as with fentanyl) and the State can prove that the adulteration was the ‘but for’ cause of the victim’s death.” Id. at 8-9 (footnote omitted) (citations omitted). But “where the causal chain was broken,” as was true for the defendant’s sale of heroin to Maltrey, “there can be no liability for the unlawful act variant of involuntary manslaughter.” Id. at 9.
The State’s effort to save the conviction by relying on the grossly negligent act variant fared no better. For one thing, “the grossly negligent variant of involuntary manslaughter requires that the defendant’s act be the legal – ‘but for’ – cause of the victim’s death,” and as the Court had already discussed, “the required causal chain was broken.” Id. Furthermore, the State had failed to produce evidence legally sufficient to establish gross negligence. “Gross negligence is not just big negligence,” but instead involves “a wanton or reckless disregard for human life. . . . Only conduct that is of extraordinary or outrageous character will be sufficient to imply this state of mind.” Id. (citation omitted) (internal quotation marks omitted). As the State apparently conceded, “the sale of heroin, without more, is not gross negligence.” Id. at 10. As the Court noted “a drug dealer wishes for his customers to remain alive so that he may sell them more heroin.” Id. Plus, many low-level dealers are also users and addicts and would “have no rational interest in making the conduct more dangerous.” Id. And if every sale of heroin constituted gross negligence, criminal liability for manslaughter would be reduced “to a matter of mere fortuity,” depending on whether a particular seller’s customer died. Id.
The State argued that several facts collectively supported a finding of grossly negligent conduct. The State noted that the amount of heroin sold to Maltrey was a lethal dose. The State also noted that the defendant knew Maltrey was an addict, who “was young and less experienced than” the defendant. Id. at 11. The State further claimed that the defendant “was aware of the dangers of heroin use” and “that the circumstances of the sale – in the middle of the night, after Maltrey’s multiple, frantic attempts to contact Thomas were ‘weird.’” Id. The Court, however, summarily rejected that argument, holding “as a matter of law that these facts, if believed, are evidence of simple negligence, not the sort of gross negligence necessary to sustain a conviction for involuntary manslaughter.” Id.
The Court concluded its opinion on a cautionary note, remarking that while the facts before the Court were not sufficient to support a manslaughter conviction, the facts surrounding other heroin overdose deaths could conceivably support such a conviction:
We do not wish for this Opinion to be misunderstood. Thomas committed a serious crime and for it received a long sentence of incarceration of incarceration. That was no challenged and we do not doubt its correctness. Nor do we say necessarily that drug dealers categorically cannot be liable for involuntary manslaughter when their customers die. We say only that the facts of this case do not legally support the conviction.
Thanks Brad, it’s an interesting opinion. I see that some states have gone much further than Maryland, in using the regular manslaughter statute, particularly Ohio, in some quick research I did. In Federal Court, they focus on the penalty differently, as it’s been used as part of 21 USCS § 841 which has a severe penalty enhancement for drug crimes that result in death, and now must be submitted to a jury beyond a reasonable doubt. Additionally, under the Supreme Court’s decision of Burrage v. United States, 134 S. Ct. 881 (2014), for the overdose to apply the enhancement, the illegal drug distribution must be a “but for” cause of death.