By Alli Burgdorf
Executive Summary
In the United States, the leading cause of accidental death is accidental drug overdose (LaSalle, 2017). Overdose deaths are often preventable yet continue to increase in our current opioid epidemic. One way both federal and state governments have attempted to reduce overdose deaths is through Drug-induced Homicide (DIH) laws. DIH laws were first introduced on the federal level as part of the Anti-Drug Abuse Act of 1986, which created a [Penalty] charge ranging from 20 years to life in prison for the person who dispenses a controlled substance that results in overdose death, or serious bodily injury. This led to states, including Wisconsin, adding similar laws to their own legislature. While DIH laws claim to prevent the sale and use of illegal substances as well as overdose deaths, there is no evidence to support this (LaSalle, 2017). This brief will examine the issues with DIH law in Wisconsin, provide evidence-based policy alternatives, ranging from the removal of this law to increased harm reduction services and education, and propose a recommendation to enact more harm reduction services with the long-term goal of the eventual phasing out of DIH law in Wisconsin.
Current Policy
The 1987 Wisconsin Act 339 created Statute 940.02, a DIH law more commonly known as the ‘Len Bias law’ (1987 Len Bias Law). This was named in tribute to famous college basketball player Len Bias who died from a cocaine overdose two days after being drafted to the Celtics National Basketball Association team (Grady, 2020). His friend who supplied him with the cocaine was indicted for his role in Bias’s death but was not charged. This angered many people who believed his friend should have been held responsible for Bias’s death. This incident, combined with a sense of urgency to address the rapidly increasing overdose deaths, led Wisconsin policymakers to put Statute 940.02 into law.
DIH laws like Wisconsin’s Len Bias law aim to reduce the number of overdose deaths by incapacitating drug dealers through incarceration. In Wisconsin, this charge is first-degree reckless homicide with a sentence of up to 40 years of imprisonment and up to a $100,000 fine (Len Bias Law, 1987). Although codified in the late 1980s, the Len Bias law wasn’t often utilized at that time. It wasn’t until the 2000s, as heroin use rose, that prosecutors began to turn to the Len Bias Law in an attempt to deter the sale and use of heroin and other narcotics. Prosecution of dealers through the Len Bias law has continued to increase, with the number of cases where it is used increasing steadily each year (LaSalle, 2017). Wisconsin is the leading state in prosecuting these cases, as seen in the image below.
Prosecution of DIH by state, 2011-2016 (LaSalle, 2017)
Analysis of Len Bias Law
Wisconsin’s Len Bias law was created to deter and incapacitate dealers, decrease overdose deaths, and decrease drug sales. However, there is no evidence to support any of these claims. Instead, it has increased sentencing and racial disparities, wasted valuable resources, and increased stigma around substance use disorders. Usage of Len Bias law increased from 2000 to 2016. However, from 2005-to 2015, drug overdose deaths increased by around 70% (LaSalle, 2017). If this law were acting as a deterrent, we would expect to see a decrease in overdose deaths. One reason for this is that in its execution, the law does not actually reach high-end dealers. Instead, nearly 90% of cases were for family and friends of the victim selling to fund their own substance use disorder (Grady, 2020).
Sentencing and racial disparity
The Len Bias law also intensifies sentencing and racial disparities. From 2000 to 2017 of counties that charged at least 10-drug induced cases, Ozaukee County gave an average sentence of 11 years in prison while Manitowoc County provided an average of 3 years. This shows that the Len Bias law allows for a high level of prosecutor discretion. This concern is coupled with concerns regarding racial disparity. The criminal justice system is known for its disparate impact on Black Americans, and Wisconsin leads the country in this disparity. Wisconsin has the highest incarceration rate for Black adults in the country, with Black Wisconsinites being twelve times more likely to be incarcerated than White Wisconsinites (Nellis, 2021). The prosecutor’s discretion of the Len Bias law increases the likelihood of Black Wisconsinites facing harsher punishments for the same crime.
Wasted resources
Len Bias laws that incarcerate dealers clearly do not achieve their goals of decreasing overdose deaths and drug-related charges. This makes them a waste of valuable resources. Incarceration is extremely expensive, especially when compared to treatment alternatives. Treatment Alternatives and Diversions (TAD) are approximately four times cheaper than incarceration (WISDOM, 2013). Harm reduction programs and services can save Wisconsin even more by keeping people from needing these services in the first place. As discussed earlier, those charged under the Len Bias law are often low-level dealers who have a substance use disorder (SUD) of their own. The money saved by putting fewer people with a SUD into the correctional system could be spent on harm reduction practices and education to reduce future substance-related costs and health risks.
Increased stigma
The final way in which the Len Bias law creates more harm than good is in its effect on increasing stigma among substance use disorders by criminalizing them. Substance use disorders are mental health disorders created by behavioral and physical changes to the brain that cause addiction beyond a person’s control (The National Institute of Mental Health 2021). By imprisoning people with SUD, we are criminalizing an illness and the people suffering from it rather than treating it. The Len Bias law has not decreased substance use, dealing, or overdose deaths. Wisconsin alone has made up 20% of all DIH media in the United States each year since 2011 (LaSalle, 2017). This media attention risks spreading misinformation about people with substance use disorders by portraying them as criminals rather than people with a treatable illness.
Proposed Policy Options
While the Len Bias law currently has a negative impact on Wisconsin economically and from a public health perspective, there are multiple ways this effect can be mitigated or eradicated. Below are multiple policy alternatives to consider:
1. Removing or proposing a change to the Len Bias law
Removing statute 940.02(2) from the Wisconsin legislature is the least feasible policy option. If Len Bias law were removed, persons calling 911 to prevent an overdose while under the influence of an illegal substance would be protected from persecution under Wisconsin’s Good Samaritan law. However, the legislative process to strike down a law is complex and time-consuming. A slightly more feasible alternative to removing the Len Bias law is adding more nuance and regulation to its execution. Len Bias law could be altered to only be applicable under certain circumstances such as if the dealer sold the victim laced product with malicious intent. Even if a proposal for a bill were to be created, it would be extremely difficult for it to pass and be codified. Stigma and lack of education on evidence-based drug treatments play a large role in the opinion of both the public and policymakers.
2. Improve existing SUD services and education
This policy option avoids the time-consuming task of changing or eliminating the Len Bias law. Instead, its aim is to decrease overdose deaths. This would have a secondary impact on Len Bias law by putting fewer people in a situation where this law would be needed. This option is much more acute. SUD treatments and harm reduction practices are evidence-based and can help connect substance users to proper treatments and services. There are two main ways to do this:
2a. Implement educational programs around SUD
Increasing education around substance use disorders and treatment is a way to educate the public on the effectiveness of alternatives to incarceration. This could take on many different forms, such as a school-based presentation, a program for parents of children with SUD, or a course on how to administer Narcan (discussed more below). These efforts may gradually change public and policymaker opinion until a future period in which Len Bias laws may be reconsidered at the legislative level.
2b. Increase SUD services and accessibility
By increasing access to SUD and harm reduction services, more overdose deaths will be prevented entirely. A specific example would be to increase Medically Assisted Treatment (MAT) options. MAT is proven to increase rates of recovery in people with SUD (The National Institute of Mental Health 2021). An existing harm reduction service is Wisconsin’s Syringe Services Program provides clean syringes as well as disposal boxes (Public Health, Madison & Dane County). This can help to decrease blood-borne illnesses, tetanus, and other harm that may come from using dirty needles for drug use. This program also provides free Narcan and overdose training. Narcan is a nasal spray with the ability to completely reverse certain drug overdoses within just 2-3 minutes of its application. Increasing the availability of these services throughout Wisconsin can decrease the number of preventable overdose deaths.
Policy recommendations
The current best option is to improve treatments and harm reduction practices around substance use disorders. Changes to existing law are complex, time-consuming, and require the cooperation of many different actors. People facing substance use disorders are not receiving adequate treatment now, so a more acute policy implementation is needed. Improving harm reduction practices is currently very politically feasible. The finalized 2021-2023 Wisconsin state budget includes multiple budget increases to these services. (Department of Administration, 2021).
The state has also recognized specific areas in need of more services. The map to the right shows the identified areas of concern that would benefit from MAT. Making Medically Assisted Treatment available throughout Wisconsin can ensure people with substance use disorders have access to this form of treatment, which reduces their risk of overdose death.
Conclusion
In 1987, Wisconsin enacted the Len Bias law so that when someone overdoses on a substance, the individual who gave them that substance is penalized. This was supposed to incapacitate drug dealers and deter future drug sales and use. In action, this law incarcerated almost entirely low-level dealers with personal relationships to the victim and no malicious intent. These prosecutions did not have a notable impact on drug sales or overdose deaths as the number of overdose deaths increased rapidly from 2000-to 2015 and continues to rise. To combat this ineffective policy, the alternatives of eradicating or changing the law, improving substance use disorder education, and improving substance use disorder and harm reduction practices were considered. The final policy recommendation is to focus on improving access to evidence-based SUD programs such as MAT and the Syringe Services Program. Providing immediate access to these programs is vital to decreasing preventable overdose deaths in Wisconsin.
Sources
This policy brief pulls the majority of its content from the Drug Policy Alliance 2017 report ‘An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane’. A full list of citations can be accessed on the next page.
References
Department of Administration. (2021, February). 2021-23 Executive Budget. State of Wisconsin. Retrieved December 14, 2021, from https://doa.wi.gov/budget/SBO/2021-23%20How%20to%20Read%20the%202021-23%20Executive%20Budget.pdf
Grady, S. (2020, July 28). “it’s been used more and more,” but is Wisconsin’s Len Bias Law an effective deterrent to opioid abuse? FOX6 News Milwaukee | Wisconsin & Local Milwaukee News WITI. Retrieved December 14, 2021, from https://www.fox6now.com/news/its-been-used-more-and-more-but-is-wisconsins-len-bias-law-an-effective-deterrent-to-opioid-abuse
LaSalle, L. (2017). An overdose death is not murder: Why drug-induced homicide … Drug Induced Homicide Report. Retrieved December 14, 2021, from https://drugpolicy.org/sites/default/files/dpa_drug_induced_homicide_report_0.pdf?source=post_page
Nellis, A. (2021). Racial and Ethnic Disparity in State Prisons. The Color of Justice. Retrieved December 17, 2021, from https://www.documentcloud.org/documents/21084578-the-color-of-justice-racial-and-ethnic-disparity-in-state-prisons
Public Health Madison & Dane County. (n.d.). Syringe Services Program. Health Services. Retrieved December 17, 2021, from https://www.publichealthmdc.com/health-services/syringe-services-program
The National Institute of Mental Health. (2021, March). Substance use and co-occurring mental disorders. National Institute of Mental Health. Retrieved December 17, 2021, from https://www.nimh.nih.gov/health/topics/substance-use-and-mental-health#:~:text=A%20substance%20use%20disorder%20(SUD,drugs%2C%20alcohol%2C%20or%20medications.
Wisconsin state Legislature. 940.02 First-degree reckless homicide (1987). Retrieved December 17, 2021.
WISDOM. (2013). Wisconsin Treatment Alternatives to Prison. WISDOM. Retrieved December 18, 2021, from https://humanimpact.org/wp-content/uploads/2017/09/WI-Treatment-Alternatives-to-Prison-HIA.pdf