Brief of the Committee For Public Counsel Services and the Health in Justice Action Lab at Northeastern University School of Law Joined by Massachusetts Association of Criminal Defense Lawyers as Amici in Commonwealth v. Jesse Carrillo, No. SJC-12617

Abstract

This brief was filed in the case Commonwealth v. Carrillo to address two issues. One, whether the evidence in the case warranted a finding that the defendant's distribution of heroin to the deceased, Eric Sinacori, was wanton or reckless in the circumstances of this case, thus justifying the defendant's conviction of involuntary manslaughter. Secondly, where it was alleged that the defendant procured heroin for the deceased, a college classmate, and the defendant was charged on that basis with distributing the heroin to the victim, whether the judge erred in declining to instruct the jury on the lesser offense of simple possession for personal use based on a joint venture.

The amici argue that Carrillo's purchase of heroin from his usual supplier for a fellow heroin user was not "wanton or reckless." Severe substance use disorder is a chronic illness in which changes in brain circuitry and physical tolerance to the drug drive a person to daily, compulsive use as if life depends upon it. Carrillo and Sinacori both suffered from heroin addiction, and thus Carrillo's purchase of heroin from his known supplier for Sinacori was not "wanton or reckless," but rather an act to manage the illness. Consistent with this Court's holding that drug use alone is insufficient to establish a "likelihood of serious harm" in the civil commitment context, purchasing heroin for an opioid-addicted individual is insufficient to establish a high degree of likelihood that substantial harm will result. To hold that providing any heroin automatically creates a high degree of likelihood that substantial harm will result to another unjustly creates a strict liability crime.

Secondly, consistent with legislative intent, the deceased engaged in joint venture possession by having Carrillo purchase heroin for him with their collective money; therefore, it was error for the judge not to instruct the jury on the lesser included offense of simple possession. In public health terms, prosecuting opioid users for accidental overdose deaths actually increases the risk of future fatalities, undermining the Commonwealth's prevention efforts.

Keywords: opioids, accidental death, overdose, criminal liability