A Willful Choice: The Ineffective and Incompassionate Application of Wisconsin’s Criminal Laws in Combating the Opioid Crisis

Abstract

Wisconsin’s drug-induced homicide law, known as the Len Bias law, was intended to prosecute for-profit drug dealers and was rarely charged for several decades after it was enacted in 1986. In recent years, prosecutors have brought hundreds of Len Bias charges in response to opioid deaths. Often, these charges are brought against overdose victims’ friends and family members — people who are also mired in addiction and who shared or helped obtain the fatal drug. In contrast, Wisconsin’s Good Samaritan overdose law (GSOL), enacted in 2014, focuses on harm reduction. If a person calls for help when another person is overdosing, the law provides both people with some insulation from prosecution of a range of drug-related charges. These laws approach the problem of overdose death from very different angles: The Len Bias law punishes addicts for their role in overdose deaths, while the GSOL offers addicts protection from prosecution in order to encourage calls for medical intervention in overdose situations. Unfortunately, the current implementation of the Len Bias law diminishes the potential of GSOL to save lives because addicts are faced the possibility of a homicide charge when they summon help for an overdose victim.

With the rise of lethal synthetic opioids in Wisconsin, the criminal justice system must adjust its current laws and practices in order to reduce overdose deaths. The criminalization of addiction represented by the Len Bias law thwarts rehabilitation efforts, miring addicts in a cycle of incarceration and drug use that ends with death in too many cases. This Comment proposes a solution: separating addicts from for-profit drug dealers in the eyes of the law by implementing a joint-user defense in Len Bias cases. Addicts are more likely to use opioids with other addicts than alone. By removing the possibility of a homicide conviction, addicts will more readily utilize the GSOL and call for medical intervention when a fellow addict is overdosing. Additionally, separating addicts from dealers allows the Len Bias law to be charged in accordance with its intended purpose, while freeing up investigatory and prosecutorial resources for the more complex task of investigating commercial drug dealers and disrupting the drug trade. This proposed solution would begin to align Wisconsin’s criminal laws with the state’s rehabilitation-focused public health efforts at combating opioid addiction in communities and reducing overdose deaths.