New Jersey Drug-Induced Deaths: Introduction
New Jersey calls deaths that occur as a result of illicit drug distribution “drug-induced deaths”. N.J.S. 2C:35-9 is the New Jersey statute that deals with drug deaths. N.J.S. 2C:35-9 makes those who contribute to drug deaths by manufacturing, distributing, or dispensing drugs “strictly liable” for those deaths. Essentially, the Strict Liability for drug deaths, which arose from New Jersey’s own “War on Drugs”, creates a new type of homicide.
Under this concept of drug deaths, if someone dies because of the injection, inhalation, or ingestion of a “controlled dangerous substance” (CDS), the person who furnished that substance can be criminally prosecuted for that death. This is true even when the supplier had no reason to suspect that their actions could result in a death. N.J.S. 2C:35-9 still considers them legally accountable. On October 30, 2019, the National Association of Criminal Defense Lawyers (NACDL) presented an “advocacy call” devoted to this topic. Interested readers can listen to that presentation.
The specific drugs that invoke the New Jersey drug deaths statute are those found in Schedules I, II, and III of New Jersey’s drug classification. “Schedules” simply mean lists of drugs, catagorized by potential for abuse. Included in these designated schedules are drugs such as heroin, LSD, methamphetamine, PCP, and fentanyl. Schedule I is considered to include the drugs that are the most dangerous, and that have no redeeming social value. (Bizarrely, New Jersey, until February 22, 2021, kept marijuana in Schedule I despite the fact that, in all recorded human history, the number of people who have died as a result of marijuana overdose is zero. See N.J.S. 24:21-5(e)(1)).
Drug-Induced Deaths in New Jersey: The Connection
New Jersey holds the manufacturer, distributor, or dispenser criminally responsible when each of two factors are present:
1. That without the injection, inhalation, or injection of the substance, the victim would not have died; and
2. That the death was not too remote or too dependent on the actions of another person to still be considered a direct result of the drug or drugs.
Although a “strict-liability” crime, the situation of persons charged with a drug-induced death is far from hopeless. Various defenses are available for exploration despite the strict-liability label. These possible defenses include:
- It was someone else who was responsible for distributing, manufacturing, or dispensing the drugs in question;
- The drugs the defendant allegedly distributed were not the cause of the victim's death;
- The relationship between the distribution, manufacture, or dispensing of the drug and the victim's death was too remote; and
- New Jersey courts lack jurisdiction over the situation.
The remoteness defense is actually specified in N.J.S. 2C:35-9. “Remoteness” refers to the situation where an incident takes place that is too far removed in time or events to be considered a sufficient result of another action. By way of analogy, a person can start a small fire with the intention of burning garbage. If this fire spreads and ends up killing someone, it is not considered the fire-starter’s fault so long as unforeseen factors or events allowed the fire to spread.
Broken fire alarms and smoke detectors, non-fire-retardant carpets, and breezes coming in from open windows can all contribute to the fire's spread. The law would treat these factors as the ultimate cause of a person's death, not the fire-starter, because of the “remoteness” of the death from the fire-starter. In the context of drug deaths, “remoteness” is the idea that a death is too distant from the providing of the drug to still be considered a direct result of the manufacture, distribution, or dispensing.
The rules for liability in terms of remoteness differ in a major way from the standards for other kinds of homicide. With drug deaths, the willing actions of the victim to ingest, inhale, or inject a substance have no bearing on “remoteness”. Specifically, a victim's intervening action in ingesting a drug does not absolve the distributor.
The actions of another must be wholly unrelated to the ingestion, inhalation, or injection of a drug to remove strict liability for the victim's death. The mere fact that another person injects or aids the victim in taking the drug does not mean the victim's death was not a direct result of the drug. Although another person is involved, that involvement does not remove the causal relationship between the providing of the drug and the death of the victim.
Drug-induced deaths are not limited to overdosing. A person can die by another means who would have lived without the ingestion of the drug. In such situations, the drug is still considered the instigator for the death. For example, if a drug renders someone immobile in a dangerous situation, such as on a highway or on train tracks, and that person dies as a result, the drug is considered a non-remote cause of death, and the distributor can be prosecuted.
Drug-Induced Deaths in New Jersey: “Distribution”
“Distribution”, as defined by New Jersey, involves the actual, attempted, or heavily inferred delivery of drugs. All involved in a chain of distribution are considered liable under N.J.S. 2C:35-9. Thus if Person A delivers the drug to Person B who, in turn, delivers it to Person C, and so on, down to Person G, Person A could still be held liable for the death of Person G if the drug that Person A first distributed later causes Person G's death. However, the State has the burden of proving the chain of passage from the defendant to the victim, beyond a reasonable doubt, however long that chain may be. The longer the chain, the more difficult it will be for the State to establish that proof. Note that when possession of the drug or drugs is shared, distribution within the meaning of the drug-induced death statute is deemed not to have happened. Thus, in the case of joint-possession of a CDS, neither possessor is liable for the other's death.
Profit is not required for “distribution”. Drugs given as gifts to friends or partners are still considered as having been “distributed” by one person to another.
A person is liable for a drug-induced death even if they did not know their conduct would result in death. The distribution itself, however, must be done knowingly and purposely. In other words, there must be intentional distributing of the drug from one person to another.
Drug-Induced Deaths: New Jersey's Jurisdiction
It sometimes happens that death results from drug-distribution activities that began in New Jersey, but concluded elsewhere. Situations of that nature raise the issue of “jurisdiction.”A case that illustrates New Jersey's current interpretation of strict-liability jurisdiction for drug deaths is State v. Ferguson.
In Ferguson, defendant Byrd sold heroin to defendants Ferguson and Potts, in New Jersey. Those two buyers then went to New York where they, in turn, sold the New Jersey heroin to Cabral. Cabral overdosed in New York and died. New Jersey charged Byrd, Ferguson, and Potts with violating the strict-liability for drug deaths statute.
The trial court found that the two who distributed the heroin in New York could not be prosecuted under New Jersey’s strict-liability law, as neither the distribution to the victim nor the death itself occurred in New Jersey. But the trial court held that Byrd could be found guilty since his distribution did occur in New Jersey.
Under some circumstances, the fact that a person's conduct in New Jersey was part of a drug-distribution chain ending in a death would be sufficient to confer territrorial jurisdiction upon New Jersey courts. Since the heroin sold in New Jersey resulted in another's death, New Jersey could constitutionally claim jurisdiction. This is true even though the death occurred in New York, a state where there is no strict-liability for drug deaths statute.
To understand the significance of that fact, it is necessary to consider New Jersey's territorial jurisdiction statute. That statute is N.J.S. 2C:1-3(a)(1). What 2C:1-3(a)(1) says is that New Jersey can exercise territorial jurisdiction when either the defendant's conduct or the result of that conduct occurs in New Jersey and is an element of a criminal offense. Byrd's sale caused a result in a place where that result was not a crime. But Byrd distributed the heroin in New Jersey, and a death resulted from the distribution, even though the death was not in New Jersey.
Although the legislation passed under the “War on Drugs” is often overbroad and far-reaching, the courts in Ferguson did not interpret the intent behind the original legislation to ease typical jurisdiction rules. Without expanding existing territorial jurisdictional requirements, the state could not successfully prosecute Ferguson and Potts. This Ferguson decision is reported at 455 N.J. Super. 56 (App.Div., 2018).
Drug-Induced Deaths in New Jersey: Grading and Penalties
New Jersey classifies strict-liability for drug deaths as a first degree crime. The normal range of imprisonment upon conviction for a first-degree crime is ten to twenty years. Under the No Early Release Act, a defendant convicted of this crime must serve at least eighty-five percent of that time before becoming eligible for release on parole.
Drug-Induced Deaths under Federal Law
Drug-induced deaths are also criminalized under federal law. 21 U.S.C. § 841(b)(1)(C) specifies that, for a first offense, upon conviction of distribution of a Schedule One substance which causes a drug-induced death, the court must sentence the defendant to imprisonment for a minimum of twenty years, and a maximum of life, or a fine of up to one million dollars, or both.
On June 29, 2016, Therisa Ally died after ingesting heroin laced with fentanyl. Under federal law, heroin is a Schedule One substance. Ally had purchased the heroin from Jonathan Collins. Collins, in turn, had obtained it from Donte Jacobs. The government arrested and prosecuted Jacobs. A jury found Jacobs guilty. On appeal, Jacobs raised numerous issues. None succeeded. His case is reported as United States v. Jacobs, 21 F.4th 106 (3d Cir. 2021).
Drug-Induced Deaths in New Jersey: The Law Offices of Allan Marain
Strict-Liability for drug deaths statutes are found in almost no other state. Its penalties are of a severity reserved for the most serious crimes. The lawyers at the Law Offices of Allan Marain have the legal experience and skills necessary to defend individuals charged with drug offenses. They are available to review your drug-induced death matter.
