Excerpted From: Scott Koven, Deserving Life: How Judicial Application of Medical Amnesty Laws Perpetuates Substance Use Stigma, 80 Washington and Lee Law Review 1745 (Fall, 2023) (322 Footnotes) (Full Document)

ScottKovenPublic health experts consider the current opioid crisis to be “one of the most devastating public health catastrophes of our time.” Since 1999, over one million people have died from drug overdose in the United States, with the majority of such deaths involving opioids. An even larger number of overdoses are nonfatal, and those who have suffered an overdose before are far more likely to have another. Further, over the last ten years, synthetic opioids, such as fentanyl, have taken over the illicit drug market and greatly exacerbated the harm.

Historically in the United States, substance use has been treated as a criminal problem, a behavior that is symptomatic of a lack of “personal responsibility.” Numerous scholars have examined the origins of this punitive response to substance use, beginning usually with the Reagan-and-Clinton-era War on Drugs and its underlying racial intentionality. As part of a targeted political strategy to garner White voters in the 1980s and 90s, Black and Brown communities have been socially and economically depressed by overincarceration, stemming in large part from the policies of the War on Drugs and the purposeful demonization of crack-cocaine use.

In contrast, the opioid crisis, which White people have died from at higher rates than Black people, has been framed in a completely new light. Politicians of all stripes have acknowledged that the opioid epidemic is, in fact, a “health crisis” requiring a public health response, and the media, in stark contrast to the crack-cocaine epidemic, has portrayed victims of opioid use sympathetically. Despite this shift in rhetoric, the zeal with which the War on Drugs was waged has left legislators and judges locked-in to a largely punitive method of addressing the (belatedly acknowledged) physiological nature of substance use. Further, these criminal laws have been counterproductive in addressing the problem of drug overdose because they deter individuals from seeking medical attention within the narrow window available to apply life-saving treatment.

In response to this problem, nearly all state legislatures have adopted medical amnesty laws (“MALs”), or “Good Samaritan” laws, which offer varying forms of protection from criminal punishment for individuals who in good faith seek medical assistance during an overdose event. In general, MALs have had the effect of reducing drug overdose deaths. But many of these laws have “fatal shortcomings” that inhibit their life-saving potential. A few scholars have examined the ways that many MALs expressly limit who may receive protection and the breadth of protection available, thereby frustrating the statutes' fundamental purpose of encouraging life-saving treatment. This Note extends that conversation by examining, for the first time, issues arising in the judicial application of MALs. In particular, two issues--(1) whether an amnesty-seeker's subjective belief of overdose is sufficient to trigger protection or whether belief of overdose must pass an objective test, and (2) whether the amnesty-seeker must litigate and bear the burden of proving their entitlement to protection--have significant implications for a Good Samaritan or overdose victim's prospects of receiving amnesty. In the same way that many MALs offer a narrow scope of protection, judicially-created standards that require an amnesty-seeker to extensively litigate their position and prove their entitlement to protection fundamentally frustrate the purpose of medical amnesty by creating hurdles--and thus deterrents--to seeking critical aid.

This Note also extends the conversation on MALs by connecting it to the body of scholarship on the particular and devastating harm drug criminalization and the “personal responsibility” narrative have caused to Black and Brown communities. Several scholars have poignantly observed the stark differences between the framing of the opioid epidemic and the framing of drug epidemics in the past. But this scholarship has, until now, not overlapped with conversations on medical amnesty. Specifically, this Note argues that, although widespread adoption of MALs is an important step in the right direction, legal barriers to accessing medical amnesty, whether through heightened judicial standards or through narrow statutory scope, reflect the racist “personal responsibility” narrative of the War on Drugs by effectively presuming that substance use is a criminal issue. MALs are intended to shift substance use disorder from the criminal and normative realm into the sphere of public health. But just as criminal drug laws assume that someone suffering from substance use disorder is deserving of punishment, barriers to accessing MALs--such as requiring an overdose victim to litigate and prove their entitlement to protection--reflect a similar normative judgment that an overdosing individual must deserve protection from criminal punishment. Thus, barriers to medical amnesty work in the same, misguided direction as traditional drug laws.

Part I begins by examining the historical and social context into which MALs have entered. Because substance use has historically been treated as a moral issue in the United States, Part I necessarily provides an overview of the criminalization of addiction. It then examines the sudden rise of the opioid crisis and the stark shift in social and political discourse that surrounded it.

Part II relies on other scholarship to introduce the varying structures of medical amnesty laws in the United States. Specifically, it examines how statutory language expressly limits the type of protection available and who is covered.

Part III adds to the existing scholarly dialogue on medical amnesty by discussing the issues of whether an objective or merely subjective belief of overdose is necessary to receive protection and the procedural application of MALs. It introduces these issues through the lens of a recent case that was heard twice by the Court of Appeals of Virginia, Morris v. Commonwealth, and it goes on to examine how these issues have played out in various other state proceedings. The discussion in Part III illustrates how judges are capable of limiting access to medical amnesty and frustrating the purpose of these laws.

Finally, Part IV connects the examined hurdles to accessing medical amnesty to the broader context of the criminalization of addiction. It argues that legislatures should remove the statutory construction ambiguities discussed in Part III to create a broad, simple protection, with a view toward repairing the damage wrought by the “personal responsibility” narrative and traditional drug laws. Until then, judges should interpret ambiguities in MALs in light of their purpose and historical context. This Note ultimately advocates for treating medical amnesty as a jurisdictional limitation on a court's power to hear the case, removing the deterrent to Good Samaritans and overdose victims of having to work their way through the judicial system to gain protection.

[. . .]

Medical amnesty laws reflect the principle that saving lives is more important than prosecuting drug offenses. They reflect an implicit acknowledgement that drug criminalization and militarized enforcement have failed to better the public health.

This failure makes perfect sense in light of the fact that the original impetus behind drug laws was not to right a “moral wrong”--even if public discourse ultimately adopted that position--but instead was intended to galvanize oppositional racial sentiments in White voters. Black and Brown communities have been deeply harmed by discriminatory enforcement and disproportionate incarceration. Now, in addition, prescription and synthetic opioids have proliferated throughout the nation, exacerbating the public health crisis and creating additional opportunities for drug-related punishment.

Legislators owe it to their communities, and particularly to communities of Color, to repair the damage done by drug laws--medical amnesty is one small step. Despite having a crystal-clear purpose, complex and esoteric provisions and needless restrictions in their application prevent the potential benefit of these statutes from being realized. Each limitation creates a greater likelihood of either incarceration for someone needing medical treatment and social stability, or death. As long as these complex provisions remain, courts, in the vein of Morris I, Markun, and Justice Earls's Osborne concurrence, must acknowledge the purpose of these laws and the real-world harm of creating barriers to immunity. Legislators should remove this issue from the realm of the courts, however, and simplify their statutes, conferring broad immunity, trusting in an individual's “good faith” belief, and removing the court's power to hear the case until prosecutors can show the statute's inapplicability. In so doing, legislatures will truly advance the principle that life is more important than punishment.

J.D. Candidate, Class of 2024, Washington and Lee University School of Law.