We can’t arrest our way out of addiction.

North Carolina has maintained severe penalties for Heroin and other opiates for 36 years.  Maybe we have been doing it wrong?  Maybe we should approach this as a medical problem instead of a criminal problem?  Currently, our kids are dying and being sent to prison at shocking rates. 

 Heroin Trafficking History and Penalties in North Carolina.  The statutory provisions addressing drug trafficking, N.C. Gen. Stat. §90- 95(h)(2009) (App. 1-10), were first enacted in 1980. 1979 Session Laws Ch. 1251, sec. 6. The legislative intent behind the drug trafficking laws were clear: to come down hard on opiate trafficking, especially Heroin.  Those statues were supposed to be used against drug dealers who facilitate large scale flow of drugs.  Then Governor Hunt, who proposed the bill, said it was aimed at “big time drug dealers who had be drive to North Carolina by strong anti-drug laws elsewhere.”  It was NOT intended to change the penalties for small time offenders convicted of possession, manufacture, or sale of drugs in small quantities as provided in current laws.

NCGS § 90-95(h)(4)Any person who sells, manufactures, delivers, transports, or possesses four grams or more of opium or opiate, or any salt, compound, derivative, or preparation of opium or opiate (except apomorphine, nalbuphine, analoxone and naltrexone and their respective salts), including heroin, or any mixture containing such substance, shall be guilty of a felony which felony shall be known as “trafficking in opium or heroin” and if the quantity of such controlled substance or mixture involved:

  1. Is four grams or more, but less than 14 grams, such person shall be punished as a Class F felon and shall be sentenced to a minimum term of 70 months and a maximum term of 93 months in the State’s prison and shall be fined not less than fifty thousand dollars ($50,000);
  2. Is 14 grams or more, but less than 28 grams, such person shall be punished as a Class E felon and shall be sentenced to a minimum term of 90 months and a maximum term of 120 months in the State’s prison and shall be fined not less than one hundred thousand dollars ($100,000);
  3. Is 28 grams or more, such person shall be punished as a Class C felon and shall be sentenced to a minimum term of 225 months and a maximum term of 282 months in the State’s prison and shall be fined not less than five hundred thousand dollars ($500,000).

The threshold amounts necessary to trigger application of the most drug trafficking provisions reflect the legislative intent to address large-scale drug distribution in most areas. For marijuana, the minimum threshold is 10 pounds. §90-95(h)(1). For cocaine, methamphetamine, and amphetamine, the minimum amount is 28 grams. §90-95(h)(3), (3b) and (3c). For drugs measured by dosage unit, like LSD, MDA/MDMA, and methaqualone, for example, the minimum number of dosage units to trigger the lowest level of drug trafficking varies from 100 dosage units (LSD, MDA/MDMA) to 1000 dosage units (methaqualone). §90-95(h)(2), (4a) and (4b). With respect to the four gram minimum for trafficking in heroin or opium, §90-95(h)(4), the typical bag of heroin sold on the street contains 30 to 50 milligrams. Thus, possession of a minimum of approximately 100 bags of heroin is necessary to satisfy the minimum trafficking threshold. Evan M. Musselwhite, Comment, One Tough Pill to Swallow: A Call to Revise North Carolina’s Drug Trafficking Laws Concerning Prescription Painkillers, 33 Campbell L. Rev. 451, 470 (2011)

Opioid prescription painkillers did not come into common use until long after §90-95(h)(4) was enacted. Their common use began in 1986, when the World Health Organization recommended their use in pain management for cancer patients. However, “[o]pioid analgesics were not even widely prescribed for pain treatment in non-cancer patients until the mid-1990s.” Musselwhite, supra at 467.

At that point, their medical use increased dramatically by 402% between 1997 and 2002, id. at 456-457, as did the abuse of prescription pills, which also became a significant concern beginning in the mid-1990s. Id. at 467. Under these circumstances it is readily apparent that when N.C. Gen. Stat. §90-95(h)(4) was enacted in 1980, the General Assembly gave no thought to the potential application to prescription painkillers.

Now end users and small time dealers or pain pills are routinely caught with trafficking weights of “heroin” even though they may be possession of less than 100, or 20, or even 10 doses. Consequently, users and dealers are terrified of the police, because they may go to prison for 70 month for possession of even a small, personal use amount of pills.  Example: Vicodin/Hydrocodone 325 weigh .5 grams each, and most of the weight is acetaminophen (Tylenol). If you have 8 of those pills, you have 4 grams of heroin under a literal application of the heroin trafficking statute, which is unjust, but it happens all the time.   A valid Rx is a defense to the charge of trafficking, but it will not protect the teenagers and young adults who get into their grandparent’s supply.  That’s how it starts.  First pill popping, then snorting.  Shooting heroin is the last stage.

Clearly, this approach is failing.  And maybe the legislature is recognizing that.  In 2013 the legislature passed the Naloxone Access Law that makes it legal to possess and administer Narcone, and removes some of the legal dangers to the user and good Samaritan, when they call 911.  That statute was adjusted a limited in 2015, but it is essentially the same.

When you call 911 for help for a drug overdose, you and the person who overdoses are immune from prosecution for simple possession of small amounts of heroin, cocaine, drug paraphernalia, et cetera.  Contraband will be seized by the police, but possession of 1 gram or less shall not be prosecuted, pursuant to N.C.G.S. § 90-96.2.

Limited Immunity for Samaritan. – A person shall not be prosecuted for any of the offenses listed in subsection (c3) of this section if all of the following requirements and conditions are met:

  • (1) The person sought medical assistance for an individual experiencing a drug-related overdose by contacting the 911 system, a law enforcement officer, or emergency medical services personnel.
  • (2) The person acted in good faith when seeking medical assistance, upon a reasonable belief that he or she was the first to call for assistance. (3) The person provided his or her own name to the 911 system or to a law enforcement officer upon arrival.
  • (4) The person did not seek the medical assistance during the course of the execution of an arrest warrant, search warrant, or other lawful search. Page 2 Session Law 2015-94 Senate Bill 154-Ratified
  • (5) The evidence for prosecution of the offenses listed in subsection (c3) of this section was obtained as a result of the person seeking medical assistance for the drug-related overdose.

The immunity described in subsection (b) of this section shall extend to the person who experienced the drug-related overdose if all of the requirements and conditions listed in subdivisions (1), (2), (4), and (5) of subsection (b) of this section are satisfied.


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