Drug overdose death rates have continued to rise, according to the Centers for Disease Control.
More than 52,000Americans died of a drug overdose in 2015, the majority caused by opioids. Since 2010, 30 states have experienced increases in opioid deaths and the increase in deaths from 2014 to 2015 can most likely be attributed to heroin and illicitly manufactured fentanyl.
In 2016 nearly every state enacted legislation addressing opioids, including heroin and prescription drugs, and in 2017 the majority of states have again enacted legislation on this issue. Policymakers have sought solutions that will help curb use and overdose by expanding access to treatment, increasing diversion opportunities and funding, modifying penalties, expanding Good Samaritan immunity, and increasing naloxone access.
Access to Naloxone and Immunity
Opioid overdoses can be reversed with the timely administration of a medication called naloxone. Naloxone is a “rescue drug” that has been approved by the FDA and can be administered in a number of ways that make it possible for a lay person to use. The drug has no abuse potential and counteracts the life-threatening effects of an overdose. Seeking professional medical assistance after administering naloxone, however, is important because it is a temporary drug and multiple administrations may be necessary if overdose symptoms return.
Often family and friends are in the best position to administer this lifesaving drug to their loved ones who overdose. Access to naloxone, however, was relatively limited until legislatures provided specific statutory protections for nonmedical professionals to possess and administer naloxone without a prescription. Providing medication to someone other than the at-risk drug user (called third party prescription) was usually prohibited and laws required a doctor-patient relationship to be established before direct prescription. Medical professionals and other interested parties have welcomed these new laws as a way to reduce the toll of the opioid epidemic and alleviate concerns about criminal, civil and professional liability.
New Mexico became the first state to enact legislation to increase access to naloxone in 2001. Since then every state has enacted a law to broaden access to naloxone. The majority of these provide immunity to medical professionals who prescribe or dispense naloxone or individuals who possess or administer naloxone. Most of these laws were passed within the last five years and promote the use of naloxone in addition to encouraging training and education on recognizing and preventing overdoses
By 2014 it was reported that more than 150,000 lay people had received naloxone information and rescue kits resulting in more than 26,000 reported overdose reversals. Legislation and regulation has also greatly increased access to naloxone for first responders and law enforcement officers.
Immunity for Calling 911 or Seeking Emergency Medical Assistance – Good Samaritan Laws
To encourage people to seek out medical attention for an overdose or for follow-up care after naloxone has been administered, 40 states and the District of Columbia have enacted some form of a Good Samaritan or 911 drug immunity law. These laws generally provide immunity from arrest, charge or prosecution for certain controlled substance possession and paraphernalia offenses when a person who is either experiencing an opiate-related overdose or observing one calls 911 for assistance or seeks medical attention. State laws are also increasingly providing immunity from violations of pretrial, probation or parole conditions and violations of protection or restraining orders.
The scope of what offenses and violations are covered by immunity provisions varies by state. Some states have opted for more restricted immunity while others, like Vermont, have provided immunity from a more expansive list of controlled substance offenses.
These laws often require a caller to have a reasonable belief that someone is experiencing an overdose emergency and is reporting that emergency in good faith. Good faith is often defined to exclude seeking help during the course of the execution of an arrest or a search warrant. Some laws also specify that immunity for covered offenses is not ground for suppression of evidence of other crimes. Other requirements frequently include remaining on scene until help arrives and cooperating with emergency personnel when they arrive.
Diversion, Treatment and Criminal Penalties
Defendants who may not qualify for Good Samaritan immunity as described above may be eligible for entry into a drug diversion program or drug treatment court for defendants identified as having substance use or addiction needs. The majority of states provide for such programs statutorily and many other programs have been created by local jurisdictions. States have also increasingly provided funding for these programs.
Related, states have also been expanding other treatment opportunities for justice-involved individuals with substance-related needs. Between 2015 and 2016, more than a quarter of the states funded, authorized or expanded medication-assisted treatment opportunities for people involved in the justice system. Additional information on recent diversion and treatment enactments can be found in the NCSL Pretrial Release Legislation Database or the NCSL State Sentencing and Corrections Database.
In addition to immunity, diversion, and treatment, 18 states have also specifically codified summoning emergency assistance during an overdose as a mitigating factor to be considered at sentencing. Other state actions have included modifying controlled substance penalties. For more information on recent changes to drug sentencing provisions visit NCSL’s Drug Sentencing Trends webpage.
Centers for Disease Control (CDC) Resources