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    Balancing Florida’s War on Drugs with Constitutional Constraints

    Andrew Tuma-Waku
    By Andrew Tuma-Waku

    On February 24, 2022, the Florida House voted and approved HB 95, which would make it easier for prosecutors to charge drug dealers with first-degree murder when a consumer suffers a fatal overdose.[i] This new bill was introduced to combat Florida’s ongoing war on drugs, as well as to deter drug dealers who “profit off the pain of Florida’s families” as dozens of Floridians die each day from drug overdoses.[ii]

    HB 95 would revise the elements that constitute the capital offense of murder in the first degree. Specifically, the bill would amend the “proximate cause” element with a “substantial factor in the death of the user” standard. Based on reports in 2018, 20 different states, including Florida, included some sort of drug-induced homicide law for unlawful distribution.[iii] Florida has always maintained an aggressive stance against drug-related conduct. Traditionally, Florida’s homicide law allows for charges of first-degree murder if a defendant provided consumers with a controlled substance and the consumer dies. As a result, drug-induced homicide or death by unlawful distribution is considered a capital felony.

    This new Florida legislation means drug dealers are charged at the same level as when someone kills another with premeditation or when committing a felony. With premeditated murder, the prosecution must prove the defendant took another’s life after a conscious decision. In contrast, for death by unlawful distribution, the prosecutor need only prove the accused defendant or drug dealer intended to deliver the drug. Generally, the prosecution must demonstrate that the accused drug dealer somehow supplied the victim with a specified controlled substance that was the proximate cause of the victim’s death. Therefore, it must be shown that the victim’s death would not have occurred if the accused drug dealer had not supplied the controlled substance and that the death was a “reasonable consequence of the drug dealer’s conduct.”

    During the Florida House debates, Rep. Plakon admitted prosecutors had requested the change because the “proximate cause” standard was too difficult to prove, especially when a victim’s blood contained traces of multiple substances. The amended bill would define a substantial factor where “the use of the substance or mixture alone is sufficient to cause death, regardless of whether any other substance or mixture used is also sufficient to cause death.”

    The legal ramifications of this new bill are likely to lead to challenges under the Due Process Clause, for cruel and unusual punishment, and under the Fifth, Sixth, Eighth, and Fourteenth Amendments. The new substantial factor standard indicates that it would be easier for prosecutors to subject drug dealers to a mandatory life sentence, or in theory, capital punishment, as the drug dealers would be charged with first-degree murder. Furthermore, the bill would be applicable to anyone 18 or older who unlawfully distributes a controlled substance, regardless of the defendant’s history.

    One of the cornerstones of the Sixth Amendment is that an accused will be informed of the nature and cause of the accusation, while the Fifth Amendment provides that no person shall be deprived of “life, liberty, or property,” without due process of law. Both Amendments ensure the right of an accused to receive fair notice of what he or she is being charged with. Challengers of the new bill are likely to argue that drug dealers’ rights are being violated on procedural grounds citing how the new bill would almost guarantee convictions. The substantial factor standard severely limits any alternative explanation or reason for the cause of death when a controlled substance is found to have played a part. This leaves drug dealers criminally liable as the sole cause of death due to distributing the controlled substance.

    In essence, the new bill offers greater protection for persons who consume illegal drugs, while making convictions of drug dealers easier. Further, under the Eighth Amendment, the government is prohibited from imposing unduly harsh penalties on criminal defendants as punishment for crime after conviction.[iv] The bill potentially has severe consequences for convicted accusers during sentencing as noted by representatives during the debates. Rep. Andrew Learnede, in particular, remarked that a result of the bill “means you [could] get the electric chair for this, not because they intended to murder somebody, but because you are a drug dealer.”

    Drug dealers who are convicted could now be subject to mandatory life sentences based on the bill, which would generally be considered excessive punishment under the Eighth amendment. Historically, both U.S. Congress and state legislatures have established harsh criminal penalties for drug offenses. However, challengers of the bill will likely argue the Eighth Amendment prevents the government from imposing unnecessary and disproportionate penalties on criminal defendants. Therefore, any sentence similar to a life sentence, which deprives freedom for an extended period, would violate a defendant’s rights. Mainly, because the punishment would be disproportionate to the crime of selling drugs.

    Despite criticism that the bill is leading down a “slippery slope,” the bill passed in the Florida House. A Senate companion bill, SB 190, introduced by Sen. Jason Brodeur, is also currently on the Florida Senate calendar for the upcoming weeks.[v] SB 190 revises the elements that constitute the capital offense of murder in the first degree, the elements that constitute the felony offense of murder in the third degree. An approval there could lead to the bill being enacted, further paving the way for easier drug convictions.

    [i] See Jim Ash, House Approves Measures to make it Easier to Obtain Conviction in an Overdose Death, Fla. Bar News (Feb. 24, 2022),

    [ii] See Michael Vitiello, The War on Drugs: Moral Panic and Excessive Sentences, 69 Clev. St. L. Rev. 441, 441 (2021).

    [iii] See Lindsay LaSalle, An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane, Drug Policy (2017),

    [iv] See Jaclyn Wishnia, 8th Amendment Limitations on Sentencing, LegalMatch (Aug. 19, 2021),

    [v] See Jim Ash, Measure Aims at Strengthening Penalties for Drug Dealers When Customers Die, Fla. Bar News (Jan. 12, 2022),


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