“Death Sentence:” Good Samaritan Overdose Prevention Act Expires in Political Tiff

samaritan“People are going to die,” said Rebecca McGoldrick, executive director of Protect Families First, describing the consequences of a bizarre political stand-off that, unwanted by anyone and unexpected by everyone, allowed the expiration of Rhode Island’s 2012 “Good Samaritan Overdose Prevention Act” that protected from criminal drug charges those who called for needed medical help, either for themselves or others, during a life-threatening emergency. The law also protected from criminal or civil liability those, including police officers and school staff, who administer life-saving drugs, such as naloxone (brand name Narcan), to treat an overdose.

The 2012 law had a built-in “sunset” provision that caused it to expire after June 30, 2015, unless explicitly renewed. After three years of experience there was nearly unanimous support for the law among legislators as well as public health experts and the medical community, but the renewal process became mired in a dispute about whether to expand the protections of the original law, and the General Assembly simply adjourned without sending either an expanded or an unexpanded renewal to the governor. “No one wanted the bill to die, but politics got in the way,” McGoldrick said. “It’s quite a shame that Rhode Island is the first state to have a ‘Good Samaritan’ law and lose it. I think this is an embarrassment.” She questioned why the law had a sunset provision in the first place, because “the General Assembly proved themselves incompetent to do the job that needs to be done” by renewing any version of the act.

McGoldrick’s group describes itself on the web as a “nonprofit organization that works to raise awareness about the human casualties of America’s destructive war on drugs” and says that she currently serves as a member of the Rhode Island Department of Health’s Overdose Prevention and Rescue Coalition and the Governor’s Council on Behavioral Health’s Prevention Advisory Committee. She singled out Attorney General Peter Kilmartin as “the only person opposed” to the “Good Samaritan” law, saying he “is in disconnect with state and local police” who favor it. On a personal basis, McGoldrick last October in The Providence Journal bluntly said, “Incumbent Kilmartin has opposed the life-saving Good Samaritan Law, which treats drug overdoses as medical emergencies rather than crime scenes. Essentially, Kilmartin would rather a family bury its loved one than encourage people to call 911 in the event of an overdose.” McGoldrick, despite her strong condemnation of Kilmartin, said, “A lot of the blame [for allowing the act to expire] does fall on the General Assembly as a body. They failed the state, and this is a death sentence for a lot of people.”

According to a June 17 report from the Trust for America’s Health at the Robert Wood Johnson Foundation, “Drug overdoses have become the leading cause of injury in 36 states, including Rhode Island, surpassing motor vehicle-related deaths. Nationally, drug overdose deaths have more than doubled in the past 14 years – resulting in 44,000 deaths per year, and half of those deaths (22,000) are related to prescription drugs. Rhode Island ranked seventh highest for drug overdose deaths – at a rate of 19.4 per 100,000 people.”

The move to expand protections under the law was crystallized by the widely publicized case of Veronica Cherwinski who in May 2013 returned from the store to find her 34-year-old boyfriend dead from an overdose. The day after he died, police arrested Cherwinski on an outstanding warrant from a 2010 charge of receiving stolen goods, and she spent over two months in prison. In August, a few months after Cherwinski was released, a friend overdosed while visiting Cherwinski’s Woonsocket apartment and Cherwinski ran downstairs to bang on the door of her landlord to get him to call 911. When police arrived to support medical personnel, they arrested Cherwinski on felony drug charges despite the “Good Samaritan” law. Because she was on probation resulting from the 2010 charge, she was held in prison for 24 days until a violation hearing. Someone on probation can be imprisoned as a violator for associating with people breaking the law, including illicit drug users, although they may not be breaking the law themselves. Cherwinski chose not to contest the violation and was sentenced to 30 days including the 24 days already served, which got her out 6 days later; had she contested the violation, she likely would have served more time in prison even if she won.

Immediately after the probation violation hearing, Cherwinski’s court-appointed lawyer asked the court to dismiss the felony drug charges, citing the “Good Samaritan” law, and a judge agreed. It was reported that, in February 2014, Woonsocket Police asked the attorney general’s office to renew charges against Cherwinski because it was the landlord, not Cherwinski, who had actually telephoned 911 – Cherwinski did not have a telephone – but after press attention that effort was dropped. The Providence Journal reported that on November 7, Cherwinski herself, after repeatedly being sent in and out of prison, died from an overdose at age 33. According to court records, because Cherwinski failed to appear for a hearing on November 21, a bench warrant was issued for her arrest on January 20, 2015; the next day, when the criminal justice system realized she had been dead over two months, the warrant was withdrawn.

The failure of the “Good Samaritan” law to immunize people calling for medical help against not just criminal charges but also probation violation charges was seen as a serious flaw by public health experts and medical professionals, and fixes were proposed simultaneously by Sen. Michael J. McCaffrey in the Senate – S.576 – and by Rep. Robert E. Craven Sr. in the House – H.5416 – that would expand protections to people on probation and also make the act permanent by eliminating the “sunset” provision.

Attorney General Kilmartin in an April 14 letter to the General Assembly objected to both changes, proposing to scale back rather than expand protections by restricting immunity to drug possession offenses only and not to delivery offenses. (In Rhode Island, “delivery” subsumes a wide variety of conduct that would not commonly be understood to constitute drug dealing, such as merely passing a marijuana joint hand to hand or sharing a needle.) “By providing immunity, this law… gives legal protections for those who are selling heroin and operating drug houses that enable heroin use,” Kilmartin wrote. Contradicting the formally stated judgment of the nearly unanimous community of public health professionals, including the RI Medical Society on behalf of itself and 18 other professional societies such as the RI Society of Addiction Medicine, the RI Psychiatric Society, and the RI chapters of the American Pediatric Association and the American College of Emergency Physicians, and also contradicting a separate formal statement by about 40 doctors organized by Josiah D. “Jody” Rich, MD, MPH, the attorney general argued that criminal prosecution of  “Good Samaritans” would be medically beneficial for them: “While I certainly appreciate the notion that the fear of arrest would prevent a person from calling emergency services in an overdose event, we must consider other issues. The immunity provided under this section ensures that there will not be a necessary intervention into the individual’s substance abuse disorder. Some may scoff at this suggestion, but by releasing a person who just suffered an overdose back to the streets; this almost enables the furtherance of the individual’s addiction issues. By having a law enforcement intervention, an individual can be court ordered to seek a substance abuse assessment or treatment as a condition of their bail or probation.”

As a result of Kilmartin’s objections, the Senate agreed to restore the “sunset” provision and extend the life of the act by two years until 2017, but still backed the expansion of protection to people on probation – S.576 Substitute A – and the amended version was passed unanimously, 32-0, on May 21. The House, however,  removed the expanded protections for people on probation and instead only renewed the 2012 law with no change other than to extend its expiration by two years until 2017 – H.5416 Substitute A – which passed unanimously, 71-0, on June 9.

In order for the General Assembly to send a bill to the governor to become law, both the House and Senate must separately pass textually identical versions. Even if both chambers pass similar but slightly different bills, these cannot advance until the differences are negotiated in some sort of compromise: either one chamber must pass unaltered the text that the other passed, or the same modified version must be passed anew by each chamber. Rhode Island has a part-time legislature that in the modern era meets only January through June, so all unfinished business crashed to the ground late on the evening of Thursday, June 25, when the two chambers gave up trying to work out compromises and packed up to go home for the year. The renewal of the “Good Samaritan” law was a casualty of this process. “It’s fair to speculate that had the attorney general not intervened and asked the House to pass the ‘Substitute A’ bill [without the expanded protection for people on probation], we would have a ‘Good Samaritan’ law because that’s why the bill had to go back” to conference between the chambers, McGoldrick said.

The expiration of the “Good Samaritan” act, despite overwhelming unanimous support among legislators for renewing some version of it, has created confusion and crisis. After investing considerable time and money to get naloxone antidote into the hands of police, school teachers, substance abuse counselors and many others likely to come into contact with overdose incidents where seconds could save a life, the law no longer protects them against criminal and civil liability if something goes wrong, such as an adverse or allergic reaction.

McGoldrick said she is seeking an executive order from the governor that would direct police to act as if the old law had not expired, but even that could not constrain the attorney general from filing criminal charges or protect first responders who administer naloxone. “What all of the legislators are missing is that the damage has already been done,” McGoldrick said. “Three years of public health education will be swept away. We had to do a lot of work to build trust in the community, and that has to be redone.”

Amy Kempe, communications officer for Attorney General Peter Kilmartin, said that she was unable to provide substantive comment by press time, but that a statement was being formulated.

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