Commentary

Halsey Frank: Maine’s new, not-so-good Samaritan law

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Harm reductionists praise Maine’s new Good Samaritan law. I’m not sure it’s deserved. I will explain why because I don’t expect anyone else will.

Samaritans are believed to be descendants of three of the twelve tribes of Israel who worship their own version of the Mosaic Pentateuch. They consider other branches of Judaism corrupt. The tribes separated and became antagonistic for a variety of reasons such as jealousy and resentment, in addition to differences in doctrine.

A Good Samaritan is someone who is a good neighbor, who is merciful, who helps people in trouble notwithstanding their differences. Its meaning comes from the parable of the Good Samaritan as told by Jesus in the Gospel of Luke in the New Testament.

There, a lawyer asks how to interpret and apply the law in order to achieve salvation. Jesus responds by telling a story. In it, robbers have left a Jewish man from another tribe by the side of the road, stripped, beaten, and half-dead. He is ignored by both a Jewish priest and another Jew. A Samaritan takes pity on the victim, bandages his wounds, brings him to an inn, and takes care of him.

Good Samaritan laws are designed to encourage people to aid others in emergency situations and in need of help without having to worry about the possibility that they might be held liable if they are negligent in the way that they provide help. The public policy rationale is that overall, society is better off if people help each other in such situations. All 50 states, the District of Columbia, and the federal government have some version of a Good Samaritan law.

Maine has had a traditional Good Samaritan law since at least 1969. It applies to people who voluntarily provide assistance to someone who is in need without the expectation of compensation. It currently provides immunity from civil liability for money damages if the assistance provided is negligent. If the assistance provided is more careless than that, then the person rendering assistance is not immune.

Forty states and the District of Columbia go farther and have a version of Good Samaritan law that grants some degree of immunity from criminal prosecution to people who assist a person who overdoses on drugs. It is unclear whether such laws are effective. The evidence is mixed. (Admittedly, there is some evidence that such laws result in more calls for emergency assistance from overdose scenes and in more overdose victims getting to emergency rooms.)

In 2015, the Maine legislature tried to pass a Good Samaritan law that created an affirmative defense to prosecution for simple possession of drugs or paraphernalia for a person who sought assistance for someone experiencing an overdose, but Governor LePage vetoed it. In 2019, Maine enacted a version that applied to a person who in good faith sought medical assistance or provided naloxone to someone experiencing an overdose.

This year, Sen. Chloe Maxmin proposed expanding the immunity to cover any crime other than a violent one. That meant that the person who provided the drug that caused the overdose could immunize themselves from criminal prosecution by administering naloxone or seeking medical assistance. In response to Gov. Mills’ objections, the bill was amended to exclude from immunity more crimes. It still would immunize a person who caused the overdose by providing the drug.

The rationale is that the person who overdosed is sick, needs help, can’t get help if they are dead, and Maine is better off if we immunize even people who caused the overdose in exchange for saving the person who overdosed and getting them treatment. It presumes that addiction is a disease that can be cured with treatment and worth the cost of foregoing the deterrent effect of prosecuting someone who caused the overdose.

I don’t doubt that administering naloxone and calling for a first responder saves lives in the short term. The question is whether the current mix of policies favoring treatment and harm reduction and disfavoring law enforcement is sensible overall in the long run.

With the exception of a downturn in 2018 (354) and 2019 (380) when law enforcement increased its anti-drug efforts, Maine’s drug overdoses have been steadily increasing since 2011. They increased precipitously in 2020 (from 380 to 504) and 2021 (from 504 to 632). The increase occurred notwithstanding the fact that since 2019, Maine has emphasized harm reduction and treatment in general, and increased the availability of naloxone in particular.

The prevailing explanation for the spike in overdoses and deaths is a combination of the prevalence of deadly fentanyl and the pandemic. More specifically, the thinking is that measures taken to mitigate the spread of covid like social distancing, avoiding congregate settings like workplaces and places of hospitality, teleworking, and not traveling isolated and depressed people who then use drugs to self-medicate or alleviate their condition. Those measures, combined with a general anti-law enforcement attitude, also curtailed interdiction. Meanwhile, the supply of illegal drugs in general, and fentanyl in particular, increased because drug dealers don’t respect the law, much less the mitigation measures.

Harm reduction and good Samaritan laws, if not also treatment, are not the solution to those causes. They don’t decrease the supply of fentanyl or counteract mitigation measures and isolation. Arguably, they exacerbate the problem. They make drug use more available and socially acceptable. More people will try drugs, use drugs, and become addicted to drugs. The demand and supply will increase, as will the collateral damage associated with drug use: crime, dysfunction, lack of productivity, and family members and innocent bystanders caught in the figurative and literal cross-fire. Perversely, the prevalence of naloxone may increase overdoses as habituated users seek more intense highs believing they can be revived.

Law enforcement must be part of the solution. Without it, these illicit drugs will still find their way into our communities

Moreover, the current increase in overdoses began in the Fall of 2019. That was before the pandemic started and mitigation measures were implemented; after harm reduction, treatment, and naloxone had been increased; and at a time when social unrest motivated by anti-law enforcement attitudes had increased. In particular, the longer-term, general effect of increasing the availability of naloxone does not appear to have been positive. Total national sales have been increasing since 2015, the same time that overdoses and deaths have.

It’s far from clear that the expanded immunity in the new Good Samaritan law is a good thing.

About Halsey Frank

Halsey Frank was born and raised in and around New York City and nearby Englewood, NJ. He graduated from the Dwight Englewood School, Wesleyan University and the Boston University School of Law. After law school, Halsey worked for the Department of Justice for 34 years, first as a civil litigator and later as a criminal prosecutor and civil attorney in the U.S. Attorney’s Office for the District of Columbia. In 1999, Halsey moved to Maine where he worked as a civil attorney and criminal prosecutor in the U.S Attorney’s Office until 2017, when he was nominated by the President and confirmed by the Senate to be Maine’s U.S. Attorney, the chief federal law enforcement officer for the District of Maine. Halsey retired from the Department of Justice in February 2021. Prior to becoming a U.S. Attorney, Halsey was active in local affairs, including the Portland Republican City Committee, the Friends of Portland Parks, the Friends of the Portland Public Library and the Maine Leadership Institute. He previously authored a column entitled “Short Relief” that appeared in The Forecaster regional newspaper. His views are his own.

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