Attorney General Marty Jackley’s proposed bills are in the hopper—see Senate Bills 61 through 65.
Senate Bill 65, one of two get-tough-on-drugs measures from our gubernatorially campaigning A.G., appears to have implications for assisted suicide. You’ll recall that backers of legalized assisted suicide failed to collect enough signatures to submit an initiative to the 2018 ballot after facing angry and organized resistance from anti-abortion Republicans. Assisted suicide thus remains illegal in South Dakota—frowned upon by SDCL 34-12D-20 and a Class 6 felony under SDCL 22-16-37.
So let’s look at the two sentences SB 65 would add to our Controlled Substances and Marijuana chapter:
Any person who, for consideration, intentionally distributes any controlled substance or counterfeit substance in violation of this section and another person dies as a result of using that substance, the sentence for the principal felony shall be enhanced by increasing the class of the principal felony two levels. The enhancement may not exceed the sentence for a Class C felony [Senate Bill 65, requested by the Attorney General, 2018.01.05].
SB 65 obviously targets makers and dealers of illegal drugs. Cook meth, sell it, and if one of your customers dies from that meth, and we’ll jack your penalty up from Class 4 felony to Class 2; make meth that kills a kid, and your penalty goes from Class 2 felony to Class C (that’s life and $50K).
But consider the implications for assisted suicide. Suppose I obtain secobarbital, one of the commonly used assisted-suicide drugs in Oregon, where assisted suicide is legal for terminally ill patients. Secobarbital is a controlled substance, a Schedule II drug under SDCL 34-20B-16. I sell it to a terminally ill South Dakotan who takes it and dies from it. Under current law, I face Class 6 felony charges, for which I would enjoy presumptive probation. SB 65 appears to raise that penalty to Class 4 felony, which sends me to prison for sure.
SB 65 goes to Senate Judiciary for its first hearing (date not yet set). Its reasonable focus is meth, but we should listen to see if it has implications outside drug crimes to assisted suicide.
Cory
What about morphine? Is it a controlled substance? I know it is used to control pain in terminally ill patients and shortens their life. Would this change in the law apply to doctors, nurses, the person with power of attorney for health care decisions, hospital administration, who?
Good question, Francis. Morphine and other opiates are Schedule II drugs; they get a statute all their own, SDCL 34-20B-17.
I don’t think SB 65 would apply to doctors authorized to prescribe opiates. The statute SB 65 amends refers to the “Unauthorized manufacture, distribution, counterfeiting or possession of Schedule I or II substances.” If the doctor is making a legit prescription, SB 65 won’t snare the doctor. But if the doctor were to give out a fatal drug for an illegal use (like assisted suicide), SB 65 might kick back in.
What if a family member acquires secobarbital or any other assisted suicide drug and gives it to their loved one who self administers it? The family member received no consideration, will they be prosecuted?
Another good point, Nick! “for consideration” appears to exclude the situation to which you refer. But what about the dealer from whom the family member bought it?
That might require the family member telling where he got it. I could see the family member refusing to answer questions to protect the provider.
Could that lead to obstruction of justice or contempt of court charges?