Before the legislative session concludes, Beacon Hill lawmakers will pass Governor Baker’s CARE Act, an important bill boosting services connecting overdose patients in the ER to recovery services. But the Care Act suffers from a critical omission: it leaves broken the Commonwealth’s limited Good Samaritan Law, which has failed to protect those who seek help during an overdose. Reforming the law is needed to ensure that patients call 911 in the first place.

The Good Samaritan Law is intended to protect people who call 911 from legal punishment, since studies show that fear of arrest stops bystanders from calling for help.  Politicians around the state have touted the law as doing just that. In May 2016,  Attorney General Healey and Governor Baker unveiled a $250,000 campaign encouraging bystanders who witnessed an overdose to “Make the Right Call.” The state distributed posters promising those who call 911 that “The Law Protects You.”

[Image: MA’s Department of Public Health  “Make the Right Call Poster”. Poster Text: “You might be high. You might be afraid. If you see an overdose call 911. The Law protects you.”]

Unfortunately, this is not true. The Good Samaritan Law that took effect on August 2nd, 2012 only narrowly exempts bystanders who call 911 and those who need medical attention from charge or prosecution for drug possession. What it does not do is protect bystanders or patients from being arrested, charged, or prosecuted for any offense other than drug possession. According to the Network for Public Health Laws, the Good Samaritan Law in Massachusetts—unlike progressive bastions like Nevada and Tennessee—does not preclude  arrest or prosecution for other crimes including, mindbogglingly, possessing drug paraphernalia. Nor does it confer protection from civil asset forfeiture, prosecution under any outstanding warrants, or violations of probation or parole.

Indeed, under the Massachusetts law, a person can still be arrested for simple drug possession, but not charged or prosecuted. The problem is, once a person is arrested for drug possession, that contact with the criminal justice system can lead to interviews, searches, and sanctions for unrelated crimes, including unpaid court fees or parole violations. What’s more, it is up to a prosecutor to determine whether you were a worthy Good Samaritan or not—something which can hinge on whether or not your drug possession was with intent to distribute. In our criminal justice system, such discretion usually leads to unequal outcomes across zipcodes, races, and economic strata.

Moreover, several cases illustrate how calling 911 for an overdose can lead to arrest, despite the Good Samaritan Law. In Attleboro, January 2013, a man who called 911 to report an overdose was arrested on drug possession charges. Though the drug possession charges were dropped under the Good Samaritan Law, he faced a three year sentence on an outstanding warrant in another state. In Swampscott, August 2014, police responding to a heroin overdose 911 call found that the residents were manufacturing cannabis oil (hash) in their house. Detectives shared pictures of the hash with the DEA and then arrested the residents on charges related to hash, heroin, and an unlicensed firearm. In Taunton, March 2016, a man called 911 to seek medical assistance for a woman who overdosed. When police arrived, the caller himself was protected by the Good Samaritan Law. But police arrested another person at the house—who hid under a blanket  in the bathroom—on an outstanding warrant. In Brockton, in April 2017, someone called 911 to report an apparent overdose of an unconscious man. When police arrived, he had woken up. Officers searched his truck and arrested him for drug possession and driving without a license.

Newspapers document these and many, many, other such cases where a witness’s call for help  is met with punishment. These cases of what can go wrong if you call for help fuel the apprehension about police that discourages calling 911 at all, a concern which is acute among Blacks, who may be especially wary of calling the police. (In Massachusetts, overdose mortality is rapidly increasing among Blacks). Undocumented residents and those close to them may also have reason to worry.

Expanding the protections of the Good Samaritan Law is essential to ensuring that medical emergencies are not treated like crime scenes. Though politicians around the Commonwealth promise that the law will protect you if you call 911, the experiences of some of our most vulnerable disagree.