dissenting.
I respectfully dissent in part from the majority opinion because reckless homicide is a viable and appropriate avenue to address Lofthouse’s conduct under the facts presented. I would affirm the conviction in all respects.
The legislature of this Commonwealth promulgated KRS 507.050 defining reckless homicide, and in so doing fashioned a tool responsive to a broad range of conduct which, while not culpable to the same degree as intentional or wanton murder, still demands proportional condemnation.
The gravamen of the offense is the failure to perceive a substantial and unjustified risk when such failure is a gross deviation from the standard of care that a reasonable person would observe in the situation. It is obvious that no specific intent that the act or omission cause injury is required. Nor is there any requirement to show a subjective realization on the part of the actor that his conduct creates a substantial risk.
Robinson v. Commonwealth, Ky.App., 569 S.W.2d 183 (1978). Lofthouse exhibited just such a mental state in knowingly providing a lethal combination of Schedule I and Schedule II narcotics to the victim, and his actions sit squarely within the parameters of KRS 507.050.
Kentucky’s reckless homicide provision is focused on the actor’s subjective failure to perceive a substantial and unjustifiable risk that a result will occur or a circumstance will exist as a result of his behavior. KRS 501.020(4). See Elliott v. Commonwealth, Ky., 976 S.W.2d 416 (1998). The concentration then is necessarily on the mental state of the actor, not on the act itself. The argument by Lofthouse that language from People v. Pinckney, 38 A.D.2d 217, 328 N.Y.S.2d 550 (N.Y.App.Div.1972), appears to suggest a different approach by pointing out that, generally speaking, heroin injection does not induce death is vacuous. Typical outcomes, though one possible factor in the actor’s assessment of risk, are not the correct measure of his mental state. In order to comport with the meaning of reckless homicide in this state, it is irrelevant whether or not heroin injection is inexorably bound in the collective conscience with death, but whether the actor should have been on notice of a substantial and unjustifiable risk in this particular case.
Moreover, the Pinckney, supra, reasoning as to the objective risks of heroin use is dubious. The high mortality rate associated with the injection of heroin, its variable potency, and the fact that even where the same volume of the drug is injected, minor disruptions in a user’s patterns or circumstances of use can mean the difference between a high and an overdose, are common knowledge to a large segment of the law-abiding American public. I find it wholly implausible that an active drug user utilizing the type, quantity and the methods of delivery of the drugs conceded in this case would be unaware of the inherent risks through both his experience and the illegality of the activity. In supporting involuntary manslaughter indictments in a case of heroin provision, the Massachusetts Supreme Judicial Court in Commonwealth v. Catalina, 407 Mass. 779, 556 N.E.2d 973, 980 (1990), quoted People v. *245Cruciani, 334 N.Y.S.2d 515 (N.Y.Co.Ct.1972).
From a careful study and analysis of the majority of prevailing legal precedents in the United States as well as the medical studies and statistical data compiled, one can reasonably conclude that the consumption of heroin in unknown strength is dangerous to human life, and the administering of such a drug is inherently dangerous and does carry a high probability that death will occur. It is not unreasonable to conclude that the injection of heroin into the bloodstream of a human being constitutes a substantial and unjustifiable risk of death.
Given a logical deduction about Loft-house’s subjective awareness and objective data from common knowledge and expert opinion about the hazards of heroin (not to mention use in combination with cocaine) injection, the degree of circumspection he exercised should be assessed accordingly.
A second significant factual distinction from Pinckney is that we have a situation in which Lofthouse not only failed to perceive the foreseeable risks associated with the provision of several doses of one particularly nefarious depressant (heroin), but compounded that already substantial and unjustifiable risk by introducing a potent stimulant (cocaine) as well. Lofthouse had actual knowledge of the victim’s antecedent drug and alcohol consumption during the course of the evening and, it appears, the victim’s history of chronic substance abuse. Inappositely, Pinckney involved a passing drug deal and not a prolonged exchange such as was shared by Lofthouse and the victim in this case.
In addition to the factual dissimilarities to the present case, there have been major developments in New York law subsequent to the 1972 Pinckney holding. In its discussion of legislative intent, the Pinckney decision does not suggest that the New York Legislature intended to distinguish between deaths as a result of the transfer of drugs and of the administration of drugs, but rather noted the function of the legislature, historically, in promulgating drug policy. In a subsequent controlling opinion, People v. Cruciani, 36 N.Y.2d 304, 367 N.Y.S.2d 758, 327 N.E.2d 803 (1975), the New York Court of Appeals upheld a conviction where the defendant had actually injected the drugs into the assenting victim, but in doing so, the court revisited the result in Pinckney. Taking that opportunity to recast the earlier intermediate court holding, the Court of Appeals determined that Pinckney had been predicated not on legislative intent, but rather on an insufficient showing of causation. Thus restated, the court affirmed Cruciani’s second-degree manslaughter conviction, finding mens rea and causation not merely in the act of injecting the drugs into the victim, but in the broader context of making them available despite his knowledge of the victim’s present condition. Explaining its result the court stated:
[In Pinckney ] the defendant had sold the drug to the deceased, but did not inject the heroin. Nor was there any proof, as here, of awareness of the ongoing effect of drugs in the victim’s body at the time any self-inflicted injection might have been made, or beyond the general knowledge of the injuriousness of drug-taking, of a real threat to life. The remoteness of the fatal injection from the fact of sale diffused intent and scienter by possibly unknown or intervening events beyond Pinckney’s control. (Emphasis added).
Cruciani, supra, at 804. Unlike Pinckney, however, a Commonwealth jury determined that Lofthouse enjoyed no such dislocation from the events of the evening of April 11,1995. Lofthouse was present and witness to the victim’s consumption and, in fact, provided in an on-going basis, the combination of drugs that ultimately resulted in death. Even assuming that supplying the heroin alone was not a sufficient deviation from a reasonable standard of care to trigger criminal liability, Loft-house’s introduction of the cocaine, togeth*246er with his knowledge of alcohol use and of the -victim’s potential psychological vulnerability to drug abuse, can only be described as gross and unjustifiable indifference to the risks.
Lofthouse acknowledges the dangerous nature of the drugs used that night and the grievous social ill that attends them, but insists that the General Assembly’s failure to explicitly articulate that drug transfers be subject to the reckless homicide statute signals an unwillingness to extend criminal liability. What Lofthouse ignores, however, is that determination of such an inherently subjective mental state as recklessness should necessarily be factual. Although it is established law that where “the legislature speaks within the limits of the Constitution, its declaration of public policy is conclusive,” Allin v. American Indemnity Co., 246 Ky. 396, 65 S.W.2d 44, 45 (1932), there follows no negative corollary proscribing judicial action in the public interest where the Constitution and codes are silent. See Eversole v. Eversole, 169 Ky. 793, 185 S.W. 487, 489 (1916). Resisting the recent trend as exhibited in New Jersey, Florida, Connecticut, Louisiana, Nevada, Pennsylvania, Washington and Minnesota of imposing criminal liability (often strict liability) in drug transfers resulting in death, see Blair Talty, New Jersey’s Strict Liability for Drug Induced Deaths: The Leap From Drug Dealer to Murderer, 30 Rutgers, L.J. 513 (1999), the General Assembly of this Commonwealth has implicitly recognized that judicial inquiry on a case by case basis is a more appropriate means of determining whether conduct manifest in a drug transfer falls within KRS 507.050, another available homicide provision, or none at all.
As counsel for the Commonwealth recognizes, the reckless homicide statute offers a sound mechanism to address wildly irresponsible handling of potentially lethal narcotics, particularly in light of the General Assembly’s rejection of the felony-murder doctrine from common law. That rejection necessarily encouraged the utilization in Kentucky, as in other states, of other homicide provisions to reach crimes of lesser culpability than murder. See, e.g., Baker v. Commonwealth, Ky., 922 S.W.2d 371 (1996) (illustrating application of reckless homicide resulting from commission of a dangerous felony). In eliminating felony-murder, it was not the Kentucky Penal Code drafters’ intention to obstruct the prosecution of individuals who killed without intent, but rather to replace an outmoded common law concept problematic to elements of both mens rea and causation, in favor of more precise provisions requiring the establishment of mental states in securing homicide convictions. See KRS 507.020, Official Comment; see also, Robert G. Lawson, Criminal Law Revision in Kentucky: Part I—Homicide and Assault, 58 KY.L.J. 242, 255 (1970). A law exists to address the actions of Lofthouse and a Commonwealth jury correctly applied it.
There is nothing radical for a court to acknowledge that the injection of cocaine and heroin is unjustifiably dangerous. It is important to remember that while the tragic consequence was suffered by an assenting decedent, the crime committed was against the Commonwealth. “Consent ... or her own possible recklessness may add to the pathos in this tragic episode between drug users, but it is not available as a defense in these circumstances. The crime charged was against the People.” Cruciani, supra at 804-805. Kentucky has a vested interest in protecting all of its citizens from the illegal acts of thoughtlessness of reckless individuals who would help precipitate their demise. Perhaps this duty is heightened where drug addiction, almost universally recognized as a disease in the medical community, makes some of our citizens more vulnerable to the depredations of others. Only an outmoded concept of free will can justify labeling a habitual drug user’s voluntary act of consuming narcotics an intervening one capable of severing causation, in light of the voluminous and reliable data available on substance abuse and its associated neuro*247logical corruptions of the human brain. See Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) See generally, Report on Narcotic Addiction, 165 A.M.A.J. 1707. This holding today, as it relates to causation, puts us at variance with the majority of our sister states who have addressed the issue with a contemporary understanding of drug abuse.
Given the established facts and the instructive case law dealing directly with this issue, I would hold that the record supports a jury finding of reckless homicide. Lofthouse’s conduct, fell perilously below that of a reasonable person, and but for that fact his friend might well be alive today. I can see no considered basis upon which to conclude that, under the present facts, provision of heroin and cocaine to the victim did not exceed the substantial and unjustifiable risk defined in KRS 507.050. The statement in the majority opinion that guilt of criminal homicide, like any other offense, depends upon proof, has an enticing simplicity. Certainly, nothing could be more fair. Such an analysis ignores the specific facts of this case. Here, we are dealing with an inherently dangerous substance in that the reaction of each individual who ingests it is totally unpredictable. The result of the majority’s holding in this case is that a drug transfer which ultimately produces death does not constitute reckless homicide regardless of the egregiousness of the drug purveyor’s conduct, provided the victim voluntarily consumes. With that proposition I must emphatically disagree.
I would affirm the conviction in all respects.