Can a defendant who sells drugs to someone who dies of an overdose be held criminally liable for that person’s death if the drug contributed to the victim’s death but was not the sole cause?
On April 14, 2010, Marcus Burrage sold heroin to Joshua Banka, who used the heroin and a cocktail of other drugs, and was found dead the next day. Medical and toxicology reports indicated that the heroin contributed to Banka’s death, but neither report said that Banka would have lived if he had not taken the heroin. Burrage was convicted of distribution of heroin causing death under 21 U.S.C. § 841, andhe appealed arguing that the jury instructions were erroneous. In particular, Burrage challenged the causation instruction under § 841, arguing that the statute required the government to prove that the heroin was the proximate cause of death, and not just a contributing factor. The district court concluded, and the court of appeals affirmed, that the “contributed to” instructions were consistent with Eighth Circuit precedent. The Supreme Court will now clarify the causation standard for the federal crime of distribution of drugs causing death. This standard will determine when a person who distributes drugs can be held criminally responsible for the death of the drug user, and what the government must prove in such cases.
Questions as Framed for the Court by the Parties
- Whether a person can be convicted for distribution of heroin causing death utilizing jury instructions, which allow a conviction when the heroin that was distributed "contributed to," death by "mixed drug intoxication," but was not the sole cause of death of person.
- Whether the crime of distribution of drugs causing death under 21 U.S.C. § 841 is a strict liability crime, without a foreseeability or proximate cause requirement.
On November 17, 2009, Breanna Brown, a confidential informant cooperating with the Central Iowa Drug Task Force, conducted a controlled buy of heroin from suspected drug dealer “Lil C.” See United States v. Burrage, 687 F.3d 1015, 1018 (8th Cir. 2012). Various officers later identified Lil C as Petitioner Marcus Burrage, but at trial Burrage denied ever selling drugs to Brown. See id.
On April 14, 2010, Joshua Banka purchased heroin from Lil C in the presence of his wife, Noragon Banka (“Noragon”). See United States v. Burrage, 687 F.3d at 1018. Banka used the heroin that night and the next morning Noragon found her husband dead in their bathroom. See id. The police searched their home and found a number of narcotics and prescription medications, including oxycodone, marijuana, and heroin. See id. Noragon gave police a physical description of the person who sold heroin to her husband. See id. Believing it was a heroin-related death, the Nevada (Iowa) Police Department contacted the Central Iowa Drug Task Force, who sent Burrage’s photo to the police based on Noragon’s description of the dealer. See id. The police included Burrage’s photo in a photo lineup shown to Noragon, and she identified him as the man who sold heroin to her husband. See id.
On April 27, 2011, a grand jury charged Burrage under 21 U.S.C. § 841 (b)(1)(C) with distribution of heroin causing death for the sale that preceded Banka’s death, and also charged him with the November 2009 sale. See Brief for Petitioner, at 13. At trial, Dr. Eugene Q. Schwilke, a forensic toxicologist, testified that heroin was a contributing factor to Banka’s death, but he could not state that Banka would have lived if he had not taken heroin. See United States v. Burrage, 687 F.3d at 1018-19. Dr. Jerri McLemore, a medical examiner, conducted an autopsy on Banka’s body. See id. at 1019. Relying on her physical examination and Dr. Schwilker’s toxicology report, she concluded that the cause of death was “a mixed drug intoxication.” See id. at 1019. Like Dr. Schwilke, Dr. McLemore also could not say that Banka would have lived if he had not taken heroin, only describing Banka’s death without the heroin as “very less likely.” See id. at 1019.
At trial, Burrage proposed several instructions on the correct causation standard under § 841 (b)(1)(C); he argued that the statute’s “results from” language requires a showing of proximate cause. See United States v. Burrage, 687 F.3d at 1020. The district court judge declined to give Burrage’s proposed instructions and instead instructed the jury that they could convict Burrage if the government had proven that the heroin was a contributing cause in Banka’s death. See id.at 1020-21. The jury convicted Burrage and gave him the minimum mandatory sentence of twenty years. See id. at 1020.
Burrage contends that the district court erred by using “contributory cause” language to interpret the statute instead of proximate cause. See id. at 1020-21. The Court of Appeals for the Eight Circuit agreed with the district court and held that there is no proximate cause requirement under § 841 (b)(1)(C). See id. at 1020. The Supreme Court granted certiorari on April 29, 2013. See Brief for Respondents, United States at 14.
The issue before the Court is under what circumstances a person who distributes drugs can be held criminally liable for the “death or serious bodily injury result[ing] from the use of such substance”. See Brief for Petitioner, at 10. Petitioner Marcus Burrage contends that the Court of Appeals erred in using a “contributing cause” requirement; he argues that common law and the plain meaning of the statute require a finding of “but for” and “proximate” causation. See Brief for Petitioner, at 23. The United States argues that drug overdose deaths do not require proximate cause because the distribution and use of the drug itself serves the traditional function of proximate causation. See Brief for Respondents, United States at 13-14. The court’s ruling will address criminal law’s ability to hold individuals responsible for drug-related deaths, and could impact the language of many criminal statutes. See Brief for Petitioner, at 23-24, 35.
The IMPORTANCE of Defining the Causation Standard
In support of Burrage, the National Association of Criminal Defense Lawyers (“NACDL”) urge the Court to reject the Eighth Circuit’s “contributing cause” standard; they argue that if the Court does not limit liability to foreseeable consequences, then liability could attach to potentially infinite “contributory” causes to a drug-user’s death, producing unfair and extreme results. See Brief of Amicus Curiae of National Association of Criminal Defense Lawyers in support of Petitioner at 5. Urging a proximate cause standard, the NACDL notes that the Court has previously “read in” proximate cause requirements into civil statutes even where the plain language of the statutes did not include proximate cause. See id. at 5-7. Supporting a heightened causation standard, Families Against Mandatory Minimums (“FAMM”) argues that the harsh penalties attached when “death results” suggest that Congress intended stringent causal standards to apply. See Brief of Amicus Curiae of Families Against Mandatory Minimums in support of Petitioner at 2.
The United States counters that the “contributing cause” test is preferable because the “significant factor” test is unclear and imprecise. See Brief for Respondents, at 24. Furthermore, the United States argues that the “but for” causation test is an unsound tool when multiple forces coincide to produce a certain result because it would potentially hold neither causes accountable for the result. See id. at 42. Moreover, the United States argues that requiring the proof of the circumstances – e.g., the distribution of the drug, use of the drug, and the drug’s contribution to overdose death – fully serves proximate cause’s function of limiting criminal responsibility to the types of injury that Congress intended to address with the statute. See id. at 14.
Interpreting an Ambiguous Statute
The NACDL argues that when a statute’s language and structure are unambiguous, the rule of lenity requires the court to read a criminal statute narrowly, which here would require proximate cause. See Brief of Amicus Curiae of National Association of Criminal Defense Lawyers at 13. Further, the NACDL argues that no citizen should be punished for violating a statute whose commands and punishments are not clearly prescribed. See id. at 14. The NACDL asserts that the rule of lenity is founded on the policy that the law should provide fair warning of the line between criminal and noncriminal conduct. See id. at 15. Otherwise, amici argue, overreading the phrase imposes a significant burden on the liberty of the individual who is erroneously sentenced to a longer prison term. See Brief of Amicus Curiae of Families Against Mandatory Minimums at 2.
The United States counters that Petitioner and amici’s reliance on the rule of lenity is misplaced because in order to invoke the rule, the Court has to determine that there is a grievous ambiguity in the statute. See Brief for Respondents, at 31. They argue that no ambiguity exists here because the courts have previously defined the causation requirement in the Eighth Circuit. See id.Furthermore, the United States argues that nothing suggests that Congress would require the court to interpret a heightened standard of causation that would potentially exonerate drug dealers of the foreseeable consequences of their unlawful actions. See id. at 60.
This case asks the Court to consider when a drug dealer can be held responsible for a drug user’s death. Burrage argues that the prosecution must prove but-for causation – i.e., that without the drugs Burrage sold to the victim, the victim would not have died. SeeBrief for Petitioner at 23. Burrage further argues that 21 U.S.C. § 841 requires that the victim’s death must have been a foreseeable consequence of the drug sale. Seeid.The United States disagrees and claims that the jury was properly instructed that the prosecution need only prove that the drug Burrage sold was a contributing cause to the victim’s death. See Brief for Respondent at 13.
ACTUAL CAUSATION: IS A “BUT-FOR” TEST REQUIRED?
Burrage argues that the “results from” language of the statute requires a causal connection between a defendant’s actions and the resulting harm. SeeBrief for Petitioner at 13-14. According to Burrage, the causal connection includes both proximate causation and but-for causation between a defendant’s actions and the resulting death. Seeid. at 13. Burrage argues that under the criminal common law, when “results from” is used in a criminal statute, but-for causation and proximate cause are the minimum requirements to prove causation. Seeid. at 27-28. To find a but-for cause when multiple causes contributed to the result, Burrage says, there must be a stringent causal standard that shows that the defendant’s actions were a substantial factor in causing the victim’s death. Seeid. at 33. Thus, Burrage argues, if the experts determined that Burrage’s actions would have independently causeD the victim’s death, the substantial factor test would be satisfied. Seeid. at 33.
The United States counters that a strict but-for test is not generally required in criminal law and should not be required under the statute in this case.See Brief for Respondent at 17. When multiple forces yield a given result, such as a victim’s mixed-drug death, the United States maintains that the ‘but for’ test would unfairly exonerate culpable defendants. See id.at 19. The United States argues that requiring proof of but-for causation in this case would be improper when the victim died due to mixed-drug intoxication. See id.at 18. Moreover, the United States contends that the substantial factor test does not provide a clear standard and could become such a heightened requirement that it would rule out some but-for causes. See id. at 23-24. Additionally, the United States criticizes the proposed independent sufficiency test because it would allow defendants acting in tandem to escape criminally responsibility where none of their actions alone were sufficient to bring about the result. See id. at 24-25. The United States thus argues for the contributory cause standard, a test that it considers suitable for deaths with multiple causes. See id.at 20.
IS A CONTRIBUTORY CAUSE TEST SUFFICIENT?
According to Burrage, a contributing cause standard is inappropriate in this case because it does not meet the statute’s causal requirements. SeeBrief for Petitioner at 31-32. Citing the statute’s text, Burrage notes that if Congress had intended to use a contributing cause standard, it would have adopted language to clearly express this intention. Seeid. at 32. Still, even if the “death results” provision does leave room for the contributory cause standard, Burrage argues that the Rule of Lenity must apply because the provision would otherwise be grievously ambiguous. Seeid.Burrage argues thatthe Rule of Lenity requires the court to read stricter causation requirements into a statute when the statute is ambiguous on its face, to remedy the lack of fair warning to the public. Seeid. at 32-33. Burrage also argues that the harsh penalties under§ 841(b)(1)(C), which can include life in prison, suggest a stricter causation standard than contributing cause. Seeid. at 36. Such a penalty, Burrage argues, should be reserved for those actions that are a substantial cause of someone’s death and not merely a contributing cause. Seeid.
The United States counters that the contributing cause test is the best way to determine the true cause of death, because it asks if the defendant’s actions contributed to the unlawful result. See Brief for Respondent at 26. The United States urges that the contributory cause test’s approach has been used in the past and in modern criminal law. See id.at 22. Moreover, the United States that the “death results” provision favors a contributing-cause test because the scenarios contemplated by the statute consist of death by multiple-drug overdose. See id. at 28. Here, the United States notes that although the experts could not identify any one drug as the but-for cause of the victim’s death, they did say that the heroin was an important cause. See id. at 33.
IS FORESEEABILITY REQUIRED TO PROVE PROXIMATE CAUSE?
Burrage argues that under common law foreseeability is always required to prove proximate cause in a criminal case. SeeBrief for Petitioner at 18. In addition, Burrage contends thatafter proving but-for causation, the government must also prove that the results of the defendant’s actions were foreseeable. Seeid. at 18-20. Burrage argues that because proximate cause limits the potential liability of an offense to only those actions that were directly related to the offense, it is necessary in criminal cases. Seeid. at 20-21. Moreover, Burrage asserts that without the foreseeability requirement, the number of causes for any given result could become overly broad. Seeid. at 21-22. Burrage posits that disposing the foreseeability requirement would allow parties who were not direct causes of the result, such as the victim’s wife, who allowed him to take the drugs, to be held liable. Seeid.
The United States counters that even though most cases provide separate instructions for proximate and actual cause, proximate cause instruction sare not required in this case. See Brief for Respondent at 34. According to the United States, the statute here only requires proof of causation in a case involving drug-overdose. See id.at 34. The United States explains that because the expert medical professionals said that heroin was a likely cause of death and that the victim’s blood produced morphine levels that would be expected to be highly toxic, the jury could have and did find causation sufficient to substitute foreseeability. See id. at 50-51. The United States contends that Congress chose to treat drug-overdose deaths as per se foreseeable to drug-traffickers. See id. at 39. Moreover, the United States suggests that Congress incorporated the foreseeability factor into the statute, by calling attention to the drug’s danger and listing it as a Schedule I or II controlled substance, thus signaling a foreseeable risk of death to the user. See id. at 50.
REQUIRED MENTAL STATE
Burrage argues that the government must prove that he intentionally or knowingly caused Banka’s death, or should have foreseen it; Burrage claims that in criminal cases, a defendant’s mental state attaches to a showing of proximate cause unless the offense is a strict liability offense. SeeBrief for Petitioner at 28. Burrage explains that a strict liability offense is one where regardless of the defendant’s mental state, he is guilty if he engages in certain prohibited conduct. Seeid. at 36-37. Here, Burrage argues that the mental states “knowingly or intentionally,” which are stated in subsection (a), apply to all of the elements of the offense, including the “death results” provision. Seeid. at 22-23 (citing Flores-Figueroa v. United States, 556 U.S. 646, 646-67 (2009)). Thus, he argues, the government must prove that he knowingly or intentionally caused the death of the victim or that he should have foreseen the death of the victim due to his actions. Seeid. at 24-25.
The United States argues that the actual language of the statute does not require a mental state, as held in many Courts of Appeals decisions that say there is no mens rea requirement for issues of drug types and qualities in most drug trafficking cases. See Brief for Respondent at 43-44. The United States contends that the Supreme Court reaffirmed Congress’s intention to replace the proximate cause rule in special circumstances and that the Court rejected a default proximate cause standard. See id. at 47-48.
In this case, the Supreme Court will decide whether a defendant can be convicted for the distribution of drugs causing death when the defendant’s actions were a contributing cause of that death. The case turns on a fundamental question in criminal law: how strong must the causal link be between a defendant’s actions and a victim’s death to hold the defendant criminally liable? The Court’s decision will clarify the causation standard for the federal crime of distribution of drugs causing death and could impact the language of many criminal statutes.
- Harmless Error Blog, Burrage v. U.S: When Does Drug Trafficking Cause Death?, (Apr. 30, 2013).
- William Peacock, Esq., FindLaw, SCOTUS Grants Cert in 8th Cir Drug Overdose Case, (Apr. 30, 2013).