On January 27, 2014, the U.S. Supreme Court handed down a significant decision in a drug death case. A little statutory background is in order.
The original Controlled Substance Act (CSA) was passed in 1970 as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970. Codified in 21 U.S.C. § 801, the Supreme Court in 2011 pointed out that the CSA “tied the penalties for drug offenses to both the type and the quantity involved, with no provision for mandatory minimum sentences.”
In 1986 Congress, with the Anti-Drug Abuse Act (ACT) [codified in 21 U.S.C. § 841], not only redefined the categories of drug offenses but substantially increased the penalties for many of these offenses, including what is known as the “death results” enhancement. Under this Act, Schedule I and II substances are considered the most dangerous and addictive, and are punished the most severely. In its most recent decision, Burrage v. United States, the Court pointed out that the Act “imposes sentences ranging from 10 years to life imprisonment for large-scale distributions … from 5 to 40 years for medium-scale distributions … and not more than 20 years for smaller distributions.”
But as the Court noted: these “default sentencing rules” do not apply when death or serious bodily injury results from the use of distributed drug. The Act provides that the defendant convicted of such a distribution “shall be sentenced to a term of imprisonment which … shall not be less than twenty years or more than life …”
And that’s where Marcus Andrew Burrage comes into the picture. Burrage sold drugs; namely, heroin. He sold one gram of heroin to Joshua Banka on April 15, 2010, at a time when Banka was on what the Supreme Court called “an extended drug binge.” It seems that on the morning of April 14 Banka smoked marijuana at a former roommate’s home after which he stole some oxycodone pills from the roommate—all of which he crushed, cooked and injected. It was at this point that Banka and his wife met Burrage and made the heroin purchase. Banka didn’t waste any time cooking up and injecting some of the heroin. The Banka couple returned home where Banka injected more heroin shortly after midnight. His wife went to sleep at 5 a.m. soon after she witnessed her husband preparing another fix of the heroin. The wife awakened a few hours later to find Banka dead in their bathroom. The Supreme Court said a subsequent police search “turned up syringes, 0.59 grams of heroin, alprazolam and clonazepam tablets, oxycodone pills, a bottle hydrocodone, and other drugs.”
The Government indicted Burrage for two counts of distributing heroin in violation of § 841(a) (1). One of those counts alleged that Burrage had on April 14, 2010, distributed heroin from which “death … resulted from the use of that substance.” At an ensuing trial Burrage was convicted and sentenced to twenty years. During the trial, a forensic toxicologist testified that he found multiple drugs present in Banka’s system at the time of his death, “including heroin metabolites, codeine, alprazolam, clonazepam metabolites, and oxycodone.” The toxicologist also testified that while morphine, a heroin metabolite, was the “only drug present at a level above the therapeutic range, he could not definitively say Banka died as a result from taking the drug, although he concluded the drug “was a contributing factor” in his death.
Prior to trial Burrage’s attorney requested that the trial judge give the jury instructions on causation. One of those instructions would have required the Government to prove that the heroin was the “proximate cause” of Banka’s death. Another instruction would have defined proximate cause as “a cause of death that played a substantial part in bringing about the death,” meaning that the “death must have been either a direct result of or a reasonably probable consequence of the cause and except for the cause the death would not have occurred.”
The trial court rejected the defense’s proposed instructions. Instead the judge instructed the jury that the Government was required to prove only “that the heroin distributed by the Defendant was a contributing cause of Joshua Banka’s death.”
Burrage appealed his convictions to the Eighth Circuit Court of Appeals. In upholding the convictions, the appeals court held that the trial court’s “contributing cause” instruction was consistent with a prior precedent by the court.
The Supreme Court granted certiorari on two questions: whether a defendant may be convicted under the “death results” provision (1) when the use of the controlled substance was a “contributing cause” of the death, and (2) without separately instructing the jury that it must decide whether the victim’s death by drug overdose was a foreseen result of the defendant’s drug-trafficking offense.
The Court began its analysis with this observation: “The law has long considered causation a hybrid concept, consisting of two constituent parts: actual cause and legal cause … When a crime requires ‘not merely conduct but also a specific result of conduct,’ a defendant generally may not be convicted unless his conduct is ‘both (1) the actual cause, and (2) the “legal” cause (often called the “proximate cause”) of the result … Those two categories roughly coincide with the two questions on which we granted certiorari. We find it necessary to only decide the first: whether the use of heroin was the actual cause of Banka’s death …”
As pointed out by the Court, the CSA does not define the term “death results;” therefore, the Court gave the term the ordinary meaning found in a dictionary: A thing “results” when it arises “as an effect, issue, or outcome from some action, process or design.” Put simply, anything that “results from” must have what the Court called “actual causality.” Quoting from one of its 1934 decisions, the Court said “’In the usual course,’ this requires proof ‘that the harm would not have occurred’ in the absence of—that is, but for—the defendant’s conduct.’”
The Court then illustrated this historical principle. “’Where A shoots B, who is hit and dies, we can say that A [actually] caused B’s death, since but for A’s conduct B would not have died.’”
That same conclusion must be drawn in situations in which others factors could produce death “so long as the other factors alone would not have done so—if, so to speak, it was the straw that broke the camel’s back. Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived.”
And that’s where the Supreme Court found the fundamental flaw in the Burrage case. The Government had not proven beyond a reasonable doubt that Banka’s use of the heroin distributed to him by Burrage independently caused Banka’s death. There were too many other drugs in his system which, taken with the heroin, could have resulted in death. Thus, there was no reliable expert evidence that “but-for” the heroin Banka would not have died. All the Government could reasonably prove was that the heroin contributed to Banka’s death. Not nearly enough.
“The language Congress enacted [in § 841(b)(1)] requires death to ‘result from’ use of the unlawfully distributed drug,” the Court concluded, “not from a combination of factors to which drug use merely contributed.” In this case there was no evidence that Banka’s heroin use was an independently sufficient cause of his death.
*Held: At least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable for penalty enhancement under §841(b)(1)(C) unless such use is a but-for cause of the death or injury. Pp. 4-15.