By Steven Nolder
Today, the Supreme Court heard argument in Burrage v. United States, a case that asks how much proof prosecutors need to get an enhanced sentence for a drug dealer when a customer he sold heroin to died. It will specifically give contours to the phrase “and if death or serious bodily injury results from the use of such substance,” found in 21 U.S.C. § 841(a)(1)(A), (B), & (C), in reference to drug use. If this phrase finds its way into an indictment for a Class A, B, or C felony controlled substance offense, then the statutory penalties become a mandatory minimum 20 years, and the maximum is life imprisonment.
Some of the basic facts in Burrage’s case aren’t disputed—in 2010, Joshua Banka was found dead in his Nevada, Iowa home by his wife. The night before Banka’s death, he ingested a number of different prescription drugs that he regularly abused (oxycodone, alprazolam, baclofen, and clonazepam), as well as heroin that he purchased from Marcus Burrage. Not surprisingly, Blanka was hardly a model of health as he suffered from documented heart and lung disease at the time of his death.
Burrage was indicted for the sale of heroin to Blanka under §841. However, the government also gave Burrage notice of its intent to seek an enhanced statutory punishment under the “death results in” provision cited above.
At Burrage’s trial, two doctors testified that heroin use was a contributing cause to Banka’s death, but they were unable to exclude the possibility that Banka would have nonetheless died from the other drugs he ingested. One of the doctors made the cause of death as clear as mud by noting that Banka died from a “mixture of drugs,” including heroin.
The district court refused to instruct the jury that before they could find that Banka’s death resulted from the heroin he purchased from Burrage, they had to find that heroin use was the actual cause of death or that Banka’s death was the foreseeable result of heroin use. Instead, the jury was simply instructed that Burrage could be convicted if Banka’s heroin use was a “contributing” cause of his death.
The jury found that Banka’s use of heroin contributed to his death and Burrage was sentenced to serve 20 years in prison. The Eighth Circuit affirmed, finding that the enhanced penalty was appropriate as long as Banka’s heroin use was a “contributing cause” of his death.
The two questions on which the Supreme Court granted certiorari were: (1) whether the “results in death” crime codified in §841 requires proof that Burrage sold the heroin knowing either that Banka’s death was foreseeable or that the heroin was the direct cause of Banka’s death; and (2) whether the district court erred by instructing the jury that Burrage could be convicted based on a finding that Banka’s heroin use was a contributing, as opposed to the sole, cause of his death.
The parties agree that causation must be established by the government in order for the “results in death” element to be proven. There is significant divergence over the precision of the government’s burden. The dog fight in the Supreme Court today will be whether the Court adopts Burrage’s argument that §841’s “results in death” phrase requires “but for” causation—i.e., the heroin (and only the heroin) was the cause of Banka’s death, or that Burrage sold the heroin knowing that Banka’s death was foreseeable. Burrage maintains that if, on the other hand, “contributing cause” is the standard for conviction, then a watered-down causation standard found in civil law will be injected into a criminal law setting resulting in a strict liability statute. Strict liability, in criminal law statutes, is strongly disfavored in American jurisprudence.
The government, not surprisingly, wants the Court to interpret the “death results in” phrase broadly to allow its application as long as heroin use was a “contributing cause” of Banka’s death. The government is clearly uncomfortable with shouldering the burden of establishing the precise drug that caused a person’s death in cases where multiple drugs were ingested and were either singularly or collectively responsible for the death.
Under the Supreme Court’s Apprendi v. New Jersey and Alleyne v. United States decisions, the “and if death or serious bodily injury results from the use of such substance” phrase is an element of the §841 offense, meaningthat the phrase serves to increase the penalty for a crime, and therefore elevates the mandatory minimum penalty. Consequently, the “death results in” facts must either be proven to a jury beyond a reasonable doubt or admitted by the defendant before the enhanced mandatory minimum penalty can apply.
Because this rises to the level of an element that must be proven beyond a reasonable doubt, a higher burden of causation must be the standard that rules the day. In seeking penalties that are 10, 15, or 20 years above the otherwise applicable mandatory minimum, the burden should be on the government to unravel the ball of yarn and demonstrate, with precision, the sale of the specific drug which caused the death.
If the government does not have the clear evidence to prove such causation between the sale of the drug and the death, all is not lost and the Republic will be safe. The government can simply seek a conviction under §841 for the drug sale, but not seek the enhanced 20-year mandatory minimum sentence. After all, the government could always deal with the user’s death as a factor to be considered as part and parcel of the “nature and circumstances of the offense.” Although including the death as a factor in the offense would not trigger the 20-year minimum, it can still be used as an influential part of the sentencing calculus.
The emotions in the Burrage case might lend themselves to Machiavellian decision-making by the Supreme Court, but we should hope that the ultimate decision is based on logic and precedent. If the government is seeking to imprison a defendant to a minimum of 20 years for causing someone’s death through the sale of drugs, it should have to prove cause of death beyond a reasonable doubt.
Steve Nolder spent over eighteen years as a federal defender in the Southern District of Ohio before leaving the office to save junior staff from layoffs and furloughs in the midst of the sequester’s drastic budget cuts. He is now in private practice at Scott & Nolder LPA, www.ohiocrimelaw.com in Columbus, Ohio.