U.S. Supreme Court Considers When Heroin Dealing “Results” In Death Part Two of a Two-Part Series of Columns

This is Part Two in a two-part series of columns. Part One in the series appeared here on Justia’s Verdict on Wednesday, December 4. –Ed.

In Part One of this column, I considered the case of Burrage v. United States, currently before the U.S. Supreme Court, which asks the meaning of a federal statute that provides for a heightened minimum sentence for heroin distributors whose distribution “results” in a death. I examined two features of “causation” under the law: factual causation (typically requiring “but for” cause) and a more normative type of causation that contemplates foreseeability or nd the scope of the risk posed by a party’s behavior. Here in Part Two, I will continue my analysis of the question presented by the case and take up the question how these components of causation might apply to the specific facts of the case before the U.S. Supreme Court in Burrage.

Causation in Burrage v. United States

In Burrage, the defense argues that even apart from the question of factual causation, a heroin dealer cannot ordinarily be said to have caused a death unless the particular death was a foreseeable outcome of the actions of the dealer. If only a very tiny proportion of heroin sales led to a fatal overdose, for example, it might not be fair to attribute causal responsibility for a particular user’s death to the dealer, absent additional circumstances. For instance, if a dealer had reason to know that a particular customer regularly overdoses, then the dealer might fairly be held responsible for the customer’s death if he went ahead and sold him heroin despite this knowledge.

By analogy, a bartender might be held civilly liable for serving alcohol to an obviously drunk customer who later injures a pedestrian while driving drunk, but a wine salesperson would not be held responsible if he sold several bottles of wine to a sober customer in the store who later drank it all in one sitting and then brought about the same pedestrian injury.

At oral argument, the Justices seemed generally comfortable with the government’s position that proximate cause is established whenever a customer dies of an overdose from using a heroin dealer’s product. Justice Breyer explained that because heroin is a dangerous drug, the decision to sell heroin properly subjects a dealer to responsibility for his customer’s overdose, so long as factual causation is established: “I accept that—first of all, there’s no problem with intent for me for the reason … that anyone who sells heroin to someone is reckless, at least, in respect to the possibility of a death resulting.”

Justice Scalia earlier explained, along similar lines, that even a rare overdose could properly be attributed to the drug dealer: “It may be an unusual situation that will cause it, but it’s within the scope of the risk. And when you sell drugs, you know that one of the things that can happen is that the drugs will produce an overdose.” The concept of the “scope of the risk” provides an account of how an outcome might be rare but could nonetheless appropriately be called a “result” of behavior if the behavior (like drug-dealing) is unlawful and carries a known risk of causing death through an overdose. If a person, by contrast, bought heroin and then dropped the large heroin package on the way home, causing a loud noise that startled a driver who then ran over the heroin purchaser, that death would not fall within the scope of the risk entailed in selling heroin.

The Facts of Burrage

In Burrage, the facts raise potential questions under either prong of the above causation analysis. As a matter of factual causation, the experts at trial were unable to testify that absent the victim’s ingestion of heroin purchased from the defendant, the victim would have survived. In other words, the experts who opined on the victim’s cause of death believed that he might have still died without the heroin, because of the other drugs that he ingested, including alprazolam, clonazepam, oxycodone, and baclofen. At oral argument, the government itself conceded that if the “results in” language in the statute requires “but-for” causation, then the evidence at trial did not support a conviction: “we concede that if you apply a but-for test, that testimony does not establish a but-for test.”

Unlike the defense, however, the government claims that so long as the heroin played a role in depressing respiration (which the doctors testified that it would have done), and respiratory depression led to death, then it is accurate to say that the heroin resulted in a death. The heroin, in other words, did contribute to a physiological state that itself led to death, even if we cannot know that the heroin was either necessary to causing the death, or was a sufficient cause of that death.

Justice Scalia found this argument unconvincing, and I must say that I agree with Justice Scalia on this point. In the absence of further modification, the statutory words “resulted in death” have a plain meaning. They mean that absent the heroin, the victim would have lived, or—perhaps—they might also mean that the heroin alone would have been enough to kill the victim even if he had not taken the other drugs.

In the absence of a conspiracy between the different drug dealers, then, the heroin dealer cannot plausibly be held to have “caused” a death that might have been independently caused by one or more of the other drugs he took at the time, a death that also might not have occurred if the victim had taken only the heroin.

Under the “rule of lenity,” judges must interpret ambiguous criminal statutes in a manner that favors leniency for the defendant. The more lenient—and the most natural—reading of “results in” is the one that would seem to rule out factual causation in Burrage’s case. My impression from the oral argument is that Justices Breyer and Kagan are prepared to join Justice Scalia in saying exactly that. Justice Kennedy and Chief Justice Roberts at some points at oral argument seemed to hint at being willing to do so as well. This bodes well for Marcus Andrew Burrage.

Proximate Cause

The normative causation inquiry in this case is less clear-cut. Selling heroin certainly carries a risk of (factually) causing death, because heroin is a drug that people frequently abuse and that sometimes (though infrequently) results in fatal overdoses. This is Justice Breyer’s reason for expressing comfort with attributing an overdose to a dealer, where the dealer’s drug has factually caused the overdose. On the other hand, apart from its being illegal, heroin in many ways resembles prescription drugs that also carry a risk of causing death. Oxycodone, one of the several drugs that the victim in Burrage took before he died, is among such prescription medications.

The question, then, is whether the fact that a particular drug is illegal is alone enough to distinguish it from other drugs that may be equally dangerous and that may also lead to death as one of their known risks. Perhaps it is enough—and perhaps the law in question contemplates that very connection as adequate to justify a heightened minimum penalty. After all, we classify and punish drunk driving as involuntary manslaughter when a pedestrian dies as a result of the impaired driving, even though the conduct in question is not highly likely—in any individual case—to cause a death and even though the drunk driver who is lucky enough to avoid hitting anyone may be no less culpable than the driver who kills a pedestrian.

As Justice Scalia noted at oral argument regarding the distinction between heroin dealers whose products do and do not cause death, respectively: “[F]or any crime, there are two things. We punish the intent, the wickedness, and in both cases, the party is equally wicked, but we also punish the consequence. In one case, the party dies because of that person’s act. And in the other case, nobody dies just because of that person’s act.”

On the other hand, drunk driving is arguably a different sort of offense from selling heroin and involves a very different kind of “wickedness.” A drunk driver is not engaging in a consensual transaction with the victim of his impaired driving. The victim of a drunk driver has in no way agreed to the intoxication of his driver, and certainly cannot be said to have demanded that the driver drink alcohol and then operate a motor vehicle.

The victim of the drunk driver is, in other words, clearly a victim and not a participant, and the drunk driver is just as plainly the perpetrator. In such circumstances, it seems appropriate to place causal responsibility for deaths that result from drunk driving squarely at the feet of the drunk driver.

When a dealer sells a customer heroin, by contrast, the dealer engages in a consensual transaction in which he satisfies the demand of the consumer. Both parties to the transaction, moreover, engage in criminally-penalized activity. And finally, the purchaser likely knows that heroin is a substance that can cause death if taken in too great a quantity. As Justice Alito indicated, tongue in cheek (and for a different purpose), what is “a responsible heroin dealer” supposed to do if he wants to sell heroin but wishes to avoid triggering application of the “results in death” language?: “I take the risk of a drug conviction, but I don’t want this death results business.”

It seems, under the prosecution’s interpretation of the law, that there is nothing that the responsible drug dealer can do. He cannot avoid liability by warning his customer (as a legal pharmaceutical company could do) or by ensuring that his product is precisely what he says it is, in terms of purity and effect. He is forced to be strictly liable for any deaths that result from use—or abuse—of the drug.

The Justices, judging from their comments and questions at oral argument, do not appear to have a problem with this sort of strict liability. But it is troubling to me. I would argue that if an adult consumer has the information that she needs to make a wise and healthful choice but chooses instead to make a risky choice, she places her own health in jeopardy. If she dies because of that choice, we should not be attributing that death to the person who merely satisfied her demand, absent plain indications that the customer was in heightened danger and absent coercion that tainted the buyer-seller relationship.

If the Court reaches this issue, it will likely disagree with me on this point. I would suggest, in that case, that my argument would then counsel in favor of narrowing the criminal statute holding heroin dealers accountable for deaths that result from their product. Heroin dealers may be metaphorical merchants of death, but they are not—in virtue of selling their product—comparable to murderers.