U.S. Supreme Court Considers When Heroin Dealing “Results” in Death

This is Part One in a two-part series of columns.  Part Two in the series will appear here on Justia’s Verdict on Wednesday, December 11. –Ed.

Last month, the U.S. Supreme Court heard argument in Burrage v. United States.  The case turns on the meaning of a federal law that increases the minimum sentence for distributing heroin when using that heroin “results” in death.  In the case at hand, Marcus Andrew Burrage sold heroin to Joshua Banks, who later died after consuming the heroin, along with other drugs.

The trial judge in Burrage instructed the jury that conviction for distribution of heroin that results in death requires the prosecution to prove beyond a reasonable doubt that, in addition to intentionally distributing heroin, with the knowledge that the substance was heroin, “the heroin distributed by the Defendant was a contributing cause of Joshua Banks’s death,” adding that “[a] contributing cause is a factor that, although not the primary cause, played a part in the death.”

The jury convicted Burrage, who now argues, among other things, that for heroin to “result” in a death, as required by the statute, the heroin must be either a “but-for” cause of the death, or an independently sufficient cause of the death.  The jury instructions at Burrage’s trial, however, permitted the jury to convict without proof that the defendant, Burrage, actually caused the victim’s death at all, in either of the two enumerated ways.  Furthermore, the evidence in the case appears to have been insufficient to establish either of these forms of causation—regardless of the jury instruction—and therefore should perhaps support a directed verdict of acquittal, rather than a retrial with a distinct jury instruction.

In this column, I will examine the petitioner’s theory of causation and consider some implications of attributing a heroin consumer’s death to his dealer, even in the presence of “but-for” causation or independent sufficient causation.

Different Meanings of “Causation”

Generally, when the law requires proof that a defendant’s action caused some result, the meaning of causation is, at a minimum, “but-for” causation.  But-for causation refers to a state of affairs in which the outcome in question would not have ensued in the absence of (or “but for”) the action taken by the defendant.  Another way of saying the same thing is that the defendant’s actions were “necessary” to the outcome.

A criminal defendant, for instance, can ordinarily be guilty of murder only if the victim would not have died in the way (and at the time) that he died absent the defendant’s actions.  If a jury cannot conclude beyond a reasonable doubt that the defendant’s actions were necessary to the victim’s death—if the victim might well have died in the same way and at the same time in the absence of the defendant’s behavior, then the jury generally must acquit the defendant.

An Exception to the Rule

As all attorneys know from criminal law (and tort law) classes in law school, there is an important exception to this “but-for” causation rule.  Sometimes, we say that a person has caused an outcome, even though that outcome would still have occurred without the person’s having acted in the way that he did.  We say this when there are multiple sufficient causes for the outcome.

Take, for example, the case of the two simultaneous shooters.  Both shooters aim their weapons at the victim’s heart and fire simultaneously, instantly killing the victim.  In such a case, neither shooter is the “but-for” cause of the victim’s death.  Had shooter #1 refrained from acting, the victim would still have died at the same time of shooter #2’s gunshots to the victim’s heart.  And if, instead, shooter #2 had refrained from firing, the victim would similarly have still died at the same time of shooter #1’s gunshots to the victim’s heart.

In the two-simultaneous-shooters case, if we required “but-for” causation to attribute the death to either shooter, then we would have to acquit both shooters of murder, because neither of them alone was a necessary condition of the victim’s death.  Yet it would seem bizarre, in such a case, to acquit the two men of murder, since they did “cause” the victim’s death, under any fair appraisal of their behavior.  In cases of this sort, the law has sometimes provided for the attribution of causation to both men, on the theory that even though neither one was a “necessary” cause of the victim’s death (and hence there was no “but-for” causation), both were “sufficient” causes of the death.  Either one’s actions alone would have been enough to lead to the victim’s death.

When each of several actors behave in a manner that would independently be sufficient to result in an outcome, then the law may attribute causation to each actor despite the absence of but-for causation in either one’s actions.

Proximate Cause, Foreseeability, and the “Scope of the Risk”

Another feature of Burrage has less to do with the factual cause of death than with a more explicitly normative side of attributing causation.  Bad outcomes cannot properly be attributed to every action that factually caused those outcomes.  Only some actions have a sufficiently tight moral relationship to the resulting outcome for us to say that those actions legally “caused” that outcome.

Take, for example, a death from gunshot wounds.  When a perpetrator shoots a victim to death, there are always—as an empirical matter—multiple events other than the actions of the shooter that factually caused the death.  For example, in order for the victim to have died at the hands of the perpetrator, it might have been necessary that the victim’s friend innocently drove the victim to the street where the armed perpetrator was secretly lying in wait.

Yet the law nonetheless (and properly) rejects the notion that the friend’s driving legally “caused” the death.  Similarly, going back in time, it may be accurate to say that if the victim’s employer had not asked the victim a year earlier to open a new office in the city where he was ultimately murdered, the victim also would not have died.  Yet again, we would not attribute the death to the actions of the victim’s employer.  And the same is true for the actions of the victim’s mother and father in conceiving and giving birth to the victim, though those actions, as well, were necessary causes of the ultimate murder.

Why do some “but-for” causes fall outside the scope of what we would legally classify as “causes”?  A big part of the answer rests on our sense that some of these actors behaved reprehensibly in doing what they did, while others behaved blamelessly, and that some of the actions that were taken predictably led to the bad outcome at issue, while others of those actions did so only by happenstance.  Asking one’s employee to open an office in a new city does not (usually) predictably place the employee’s life in serious danger of being taken by a murderer, and neither does giving birth to a child.  Furthermore, the actions of a murderer—because they intentionally bring about a death—appear to relieve other causal actors, whose behavior is neither aimed at killing, nor does it predictably result in death, of moral responsibility for the bad outcome.

Part Two in this series will appear here on Justia’s Verdict on Wednesday, December 11.