The recent overdose death of actor Philip Seymour Hoffman brings into sharper relief the issue decided by the Supreme Court last week in Burrage v. United States. There the court held that a heroin dealer’s drugs had to be the “but for” cause of an overdose death for a sentencing enhancement to apply. But making a “but for” determination in the context of illegal drug dealing is often complicated by the existence of multiple drugs in the bloodstreams of those who die. Congress should amend that sentencing enhancement to make it applicable to illegal drug dealers who contribute to a chemical cocktail that causes an overdose death.
As the court described the Burrage case, a longtime drug user died following an extended binge that included using heroin purchased from Marcus A. Burrage. Burrage pleaded not guilty to a superseding indictment alleging, among other things, that he had unlawfully distributed heroin and that “death . . . resulted from the use of th[at] substance” — thus subjecting Burrage to a 20-year mandatory minimum sentence under the penalty enhancement provision of the Controlled Substances Act, 21 U. S. C. § 841(b)(1)(C). After medical experts testified at trial that the user might have died even if he had not taken the heroin, Burrage moved for a judgment of acquittal, arguing that the user’s death could only “result from” heroin use if there was evidence that heroin was a but for cause of death. The trial court denied the motion and instructed the jury that the government only had to prove that heroin was a contributing cause of death. The jury convicted Burrage, and the court sentenced him to 20 years in prison.
The Supreme Court unanimously reversed, in an opinion written by Justice Antonin Scalia. Following a largely textualist approach, he concluded that the “death . .. resulted from” language meant “but for” causation — i.e., the sentencing enhancement applies only where the sale of (for example) heroin could be shown, beyond a reasonable doubt, to be the sole cause of death rather than a contributing factor to the death.
My point here is not to contest Justice Scalia’s reading of this particular statute, although I hope to write another post about the concept of “contributing cause” as opposed to “but for” cause. Instead, my point here is to ask whether, going forward, drug dealers like Burrage should be able to avoid enhanced penalties when those who ingest their drugs have also ingested other drugs. Those who deal drugs like heroin are truly merchants of death, as this interesting article from National Geographic points out in describing the mechanics of how heroin kills. It doesn’t make sense that where the existence of other drugs in a victim creates room for debate about whether the death was the sole, “but for” cause of a death, the enhanced penalty is off the table.
Drug overdose deaths present a frequently-recurring public policy issue for the criminal justice system. For example, while Hoffman’s death is capturing headlines, 22 other people have died over the last two weeks in western Pennsylvania from “bad heroin” being distributed there. Many of these deaths will probably involve illegal drug users who have other illegal drugs in their system. The Government’s brief in Burrage points out that in 2010 at least 46 percent of all overdose deaths from illegal drugs involved more than one drug. Reports about Hoffman’s death, for example, suggest multiple drugs (including prescription drugs) were found at his apartment.
A heroin dealer whose drugs contribute to a death should not be heard to complain that the victim had other drugs in his system. In the oral argument in the case, Burrage’s counsel made no effort to defend this result on public policy grounds — instead repeatedly saying that the argument “should be presented to Congress to amend the statute to incorporate language that addresses that.”
And so Congress should, as Burrage’s counsel suggested, add language to § 841(b)(1)(C) that makes clear that drugs that contribute to a death are subject to the sentencing enhancement. One way to add such language would be to amend the statute as follows (new language underlined):
“Such person [distributing certain controlled substances like heroin] shall be sentenced to a term of imprisonment … and if death or serious bodily injury results from the use of such substance or is contributed to by the use of such substance” shall be punished as provided in the statute — i.e., a 20-year mandatory minimum sentence.
So far, I have argued that there should be a sentencing enhancement for dealing drugs that contribute to a death. But whether that enhanced penalty should be a mandatory minimum sentence or some other enhancement (perhaps an increased sentencing guideline) remains to be determined. I am not a big fan of blunderbuss mandatory minimum sentences, as I have noted in one of my judicial opinions and in a more recent law review article (co-written with Erik Luna). But reform of mandatory minimum sentences should done systematically, not through ad hoc quirks of narrowing constructions of particular provisions. Last week the Senate Judiciary Committee passed a bill that would cut in half mandatory minimum drug sentences, dropping the penalty provision at issue here from 20 years to 10. I’m not necessarily opposed to such a reduction. But if a mandatory minimum of, say, 10 years is going to exist for drug dealing resulting in death, it shouldn’t have an arbitrary escape hatch in it for drug dealers whose victims happen to have ingested multiple drugs. Perhaps as that bill moves forward, the glitch in the drug overdose statute can be addressed to provide that those who contribute to a drug death are included in the provision.