On the day before Joshua Banka was scheduled to enter a court-ordered drug rehabilitation program, he decided to tie one on. He bought, stole and used all manner of drugs — Oxycontin, marijuana and prescription drugs — as well as a gram of heroin purchased from a dealer named Marcus Andrew Burrage.
By morning, Banka was dead, and Burrage eventually was charged not only with distributing heroin but the additional federal crime of distribution of heroin resulting in death.
Experts at Burrage’s trial could not swear that it was the heroin alone that killed Banka. But Burrage was convicted after a federal district judge told the jury it was enough for the government to prove that the heroin was a contributing cause, even if not the primary cause, of Banka’s death.
The Supreme Court considered the case Tuesday , and a number of justices seemed to believe that the government must prove more before a drug dealer gets the enhanced penalties the law prescribes “if death or serious bodily injury results from the use” of the illicit drugs.
Burrage attorney Angela L. Campbell of Des Moines, Iowa, told the court that prosecutors must establish what lawyers call “but-for causation.”
“In this particular case, but for the use of the heroin, the victim would not have died,” Campbell said.
Additionally, she said, the government needs to show that Burrage should have foreseen Banka’s death as a likely consequence of selling him drugs.
Campbell acknowledged the government’s argument that overdose deaths often result from a mixture of drugs and that it is sometimes impossible to identify one as the cause. But the law doesn’t address that possibility, she said.
“That’s an argument that should be presented to Congress to amend the statute to incorporate language that addresses that,” Campbell said. “Congress knows how to address a contributing-cause standard. They said it in numerous other statutes that a certain act contributes to a death, that the result is in whole or in part a result of the defendant’s action.”
A number of justices seemed receptive to the point. But she had more trouble with her second argument, about “foreseeability.”
Justice Ruth Bader Ginsburg asked Campbell whether she agreed that “there is a foreseeable risk that someone who purchases heroin will overdose.”
Justice Samuel A. Alito Jr. said “I don’t see how this foreseeability test would work.” He raised the prospect of a “responsible” heroin dealer who “wants to sell heroin but doesn’t want to cause anybody to die. What would be kind of the checklist that the person would go through?”
Still, Assistant Solicitor General Benjamin J. Horwich received the tougher questioning.
He maintained that Burrage was precisely who Congress had in mind when it enacted tougher sentencing for those whose drug dealing resulted in death.
“It’s perfectly ordinary to speak of a drug as contributing to an overdose,” Horwich said. “And in the context of the Controlled Substances Act, there is no room to argue that a heroin user’s overdose death comes as a surprise.”
But Chief Justice John G. Roberts Jr. interrupted. “So one little grain of heroin that you discover is in the body, and that person’s going away for whatever it is, 20 years?” he asked.
Horwich said that wasn’t really the issue in the case. The issue is whether it is enough that the drugs be a contributing cause to death to satisfy the statute, he said.
But that prompted a comment from Justice Elena Kagan. “It seems to me that the dispute before this court is this: You have somebody who’s taken five drugs. One of them is heroin. And the experts get on the stand and they say: ‘Did the heroin cause the death?’ And the experts say: ‘Really can’t say whether the heroin caused the death in the sense that if the — if he hadn’t taken the heroin, he wouldn’t have died.’ ”
That led to a discussion of whether the jury should consider likelihoods and probabilities and Horwich’s suggestion that juries consider whether the drug was a “substantial factor” in the victim’s death.
Justice Stephen G. Breyer suggested that such an opaque phrase might be good, “and let the lower courts figure it out, so we don’t confuse the entire bar and the entire Congress and everything.”
But Justice Antonin Scalia didn’t think much of that proposal. “Because of that imprecision, some poor devils will have to go to jail for a longer period than otherwise, you know,” he said.
The case is Burrage v. United States.