Valdosta Daily Times

Community News Network

November 13, 2013

Supreme Court weighs drug dealer's culpability in user's death

WASHINGTON — 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 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 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 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 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 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.

1
Text Only
Community News Network
  • Why a see-through mouse is a big deal for scientists

    A group of Caltech researchers announced in Cell Thursday their success in making an entire organism transparent. Unfortunately, this isn't any kind of "Invisible Man" scenario: The organism in question is a mouse, and the mouse in question is quite dead.

    July 31, 2014

  • Screen Shot 2014-07-31 at 2.12.55 PM.png VIDEO: Five-year-old doesn't want her brother to grow up

    Sadie, an adorable 5-year-old from Phoenix, wants her brother to stay young forever, so much so that her emotional reaction to the thought of him getting older has drawn more than 10 million views on YouTube.

    July 31, 2014 1 Photo

  • lockport-police.jpg Police department turns to Facebook for guidance on use of 'negro'

    What seems to be a data entry mistake by a small town police department in western New York has turned into a social media firestorm centered around the word "negro" and whether it's acceptable to use in modern society.

    July 31, 2014 3 Photos

  • The virtues of lying

    Two computational scientists set out recently to simulate the effects of lying in a virtual human population. Their results, published in the Proceedings of the Royal Society B, show that lying is essential for the growth of a cohesive social network.

    July 31, 2014

  • Sunburn isn't the only sign of summer that can leave you itchy and blistered

    You've got a rash. You quickly rule out the usual suspects: You haven't been gardening or hiking or even picnicking, so it's probably not a plant irritant such as poison ivy or wild parsnip; likewise, it's probably not chiggers or ticks carrying Lyme disease; and you haven't been swimming in a pond, which can harbor the parasite that causes swimmer's itch.

    July 30, 2014

  • Survey results in legislation to battle sexual assault on campus

    Missouri U.S. Sen. Claire McCaskill joined a bipartisan group of senators Wednesday to announce legislation that aims to reduce the number of sexual assaults on college campuses.

    July 30, 2014

  • An alarming threat to airlines that no one's talking about

    It's been an abysmal year for the flying public. Planes have crashed in bad weather, disappeared over the Indian Ocean and tragically crossed paths with anti-aircraft missiles over Ukraine.

    July 30, 2014

  • Sharknado.jpg Sharknado 2 set to attack viewers tonight

    In the face of another "Sharknado" TV movie (the even-more-inane "Sharknado 2: The Second One," premiering Wednesday night on Syfy), there isn't much for a critic to say except to echo what the characters themselves so frequently scream when confronted by a great white shark spinning toward them in a funnel cloud:
    "LOOK OUT!!"

    July 30, 2014 1 Photo

  • 20140729-AMX-GIVHAN292.jpg Spanx stretches into new territory with jeans, but promised magic is elusive

    The Spanx empire of stomach-flattening, thigh-slimming, jiggle-reducing foundation garments has expanded to include what the brand promises is the mother of all body-shaping miracles: Spanx jeans.

    July 29, 2014 1 Photo

  • Medical marijuana opponents' most powerful argument is at odds with a mountain of research

    Opponents of marijuana legalization are rapidly losing the battle for hearts and minds. Simply put, the public understands that however you measure the consequences of marijuana use, the drug is significantly less harmful to users and society than tobacco or alcohol.

    July 29, 2014

Top News
Poll

Do you agree with the millage rate increases?

Yes. We need to maintain services
No. Services should have been cut.
     View Results