Man sells heroin to a drug addict. He goes a wee bit overboard and mixes the Big H with a few other opiates. He dies, the path leads back to "Lil C", the alias of Marcus Burrage. The feds charge Burrage with distributing a controlled substance and distributing a controlled substance leading to death.
The problem here is obvious, isn't it? When a man takes a cocktail of drugs, how can you blame one drug more than the others? The experts sure couldn't. They couldn't differentiate between the amounts of the various opiates, nor could anyone definitively state that the heroin was either a "but for" or "proximate" cause of the man's death. The best they could say was that it was likely a "contributing cause."
Did we mention that the drug user also had heart and lung disease?
The use of tort terms in criminal jurisprudence is a pet peeve of many old-timers, including a judge who once argued to me, in chambers, that strict liability has no place in criminal law. (As a meek law student, I simply smiled and nodded.)
Alas, even SCOTUS is doing it. The Supreme Court granted certiorari in Mr. Burrage's case after the Eighth Circuit denied Burrage's appeal. According to SCOTUSblog, the questions to be addressed are:
- Whether the crime of distribution of drugs causing death under 21 U.S.C. § 841 is a strict liability crime, without a foreseeability or proximate cause requirement; and
- Whether a person can be convicted for distribution of heroin causing death utilizing jury instructions which allow a conviction when the heroin that was distributed "contributed to," death by "mixed drug intoxication," but was not the sole cause of death of a person.
The Eighth Circuit (and the trial court) refused to apply a proximate cause requirement. The trial court used "contributing cause" language in the jury instructions. The Eighth Circuit cited its prior binding precedent in United States v. Monnier, which held that § 841's death "results from" drugs language is met by a "contributing cause." The trial court in Monnier applied a proximate cause standard, which the Eighth Circuit explicitly rejected.
The Seventh Circuit, meanwhile, didn't approve of the "contributing cause" language in United States v. Hatfield. The trial court had adopted the Monnier language from the Eighth Circuit. The Seventh Circuit felt that the language was too convoluted for the jury and instead remanded the case with orders to use the statutory language without embellishment.
As far as circuit splits go, it's a minor implied disagreement, but apparently, it's enough for SCOTUS.
- United States v. Burrage (Eighth Circuit Blog)
- Burrage v. U.S: When Does Drug Trafficking Cause Death? (Harmless Error Blog)
- Recantations, Evidentiary Rules Cloud Sex Abuse Conviction (FindLaw's Eighth Circuit Blog)