The Land :: www.TheLandOnline.com

Nuts & Bolts

November 14, 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
Nuts & Bolts
  • 130408_NT_BEA_good kids We're raising a generation of timid kids

    A week ago, a woman was charged with leaving her child in the car while she went into a store. Her 11-year-old child. This week, a woman was arrested for allowing her 9-year-old daughter to go to the park alone. Which raises just one question: America, what the heck is wrong with you?

    July 18, 2014 1 Photo

  • Your chocolate addiction is only going to get more expensive

    For nearly two years, cocoa prices have been on the rise. Finally, that's affecting the price you pay for a bar of chocolate - and there's reason to believe it's only the beginning.

    July 18, 2014

  • Afghanistan vet who ran to grenade gets Medal of Honor

    A former Marine Corps corporal who was severely wounded when he risked his life to shield a squad mate from a grenade blast in Afghanistan was awarded the nation's highest military decoration Thursday.

    June 20, 2014

  • May 2014 was the hottest may in recorded history

    According to new data released this week, May 2014 is officially the warmest May in recorded history.
    Both NASA and the Japan Meteorological Agency have tentatively ranked May at the top of historical measurements, though NASA's numbers are preliminary because crucial information is still missing from China.

    June 20, 2014

  • Nelly-elephant.jpg Bet the farm: 5 'psychic' animals predict soccer victories

    Need some guidance on whom to place your bets for this year's World Cup? Since Paul the Octopus achieved a prediction success rate of 85 percent in 2010, hosts of animal oracles around the world have sought attention as soccer sages. Here's a look at a few of them.

    June 20, 2014 1 Photo

  • Is the FDA waging a war on artisanal cheese?

    Is the Food and Drug Administration waging a war on artisanal cheese?
    The answer depends on your perspective. But this much is certain: The agency's answer to New York regulators about using wooden boards to age cheese has caused an uproar in the domestic industry and raised questions about the status of imported cheeses that use the same process.

    June 12, 2014

  • Texting while driving is latest teen risk as smoking declines

    While smoking among American teens has fallen to a 22-year low, most adolescents admit to engaging in a new type of risky behavior: texting while driving.

    June 12, 2014

  • No one is against devoted dads

    Father's Day is Sunday, which means that it's time for pundits and politicians to scold the American public - with special ire reserved for black members of the American public - for our supposed indifference to the wonder and awe of fatherhood.

    June 12, 2014

  • Lindley, Tom.jpg College World Series finally onto baseball-like scores

    College baseball deadened its aluminum bats three years ago, deflating the game's offense and dialing back runaway scores. Fans who watch this year's College World Series may actually catch a shutout, or even a pitchers' duel.

    June 12, 2014 1 Photo

  • Jeffrey Land mg.jpg Tough scrape: Inmate faces new charges after failed escape try

    An inmate at a Georgia detention center could spend more time behind bars after officials said he tried to use a piece of metal to cut through his cell wall in an apparent escape attempt.

    June 12, 2014 1 Photo

Featured Ads
Hyperlocal Search
Premier Guide
Find a business

Walking Fingers
Maps, Menus, Store hours, Coupons, and more...
Premier Guide
The Land's Twitter Feed