Glasgow Daily Times, Glasgow, KY

Breaking News

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
  • Screen Shot 2014-04-22 at 4.42.47 PM.png VIDEO: Leopard attacks crowd in India

    A leopard caused panic in the city of Chandrapur when it sprung from the roof of a house and charged at rescue workers.

    April 22, 2014 1 Photo

  • The top 12 government programs ever

    Which federal programs and policies succeed in being cost-effective and targeting those who need them most? These two tests are obvious: After all, why would we spend taxpayers' money on a program that isn't worth what it costs or helps those who do not need help?

    April 22, 2014

  • In cuffs... 'Warlock' in West Virginia accused of sexual assault

    Police in West Virginia say a man claiming to be a “warlock” used promises of magical spells to lure children into committing sexual acts with him.

    April 22, 2014 1 Photo

  • Cats outsmart the researchers

    I knew a lot had been written about dogs, and I assumed there must be at least a handful of studies on cats. But after weeks of scouring the scientific world for someone - anyone - who studied how cats think, all I was left with was this statement, laughed over the phone to me by one of the world's top animal cognition experts, a Hungarian scientist named Ádám Miklósi.

    April 22, 2014

  • McCain 1 House Republicans are more active on Twitter than Democrats

    Your representative in the House is almost certainly on Twitter. Your senator definitely is. But how are they using the social network? Are Democrats more active than Republicans, or vice versa? Who has the most followers on the Hill?

    April 22, 2014 1 Photo

  • Do your genes make you procrastinate?

    Procrastinators, in my experience, like nothing better than explaining away their procrastination: General busyness, fear of failure, and simple laziness are just a handful of the excuses and theories often tossed around. Now researchers from the University of Colorado Boulder have added another option to the list: genetics.

    April 21, 2014

  • Do White Castle prices tell us anything about the minimum wage?

    The paper looked at how many delicious steamed sliders the minimum wage has been able to purchase over time. The point is that as it notes, in 1981, the $3.35 minimum could buy a whole dozen. Today, at $7.25, it could purchase just 10.

    April 21, 2014

  • VIDEO: Moose charges snowmobile, flees after warning shot

    While snowmobiling in New England, Bob and Janis Powell of Maine were charged by a moose and caught the entire attack on camera.

    April 21, 2014

  • Can Hillary Clinton rock the cradle and the world?

    What's most interesting to contemplate is the effect becoming a grandmother will have on Hillary's ambition. It's one of life's unfairnesses that a woman's peak career years often coincide with her peak childbearing years.

    April 21, 2014

  • Smartphone kill switches are coming

    Smartphones need kill switches. It's a relatively easy solution to the pricey (and irritating) problem of smartphone theft. But who would have thought that the big carriers would team up with Apple, Google, Microsoft, Nokia, Samsung and lots of other manufacturers to voluntarily begin adding the technology by July 2015? The cooperative spirit! It makes so much sense!

    April 18, 2014