Analysis

Criminal law is supposed to be definite — even those inclined to break the law are entitled to know, before they act, what is a violation.  On Tuesday, the Supreme Court took an hour to explore how to put drug dealers on notice when they will get extra prison time if one of their customers overdoses and dies.  The Justices got a lot of help from one lawyer, and not much from the other in the case of Burrage v. United States.

At issue in the case is a 1986 law that adds on significantly more prison time — perhaps up to life — for a drug dealer if a buyer of illegal drugs dies.  The Court seemed to have two choices. First, the extra time will be imposed only if the drug sold in the transaction itself produced death — a point quite clearly argued by a lawyer from Des Moines.  Second, it is enough if that drug was a contributing cause of the death — the point whose clarity continued to elude a Justice Department attorney.   The problem that emerged:  just what does “contributing cause” mean?

The Court was working from a law that adds to the penalties if the drug deal “results in death.”  Marcus Andrew Burrage of Ames, Iowa, got an extra sentence of twenty years because one of his clients died the day after buying some heroin.  At the trial, the doctors who testified could not say that heroin was the cause.  But the judge, over defense lawyers’ objection, told the jury it only needed to find that the heroin contributed to the death.  The jury convicted Burrage of that separate offense.

Burrage’s lawyer, Angela L. Campbell of Des Moines, told the Court at the outset of the hearing Tuesday that the words “contributing cause” are not in the 1986 law, and that the idea of basing criminal guilt on such an indefinite factor was not generally accepted in the criminal law at the time.

Justice Ruth Bader Ginsburg promptly launched the discussion into assigning guilt when two of three individuals contributed to someone’s illegal death.  She began by asking whether, under Campbell’s view, none of the three could be charged with the death.  The lawyer responded that each of the three could be charged with attempted murder, but they could not be accused individually of causing the death.

Campbell held steadily to her argument that the 1986 law required “but for causation” — that is, Burrage could be sentenced to more prison time only if prosecutors proved that it was the heroin that killed the buyer (or, as the formulation sometimes came out, the prosecutors had to prove that, without the heroin, the buyer would not have died).

Campbell, however, did not do as well with an alternative argument:  that prosecutors had to prove that Burrage had to foresee the buyer’s death as a result of the drug deal.  But, when Justice Samuel A. Alito, Jr., and then Justice Antonin Scalia challenged the word “foreseeability” as itself being too opaque, Campbell promptly returned to her “but for” argument.   “The appropriate question,” she said, “is: ‘But for the heroin, would the victim not have died?'”

That was, of course, her strongest point, since the Justice Department had conceded that prosecutors could not make that showing in Burrage’s case.  Their proof was that heroin was a factor in the death, not its specific cause.

With help from Justice Elena Kagan, Campbell also suggested a back-up argument to the “but for” plea: that is, the 1986 law would be satisfied if there were proof that the illegal drug was “a substantial factor” in the buyer’s death.  When Justice Scalia said he did not understand what that phrase would mean, Burrage’s lawyer said that it was at least a better interpretation of the law than “contributing factor.”  The trial judge, she repeated, would only instruct the jury on the “contributing factor” finding.

If the government was intent on having the law read that a “contributing factor” was enough to bring about an enhanced sentence for a drug buyer’s death, Campbell said, that was an argument it could take to Congress to get the law amended.  “Congress knows how to say what it means,” she said.

The Justices went through a series of hypotheticals about the size of the supply of heroin a drug dealer might sell, and what that might mean about the cause of the buyer’s death, and Campbell repeatedly responded that it was a question for the jury — if it were properly instructed — to decide whether death had resulted from the drug deal.

Part of that exchange was an apparent attempt by some of the Justices to test, again, whether the “foreseeability” argument would provide clarity about the criminal responsibility of the dealer for the buyer’s death.  When Justice Alito asked for “a checklist” of questions that would have to be answered before a jury could decide that a dealer saw a buyer’s death as “foreseeable,” Campbell said that she did not think a checklist could be drawn up, because this would be an issue for the jury to decide case by case, on its own facts.

It was, by then, fully clear that this secondary argument to Campbell’s main point — the need to prove “but for” causation — was not working well for her.

Whatever difficulties met Campbell when she moved away from the “but for” argument turned out to be considerably less than the problems that Benjamin J. Horwich, an Assistant to the U.S. Solicitor General, would have in trying to defend the government’s plea to make “contributing factor” decisive as the meaning of “results in death.”

The government lawyer had started with a suggestion that Congress in 1986 had operated on the premise that if a drug dealer sold a dangerous substance like heroin, the dealer should not be surprised that “an overdose death” would result.

But Chief Justice John G. Roberts, Jr., immediately asked whether it would be sufficient to justify an extra prison sentence “if one little gram of heroin” should be revealed in the body of the buyer after death.  Horwich conceded that, in trying to discern the cause of death, a small amount of drug residue might be “too insubstantial” to demonstrate cause.

Well, Justice Kagan asked, “how much more” residue of a drug would be sufficient to prove cause?  “Would fifty percent be sufficient?” she asked.  “Probably yes,” Horwich answered.  Typically in illegal drug trials, he added, expert witnesses do not testify about a specific cause, but about factors that set in motion the physiological collapse that ends in death.

But Kagan retorted that, in Burrage’s case, the doctors who took the stand had said that they “could not tell what contributed” to the death, only that heroin had made death “more likely.”  They were dealing, she said, only in “a likelihood, a probability….You’re saying that’s enough.”  Horwich said again that the important issue in such a trial was what contributed to the physical breakdown that contributed to death, and that there might be multiple drugs that did so.

Justice Scalia shot back that Congress knew that there might be multiple drugs involved, and it could have said that a dealer was punishable for a buyer’s death if the drug in the deal contributed to the death.  “It did not do that,” the Justice said, and chose instead the phrase “results in death.”

Along the way, Horwich suggested that the government might be satisfied if the Court were to rule that, instead of the drug deal being a “contributing factor,” it was sufficient if it were “a substantial factor.”  But, Scalia reminded him, that was not what the jurors were told they could find in this case. And, in any event, the Justice asked, what does “substantial” mean — twenty percent? ten percent? five percent?  Horwich replied that the answer has to be determined “in relative terms”:  was one cause contributing to death, as compared to another?

Chief Justice Roberts said that, if one were attempting to incorporate in the law the “but for” causation requirement that Campbell was advocating, would there be a better word than the one Congress chose: “results”?  Horwich said it might have chosen “solely.”  Soon, Justice Stephen G. Breyer was telling Horwich that Campbell’s argument “was closer to the law than you are.”

Soon, Justice Kagan and then Justice Sonia Sotomayor told the government lawyer that they were confused by his argument.

Campbell, with three minutes for rebuttal, finished strong, with a pragmatic argument that using the “but for” requirement to justify an added prison term in cases like Burrage’s would not mean turning drug dealers free, because they would still face punishment for having done the drug deal in the first place.  Burrage, she noted, got twenty years for his sale in this case.  There will be punishment for dealers, she said in concluding, but that should be done “within the criminal law,” not by importing into that field the notion of “contributory liability” borrowed from the civil law.

Posted in Burrage v. U.S., Analysis, Featured, Merits Cases

Recommended Citation: Lyle Denniston, Argument recap: What is the cause of an effect?, SCOTUSblog (Nov. 12, 2013, 2:47 PM), http://www.scotusblog.com/2013/11/argument-recap-what-is-the-cause-of-an-effect/