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Argument preview: Crime and death’s cause

At 11 a.m. next Tuesday, the Supreme Court will hold one hour of oral argument on the proof that federal prosecutors must offer to get an enhanced prison sentence for a drug dealer when a customer who bought heroin died.  Arguing for the convicted Iowa man in the case of Burrage v. United States will be Angela L. Campbell, of the Des Moines law firm of Dickey & Campbell.   Arguing for the federal government will be Benjamin J. Horwich, an assistant to the Solicitor General.


Two days after an All-American basketball player at the University of Maryland, Leonard “Len” Bias, had been chosen as the No. 2 draft pick to play as a pro for the Boston Celtics, he was found dead, apparently of a cocaine overdose.   His death led outraged members of Congress to decide that the time had come to impose stronger penalties for dealing in drugs.

The result was passage of the Anti-Drug Abuse Act, and one of its most significant new provisions was to mandate longer sentences when a user of illegal drugs died.  In addition to any sentence that an individual would get for trafficking in drugs, a sentence of at least twenty years, with a maximum of life for a repeat offender, must be imposed.  The Supreme Court, in the case of Burrage v. United States, will be deciding what Congress meant when it added penalties for a transaction that “results in death” to the buyer.  In short, it is reviewing the issue of cause.

The case involves Marcus Andrew Burrage, an Ames, Iowa, man whom local police knew by a street name, “Lil C.”   He was sentenced to twenty years for trafficking in heroin, and for twenty years because the purchaser died.  (Although given two separate sentences, he was ordered to serve them together rather than back to back.  His appeal to the Supreme Court challenges only the portion of his sentence imposed for the death of the purchaser.)

In April 2010, Joshua Banka of Nevada, Iowa, was found dead in the bathroom of his home by his wife.  That was the morning after he had used a combination of drugs, including heroin.   He had bought the heroin from Burrage the day before at the parking lot of a grocery store in Ames, prosecutors said.

At Burrage’s trial, two doctors took the stand.  Each of them said that heroin was a contributing cause of Banka’s death, but neither could say that he would not have died had he not taken the heroin.  One of those doctors, who had performed an autopsy on Banka’s body, testified that he had died from a mixed group of drugs, including the heroin.

Burrage’s defense lawyers asked the judge to instruct the jury that they could convict him of having caused Banka’s death only if they were persuaded that the heroin was the actual cause of death, or that death had been the foreseeable result of using the heroin.  The judge refused and, instead, told the jury — as federal prosecutors had requested — that it could find Burrage guilty if the heroin was “a contributing cause” of Banka’s death.   The jury found Burrage guilty on both counts, and the judge imposed the two twenty-year sentences.

The Eighth Circuit rejected Burrage’s appeal.  On the “results in death” question, the court of appeals relied upon its own prior ruling declaring that it was enough if the illegal drug was a “contributing cause” to the buyer.  It found that both of the doctors who had testified had said that heroin was a part of the drug mix that took Banka’s life.

Burrage’s petition was filed in the Supreme Court in late November last year.

Petition for certiorari

In taking the case to the Supreme Court, Burrage’s lawyers chose to frame the issue about the meaning of the 1986 law as a question of whether this was a “strict liability” law — that is, whether the single fact of committing the crime resulting in death from an illegal drug was enough to establish guilt for the death, too.

Prosecutors, the petition argued, should either have to prove that the drug dealer sold the drug knowing that death was “foreseeable” from the transaction, or that the illegal drug was itself the cause of death.   Thus, the petition asked two questions: whether the “results in death” crime required proof either of foreseeability or direct cause of death, and whether a conviction for that crime could be based on a jury instruction that it was enough that the illegal drug was a contributing but not the sole cause of death.

The Justice Department chose not to respond to the petition, but the Court on December 27 asked for a response.  The Burrage petition had also raised a third question, about the way the police in Ames had conducted a photo line-up in the case.   Ultimately, the Court declined to review that issue.

The petition contended that the federal appeals courts were split on the “results in death” issue, with the Seventh and Eighth Circuits reaching conflicting rulings.   The Seventh Circuit, the petition noted, had said that the prosecution had to offer some proof of “foreseeability or state of mind,” but the Eighth Circuit’s approach imposes strict liability.

The Justice Department urged the Court not to hear Burrage’s case, arguing that the 1986 law did not impose any requirement of foreseeability, that there was no disagreement among the circuits on that point, and that, on the cause issue, it was sufficient that the illegal drug was a contributing factor.  Whatever differing views the Seventh and Eighth Circuits had on the instructions on the cause issue were not sufficient to justify Court review, the Department said.

The Court granted review on April 29, limiting its consideration to the issues of foreseeability and the scope of the “results in death” language in the law, together with the jury instructions to carry it out.  Because Burrage was unable to pay the costs of the appeal, the Court agreed to appoint the lawyer on his petition — Angela L. Campbell of Des Moines — to brief and argue the case before the Justices.

Briefs on the merits

Burrage’s brief on the merits once again presented the case through the prism of “strict liability,” and cautioned the Court that a decision against his claims about causation would result in the creation of “a vast new category of strict liability crimes.”   A number of federal criminal laws, the brief said, contain language having to do with the consequences of a crime, and thus the need to establish a link between the underlying crime and the crime of consequence that results.

The brief suggested that the “contributing cause” interpretation of the “results in death” provision would bring into the criminal law a “causation standard” that is borrowed from civil law.  That standard, the brief added, cannot satisfy either the need to show that the result was foreseeable, or that the illegal drug was the “substantial” cause of death.

That document also traced the requirement for stronger proof back to the common law, finding there a strong indication that, when a crime has multiple causes, it is necessary to show whether the claimed cause was, in fact, the actual cause.  In short, the brief said, the 1986 law should be interpreted to mean that the illegal drug was “the cause without which the event could not have occurred.”

This is a sentence-enhancing law, the brief noted, and the Court’s precedents impose on prosecutors stronger proof requirements when they seek to have a stiffer sentence imposed.

The federal government’s brief on the merits agreed that the language of the 1986 law does require “proof of causation.”  But then the brief went on to contend that the proof required under this law should not be “but for” causation, because that requirement of a specific cause does not fit well in a case where death has resulted from multiple causes.

Juries, the Justice Department filing contended, will be better able to sort through the multiple causes in trying to determine the basic issue of causation.   That approach, especially in jury instructions, the brief added, is more workable because many deaths that result from overdoses of drugs involve combinations of different substances.  “Drugs in combination can be especially lethal,” the government said.

In cases like this one, where death has occurred from a drug overdose, there is no need for a jury instruction that it has to find that the drug dealer foresaw that death could result, the government argued.  The kind of drugs listed in illegal drug law as the most dangerous and most subject to abuse — that is, those on so-called “Schedule I” — are understood to have a lethal potential any time they are ingested, especially in overdose situations.

The Court, the government also contended, should not be concerned about the potential for creating “strict liability” crimes, because those who deal in dangerous drugs are punished for the consequences of the very criminal act in which they engaged.

Burrage’s challenge has drawn the amici support of two advocacy organizations, Families Against Mandatory Minimums, and the National Association of Criminal Defense Lawyers.   The Justice Department is backed by nine state governments.


The Court may have to travel a somewhat convoluted path of reasoning to resolve this case — and that is exactly what both sides have done in the briefing.  The opposing sides start with an agreement — that is, that there must be some proof of causation to trigger the 1986 law’s “results in death” provision as a factor in sentencing.  But then they diverge sharply.

Burrage proposes that the answer come from the need to avoid imposing strict liability on an accused individual, without some indication that the dire consequence of death would be known to follow and did follow from the underlying crime.  The government, in turn, proposes that because the kind of drug involved here is one of the most dangerous, dire consequences are sure to follow, so it is sufficient to show that the deadly cocktail included the illegal drug sold by the dealer.

The Court has the option, though, of returning to the specific language of the provision, and taking it at face value.  What does “results in” mean, when it is the basis for adding further prison time as punishment?  The first crime, of course, is selling the drug.  It is a serious crime that can result in a number of personal and cultural woes, so it deserves its own punishment upon conviction.

But, if the user who bought the drug dies, then a second crime has occurred, and will draw its own punishment upon — what?  Proof that the second crime flowed from the first — in other words, that it “resulted from” the first crime.

That opens up a clear choice for the Court: to decide that, in passing the 1986 law, Congress felt that illegal drugs were so lethal that death of the user is probably predictable, in which case the two crimes merge as one, or, on the other hand, to decide that Congress felt that, while those drugs are dangerous, prosecutors should have to show something beyond sale in order to justify separate punishment.

Recommended Citation: Lyle Denniston, Argument preview: Crime and death’s cause, SCOTUSblog (Nov. 11, 2013, 12:09 AM),