Drug Dealer Liability for Death: Contributing v. “But For” Causation

An interesting recent case from the U.S. Supreme Court addresses the criminal liability of a heroin dealer for the death of a user. In the case of Burrage v. United States, the defendant was charged with distribution of a controlled substance.  In addition, there was an enhancement due to death resulting from the use of the heroin.

The “death results from” enhancement carried a mandatory minimum of 20 years in prison.  There was no question that the defendant sold the heroin to the deceased user.   This was not at issue in the case.  How to interpret “death results from” was the question.

Question is Whether Death Would Not Have Occurred But For the Drugs

Specifically, the Court addressed the causation requirement.   In short,  the question was whether the drugs must be a “but for” cause of death or must they only contribute to the death. The Court, in analyzing the Controlled Substances Act, found that “results from” requires a “but for” cause and effect.

The case is interesting for any number of reasons, not the least of which is the recent death of Phillip Seymour Hoffman, which incidentally this case preceded.  This case was brought under the Federal Control Substances Act so it will not necessarily affect that case. The Supreme Court recognized that a number of states followed the lessor contributing factor analysis. It does not appear that New York is one. Whether Burrage ultimately has any bearing or not, it is an interesting discussion in light of that tragic situation.

Case Brought Under Federal Law – State Court Analysis May Vary

The same holds true for New Mexico.  New Mexico follows the “but for” standard set forth by the Court.  As such, the “results from” analysis would be somewhat similar to the Burrage analysis.  

In the Burrage case, the experts all agreed that the heroin contributed to the death. However, none were able to say that he would not have died “but for” the use of the heroin. Like many illegal drug users, there were many other drugs in the deceased’s system that could have also contributed to his death. The Court cited the CDC’s the National Center for Injury Prevention and Control stating that, “ at least 46 percent of overdose deaths in 2010 involved more than one drug.”

The Experts Could Not Rule Out Contributing Cause of Death from Other Drugs

The Court expressly refused to construe the “results from” language to implicate everyone who may have contributed to the death. Instead, for the death “results from” requirement, there must be a showing that the deceased would not have died but for the use of the heroin. In other words, the heroin was the actual, not a contributing, cause of the death.

The Court set forth a number of examples to illustrate. The most useful was a baseball example where a player hit a home run in the first inning. Assuming the score ended 1 to 0, then the player could be credited with the game winning home run. However, if the game ended 5 to 2, then one would be hard pressed to say the player hit the game winning home run even though he did indeed contribute to the win.

The Court recognized that 5 states have adopted a more lenient rule adopting the “contributed to” standard. These states would perhaps allow liability across multiple parties where there were multiple concurrent contributing causes of death.

As stated earlier, New Mexico is not among those states. And for good reason, as the Court suggested, “Taken literally, its ‘contributing cause’ test would treat as a cause-in-fact every act or omission that makes a positive incremental contribution, however small, to a particular result.”

Burden of Proof Requires Showing of “But For” Causation

The Court set forth the problem of setting a standard. Where would the line be drawn in terms of the degree of causation (50%, 20%, 10%…)? The Court stated that the loose standard did not meet the beyond a reasonable doubt standard in criminal trials.

There will be many that believe as argued by the Government that the standard is too high and the costs of illegal drug use dictate a more lenient rule. The Court addressed this along dismissing the Government’s contention that a “but for” causation is an almost impossible barrier. The Court cited cases where in fact, “but for” causation had been shown in the deaths of users with multiple drugs in their systems.

“But For” Causation High But Not Impossible Burden

One area where the “but for” requirement will likely be met is the tainted heroin cases that are popping up around the country. As recently highlighted on NPR, there have been a rash of overdose deaths related to the lacing of heroin with fentanyl, which is opioid, 10 to 100 times more potent than heroin. It is believed that heroin users are inadvertently overdosing on the fentanyl-laced heroin when using their normal doses of what they believe to be normal strength heroin.

This would seem to be much more clear-cut case of “but for” cause of death. Between this and the typical drug overdose, there will be a continuum of causation that will require a case-by-case analysis. In the end, it will require expert medical opinion regarding the “but for” cause of death, which in this case the Government was unable to bring to trial.

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