Post Date: November 13, 2013
An active and curious Supreme Court heard oral argument in Burrage v. United States (No. 12-7515) on November 12, 2013. A summary of the background of the case is here; the briefs and oral argument transcript are here and FAMM’s amicus brief is here.
At issue in the case is what the government has to prove to a jury to secure a conviction for drug trafficking that “results in death.” The law, 21 U.S.C. §841(b)(1)(A) says that a defendant who provides a drug to someone that “results in death” must serve a mandatory minimum sentence of twenty years. In the case, Mr. Burrage, the defendant, sold heroin to a man who later died of an overdose.
Mr. Burrage’s lawyer told the justices that the mandatory minimum could only be imposed if the drug sold by the defendant produced death. That is known as “but for” causation. It means that but for the drug, the defendant would not have died. That was important because in this case, the medical experts could not say that but for the heroin, death would have occurred. They couldn’t even say if the heroin contributed to the death. They could only say that the heroin made the death “more likely.”
The government’s lawyer did not agree. He said the government only needed to prove that the drug was a “contributing cause” of the death. In fact, the government agreed that in Burrage’s case, “but for” causation had not been proved. But the justices were skeptical. They asked how a jury could figure out the amount of a drug that “contributed” to death and if there was some threshold that would land the defendant in prison for twenty years. Justice Scalia said that Congress could have written the statute to say that the drug sold need only have “contributed” to death. Instead, he said, Congress insisted that a prosecutor must prove that the death resulted from the supplied drugs.
Observers said that Mr. Burrage’s lawyer, while she got a lot of hard questions, had an easier time than did the lawyer for the United States who seemed to have failed to convince all the Justices that the government’s position was right. Burrage will be decided by the court before next summer.