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SCOTUS unanimously reverses 8th Circuit’s intepretation of causation required by mandatory minimum provision of Controlled Substances Act

Marcus Burrage v. United States, USSC 12-7515, 1/27/14, reversing United States v. Burrage, 687 F.3d 1015 (8th Cir. 2012).

Docket here.  SCOTUSblog analysis here.

The Uniform Controlled Substances Act imposes a 20-year mandatory minimum sentence on a defendant who unlawfully distributes a Schedule I or II drug, when “death or serious bodily injury results from the use of such substance.”  21 U.S.C. § 841(a)(1), (b)(1)(A)-(C) (2012) ed.)  The issue in this case is whether that provision applies when a covered drug (here, heroin) “contributes to, but is not a but-for cause of, the victim’s death or injury.”  Slip op. at 1.

Joshua Banka died of a drug overdose.  There is no dispute that Burrage sold heroin to him.  The problem is that forensic toxicologists found multiple drugs in his at the time of Banka’s death.  Two doctors testified that heroin was a “contributing factor,” but they could not say that Banka would have lived if he hadn’t taken heroin.    The district court then instructed the jury that the Government only had to prove that Burrage’s heroin was a “contributing cause” of Banka’s death.  The jury convicted Burrage, and the court sentenced him to the mandatory minimum of 20 years.   SCOTUS reversed:

We decline to adopt the Government’s permissive interpretation of §841(b)(1). The language Congress enacted requires death to “result from” use of the unlawfully distributed drug, not from a combination of factors to which drug use merely contributed. Congress could have written §841(b)(1)(C) to impose a mandatory minimum when the underlying crime “contributes to” death or serious bodily injury, or adopted a modified causation test tailored to cases involving concurrent causes, as five States have done, see Ala. Code §13A–2–5(a) (2005); Ark. Code Ann.§5–2–205 (2006); Me. Rev. Stat. Ann., Tit. 17–A, §33(2006); N. D. Cent. Code Ann. §12.1–02–05 (Lexis 2012); Tex. Penal Code Ann. §6.04 (West 2011). It chose instead to use language that imports but-for causality. Especially in the interpretation of a criminal statute subject to the rule of lenity, see Moskal v. United States, 498 U. S. 103, 107–108 (1990), we cannot give the text a meaning that is different from its ordinary, accepted meaning, and that disfavors the defendant.  Slip op. at 12.

On the surface, this decision might seem to have little application to criminal practice in Wisconsin state courts.  See post re decision to grant cert here. But Scalia’s analysis of the “results from” requirement presents an opportunity to argue for a restrictive interpretation of similar causation requirements in all sorts of statutes–federal and state.  Throughout the decision, he cites state and federal cases construing the phrases “because of,” “based on,” “by reason of,” and “results in” and says all of them require “but-for causation.” Justice Ginsburg, who concurred, spotted the risks associated with Scalia’s sweeping analysis.  “Because of” in antidiscrimination laws should not be read to mean “solely because of,” she wrote.  “I do not agree that words ‘appearing in two or more legal rules, and so in connection with more than one purpose, have and should have precisely the same scope in all of them.'”  Concurring op. at 1.

What does “but for” mean?  That something would not have occurred in the absence of (or but for) the defendant’s conduct.   It seems the Government conjured a parade of horribles to scare the justices away from this “insuperable barrier,” but the court didn’t flinch:

Indeed, it is more likely the Government’s proposal that “cannot be reconciled with sound policy,” given the need for clarity and certainty in the criminal law. . . Taken literally, its “contributing cause” test would treat as cause-in-fact every act or omission that makes a positive incremental contribution, however small, to a particular result . . . Is it sufficient that use of a drug made the victim’s death 50 percent more likely?  Fifteen percent?  Five? Who knows.  Uncertainty of that kind cannot be squared with the beyond-a-reasonable doubt standard applicable in criminal trials or with the need to express criminal laws in terms ordinary persons can comprehend.” Slip op. 13-14.

Baseball fans can read Scalia’s long-winded analogy to explain the simple “but-for” idea at pages 7-8.  The rest of us can wonder whether SCOTUS is capable of thinking outside the ballpark to invoke a different sport or activity to make its points.  Judging from this NYT article, “This Bench Belongs in a Dugout,” the answer, for now, is “no.”

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