The Stanly News and Press (Albemarle, NC)

State & National News

November 14, 2013

Supreme Court weighs drug dealer's culpability in user's death

Thursday, November 14, 2013 — On the day before Joshua Banka was scheduled to enter a court-ordered drug rehabilitation program, he decided to tie one on. He bought, stole and used all manner of drugs — Oxycontin, marijuana and prescription drugs — as well as a gram of heroin purchased from a dealer named Marcus Andrew Burrage.

By morning, Banka was dead, and Burrage eventually was charged not only with distributing heroin but the additional federal crime of distribution of heroin resulting in death.

Experts at Burrage's trial could not swear that it was the heroin alone that killed Banka. But Burrage was convicted after a federal district judge told the jury it was enough for the government to prove that the heroin was a contributing cause, even if not the primary cause, of Banka's death.

The Supreme Court considered the case Tuesday, and a number of justices seemed to believe that the government must prove more before a drug dealer gets the enhanced penalties the law prescribes "if death or serious bodily injury results from the use" of the illicit drugs.

Burrage attorney Angela Campbell of Des Moines, Iowa told the court that prosecutors must establish what lawyers call "but-for causation."

"In this particular case, but for the use of the heroin, the victim would not have died," Campbell said.

Additionally, she said, the government needs to show that Burrage should have foreseen Banka's death as a likely consequence of selling him drugs.

Campbell acknowledged the government's argument that overdose deaths often result from a mixture of drugs and that it is sometimes impossible to identify one as the cause. But the law doesn't address that possibility, she said.

"That's an argument that should be presented to Congress to amend the statute to incorporate language that addresses that," Campbell said. "Congress knows how to address a contributing-cause standard. They said it in numerous other statutes that a certain act contributes to a death, that the result is in whole or in part a result of the defendant's action."

A number of justices seemed receptive to the point. But she had more trouble with her second argument, about "foreseeability."

Justice Ruth Bader Ginsburg asked Campbell whether she agreed that "there is a foreseeable risk that someone who purchases heroin will overdose."

Justice Samuel Alito Jr. said, "I don't see how this foreseeability test would work." He raised the prospect of a "responsible" heroin dealer who "wants to sell heroin but doesn't want to cause anybody to die. What would be kind of the checklist that the person would go through?"

Still, Assistant Solicitor General Benjamin Horwich received the tougher questioning.

He maintained that Burrage was precisely who Congress had in mind when it enacted tougher sentencing for those whose drug dealing resulted in death.

"It's perfectly ordinary to speak of a drug as contributing to an overdose," Horwich said. "And in the context of the Controlled Substances Act, there is no room to argue that a heroin user's overdose death comes as a surprise."

But Chief Justice John Roberts Jr. interrupted. "So one little grain of heroin that you discover is in the body, and that person's going away for whatever it is, 20 years?" he asked.

Horwich said that wasn't really the issue in the case. The issue is whether it is enough that the drugs be a contributing cause to death to satisfy the statute, he said.

But that prompted a comment from Justice Elena Kagan. "It seems to me that the dispute before this court is this: You have somebody who's taken five drugs. One of them is heroin. And the experts get on the stand and they say: Did the heroin cause the death? And the experts say: Really can't say whether the heroin caused the death in the sense that if the — if he hadn't taken the heroin, he wouldn't have died."

That led to a discussion of whether the jury should consider likelihoods and probabilities and Horwich's suggestion that juries consider whether the drug was a "substantial factor" in the victim's death.

Justice Stephen Breyer suggested that such an opaque phrase might be good, "and let the lower courts figure it out, so we don't confuse the entire bar and the entire Congress and everything."

But Justice Antonin Scalia didn't think much of that proposal. "Because of that imprecision, some poor devils will have to go to jail for a longer period than otherwise, you know," he said.

1
Text Only
State & National News
  • Winter created urge to get out of town

    This year's harsh winter contributed to an exodus of travelers seeking refuge from the weather by booking tours, cruises and hotels in record numbers, according to AAA Carolinas Travel Agency. Trips taken by those booking through AAA, the largest leisure travel agency in the Carolinas, showed an increase in tours (15 percent), cruises (12 percent) and hotels (33 percent) over the first quarter of 2013.

    April 22, 2014

  • NCSU Study: The Trials of the Cherokee Were Reflected In Their Skulls

    Researchers from North Carolina State University and the University of Tennessee have found that environmental stressors – from the Trail of Tears to the Civil War – led to significant changes in the shape of skulls in the eastern and western bands of the Cherokee people. The findings highlight the role of environmental factors in shaping our physical characteristics.

    April 22, 2014

  • Do your genes make you procrastinate?

    NEW YORK - Procrastinators, in my experience, like nothing better than explaining away their procrastination: General busyness, fear of failure, and simple laziness are just a handful of the excuses and theories often tossed around. Now researchers from the University of Colorado Boulder have added another option to the list: genetics.

    April 22, 2014

  • NCSU STUDY: Impurity Size Affects Performance of Emerging Superconductive Material

    Research from North Carolina State University finds that impurities can hurt performance – or possibly provide benefits – in a key superconductive material that is expected to find use in a host of applications, including future particle colliders. The size of the impurities determines whether they help or hinder the material’s performance.

    April 22, 2014

  • U.S. Archivist to Speak at NC State Commencement

    David S. Ferriero, archivist of the United States, will deliver NC State’s commencement address on Saturday, May 10, at 9 a.m. at the PNC Center in Raleigh.

    April 22, 2014

  • Smartphone kill switches are coming

    Smartphones need kill switches. It's a relatively easy solution to the pricey (and irritating) problem of smartphone theft. But who would have thought that the big carriers would team up with Apple, Google, Microsoft, Nokia, Samsung and lots of other manufacturers to voluntarily begin adding the technology by July 2015? The cooperative spirit! It makes so much sense!

    April 20, 2014

  • Low blood-sugar levels make for grousing spouses

    Husbands and wives reported being most unhappy with their spouses when their blood-sugar levels were lowest, usually at night, according to research released this week in the Proceedings of the National Academy of Sciences. Missing a meal, dieting or just being hungry may be the reason, researchers said.

    April 20, 2014

  • Consumer spending on health care jumps as Affordable Care Act takes hold

    WASHINGTON - Nancy Beigel has known since September that she would need hernia surgery. She couldn't afford it on her $11,000 yearly income until she became eligible for Medicaid in January through President Barack Obama's signature health care law.

    April 19, 2014

  • Why Facebook is getting into the banking game

    Who would want to use Facebook as a bank? That's the question that immediately arises from news that the social network intends to get into the electronic money business.

    April 15, 2014

  • E-Cigarettes target youth with festivals, lawmakers say

    WASHINGTON - The findings, in a survey released Monday by members of Congress, should prod U.S. regulators to curb the industry, the lawmakers said. While e-cigarettes currently are unregulated, the Food and Drug Administration is working on a plan that would extend its tobacco oversight to the products.

    April 15, 2014

House Ads
Seasonal Content