SCOTUS Makes It Harder to Punish Drug Dealers for Their Customers’ Deaths

In 1986 Congress prescribed a 20-year
mandatory minimum sentence for drug distribution when “death or
serious bodily injury results from” consumption of the drug. Today
the Supreme Court unanimously
that the penalty applies only when the drug was a
necessary or independently sufficient factor in the injury or
death. The justices
the government’s argument that it’s enough for the
drug to be a constributing factor.

The case involved an Iowa drug dealer named Marcus Barrage, who
sold one gram of heroin to Joshua Banka, “a long-time drug user,”
on April 14, 2010. Banka injected the heroin during “an extended
drug binge” that included several other substances. He died the
next day, and his blood tested positive not only for morphine
(which is what heroin becomes after injection) but also for
oxycodone (Percocet), alprazolam (Xanax), and clonazepam
(Klonopin). In other words, Banka had consumed four different drugs
that cause respiratory depression, which was what killed him.

A forensic toxcicologist who testified at Barrage’s trial
could not say whether Banka would have lived had he not
taken the heroin”; instead he concluded that the heroin “was a
contributing factor.” A medical examiner likewise “described the
cause of death as ‘mixed drug intoxication,'” with each drug
“contributing.” The judge told the jury that was enough, and the
jury convicted 
Barrage of supplying a drug that
resulted in Banka’s death, thereby triggering the 20-year mandatory
minimum. The U.S. Court of Appeals for the 8th Circuit upheld the
conviction. Overturning that decision, the Supreme Court said the
government had to show that the heroin supplied by Barrage was a
“but-for cause of death,” meaning Banka would not have died had he
not injected it.

Any legal theory that holds someone else responsible for
the reckless behavior that led to Banka’s death seems dubious to
me, rather like holding a distiller responsible for the death of a
college student who dies after chugging a bottle of whiskey.
o it counts as an improvement that the Court has made
that sort of case harder to argue. How much harder? According to

from the Drug Abuse Warning Network, the vast majority of
“drug-related deaths” involving opiates or opioids also involve one
or more other drugs. 
Justice Antonin Scalia, who
wrote the majority opinion in
Burrage v. U.S.
, nevertheless argues that “but-for
causation is not nearly the insuperable barrier the Government
makes it out to be.” He cites a couple of cases where the
prosecution managed to prove that a given drug was a necessary
factor in a user’s death even though it was not the only substance
consumed. But given how common drug combinations are in so-called
overdose deaths, today’s ruling surely makes imposing the 20-year
mandatory minimum considerably more difficult—a development that
should be welcomed by critics of draconian drug

One can imagine situations in which a drug seller might
legitimately be held responsible for a customer’s death—if he
misrepresents the product’s potency, for example, or substitutes a
more dangerous drug for the one the buyer thinks he is getting. But
that sort of thing is much more likely to happen in the black
market created by prohibition than in a legal market. When was the
last time you bought a bottle of vodka that turned out to be
methanol instead of ethanol, or 160 proof instead of 80? The
penalty at issue in this case can be seen as a way for drug
warriors to deflect responsibility for the hazards they

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