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How Responsible Is the Drug Dealer for the Actions of the Drug User?

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The death of actor Phillip Seymour Hoffman from an apparent heroin overdose has triggered an interesting debate as to whether the individuals who sold Mr. Hoffman the drugs should be criminally liable for his death. Presently, however, New York State has no crime on its books that specifically addresses this issue. Should an overzealous district attorney seek to explore any potential crimes, the charges would most likely have to fit into some aspect of the homicide statutes. Given that this is clearly not an intentional act, the DA would have argue that the drug dealers acted recklessly or grossly negligent when they sold the drugs that were the source of the overdose. Needless to say, this is a very tall order for any prosecutor.

What is confusing the matter is the fact that the NYPD, no doubt as a result of the high profile nature of the case, arrested 4 individuals that they claim sold heroin to Mr. Hoffman. Putting aside the idea that the NYPD routinely come across OD cases and are nowhere near as interested in finding the drug sellers who actually supplied the drugs to the OD victim (we'll save that discussion for another Sullivan Brill blog post), one is left to believe that the DA is considering charging these alleged drug sellers with being responsible for Mr. Hoffman's death. Again, New York State Penal Law does not address this scenario in its drug statutes so the DA would need to look elsewhere.

Now, although New York does not specifically criminalize a drug seller's conduct if the drugs buyer/user ODs as a result of the drugs sold, United States Code -- the federal criminal statutes -- address this issue in its sentencing laws specifically. Under the penalty enhancement provision of the Controlled Substances Act in 21 U.S.C. §841(b)(1)(c), a defendant is subjected to a 20 year mandatory minimum sentence when he unlawfully distributes a Schedule I or II drug and death or serious bodily injury results from the use of that substance. In fact, the U.S. Supreme Court recently rendered a decision in U.S. v. Burrage (No. 12-7515) in which Justice Scalia discusses, in detail, what the phrase from the use of actually means.

In Burrage, Joshua Banka, a long time drug user died on April 14, 2010, following an extended drug binge. During that binge, the Mr. Banka used marijuana in the morning of the 14th followed by the crushing, cooking and injecting of oxycodone pills. Later in the day, he met with the defendant, Mr. Burrage and purchase one gram of heroin which he injected throughout the night and into the morning of the 15th. In the early morning hours of the 15th, Mr. Banka's girlfriend found him dead in the bathroom. A search of his Mr. Banka's home uncovered several syringes, over a half a gram of heroin, and various prescription drugs and tablets.

Mr. Burrage was charged with two counts of distributing heroin in violation of §841(a)(1) and the government provided notice that it would seek the "death results" enhancement under §841(b)(1)(c), exposing Mr. Burrage to a 20-year mandatory minimum sentence. At trial, the government successfully convinced a jury that because the drugs distributed by the defendant need only contribute to an aggregate force that lead to death. The jury agreed with the government and Mr. Burrage was sentenced in line with this mandatory minimum sentence.

Mr. Burrage exhausted his appellate rights -- unsuccessfully -- and ultimately filed a Writ of Certiorari with the U.S. Supreme Court, which was granted. The question the Supreme Court set out to answer whether a defendant can be convicted under the "death results" provision of §841 when the use of the controlled substance was a contributing cause of the death. Justice Scalia answered the question in the negative and reversed the conviction holding that a defendant cannot be held liable for the penalty enhancement (20 year mandatory minimum) unless such use is a but-for cause of the death or injury. In other words, unless a jury finds beyond a reasonable doubt that the drug user would have lived but for his heroin use, the sentencing enhancement is not applicable. In a nutshell, the drug distributed by the defendant must be an independently sufficient cause of the victim's death for a defendant to be liable under the sentencing enhancement provision.

Whether or not a seller should ever be responsible for the user's death is a interesting question. Surely if a seller knows of a "beat" or tainted product, the case could be a bit easier for a prosecutor. But in viewing both arguments, I tend to lean towards the underlying concept we are all personally responsible for our actions and that a user's decision to use, which might tragically lead to an overdose, should not in any way be attributed to, or worsen the conduct, of the drug seller.

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