Burrage v. United States and Punishment of Drug Overdose in the United States

It’s no secret how the United States government feels about drug crimes.  With one of the largest drug consuming populations in the world waging one of the longest wars on drugs, the United States government punishes drug dealers and users harshly for their respective contributions to the illicit business.  In order to deter the dealers and users from continuing to transact deals, the federal government enacted 21 U.S.C.A. § 841(b)(1)(C) in 2010 to increase sentencing minimums for dealers whose drugs caused a user to overdose.

The problem with such a law is that often an individual who overdoses is not typically under the influence of just one substance.  How then does a court determine whether the dealer’s drugs were the sole cause of the user’s death?  This question was recently answered in Burrage v. United States.  In this case, an individual (Banka) purchased heroin after already being under the influence of other substances from the appellant drug dealer (Burrage).  Banka later overdosed as a result of the amount of drugs in his system.  The question before the Supreme Court asked whether Burrage’s heroin sale was the but-for cause of Banka’s overdose.  The Supreme Court disagreed with the federal government and determined that Burrage was not liable for Banka’s death because he was not the “actual” cause of the overdose.  Coming to this decision, the Supreme Court created a but-for causation test stating that although the heroin was a factor in Banka’s death, the other drugs Banka took were also damaging, to the point that they were sufficient to cause his death.  By creating this test, the court requires the government to present a satisfactory amount of evidence to convince a reasonable person that but for the ingestion of a specific drug with a known potential of abuse or harm, the individual would not have overdosed.[1]  

An example of the Burrage test applies to a pending Texas case where a teenager from Frisco, Texas overdosed on a synthetic drug known as 25l-NBOMe after believing it was LSD. While the teen was not aware that the drug he took was 25l-NBOMe, the prosecution will emphasize that the dealer knew how dangerous the substance was and the dealer demonstrated a reckless disregard to inform the teenager of its danger.  Applying the Burrage test, the prosecution has a possibility of convincing a reasonable person, through the evidence, that the dealer was the major cause of the teenager’s death.

While the Burrage decision dealt a blow to the war on drugs, the test created a new standard by which current and future cases must abide by.  States, such as Ohio have recently introduced legislation to press murder charges against a drug dealer when the sale of drugs later results in an overdose of the customer.  The Ohio House of Representatives proposed this law with the intent to deter dealers from selling drugs that lead to overdoses by enhancing the severity of the penalty a defendant might face.  While critics of the bill are hesitant regarding its effect on other legal drugs such as alcohol, the reality of the matter is that substances such as heroin are not regulated whereas the government regulates alcohol to ensure consumer safety.

Ohio is not the only state that believes murder charges are a sufficient punishment, as Louisiana has recently pressed second-degree murder charges against the dealer of a female who had a heroin overdose.  However, not all cases result in murder charges as, the prosecution can also press lesser manslaughter charges against the dealer.  Recent examples  include a Lancaster County female who overdosed on methamphetamine after purchasing the substance from cooperating drug dealers and a Seaside Heights, New Jersey woman who overdosed on heroin after she purchased the substance from a drug dealer.

According to Model Penal Code § 210.2(1)(b),[2] what makes a second-degree murder charge different from an involuntary manslaughter charge is the level of indifference the alleged murderer displays towards his or her victims.  Some of the factors that lead to a murder charge might include the amount of drugs the individual was selling, his criminal record, and physical evidence of his product.  While a small scale dealer could possibly face similar homicide charges resulting out of an individual’s overdose as a large scale dealer, a small scale dealer faces lesser charges in terms of distribution.[3]

While the Burrage test is only the beginning of sentencing standards for drug overdoses, the prosecution and criminal defense will have to create ways to demonstrate the dealer’s innocence or guilt.  The defense will push to demonstrate that the user assumed all risks when consuming the drug and the dealer was only a method of obtaining these drugs, similar to a convenience store or pharmacy.  After all, a dealer is often not the manufacturer but the individual seller. The prosecution will argue that but-for the drug dealer selling these harmful & “poisonous” substances to the user, the individual who overdosed would not have died. Whatever the decision a court comes up with, we are ultimately left with consequences on all sides: the individual who overdoses, the imprisoned dealer who faces a harsher sentence for something he did not intend, the families who endure the heartbreak of losing a family member to death or to a prison sentence, and the community overall.

Brian Zack
Staffer, Criminal Law Practitioner

Photo by Sam Metsfan via Wikimedia Commons.

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[1] 21 U.S.C.A. § 812(b)(1)-(5) (2012) (Explaining the difference between schedule I-IV drugs on the basis of potential of abuse, medical treatment, and safety associated with consuming the drug).

[2] Model Penal Code § 210.2 note on murder (2001) (“It is committed recklessly under circumstances manifesting extreme indifference to the value of human life.”).

[3] 21 U.S.C.A. § 841(b)(1)(A)-(C) (2010) (Distinguishing punishment of small scale dealers and large distributors, while identifying that an individual can be imprisoned no less than “20 years or more than life for” the death of an individual who overdoses).