The death of actor
Phillip Seymour Hoffman from a 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 2 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.