Supreme Court Action: Statutory “But For” Language That Triggers Sentence Enhancement

The third opinion the Supreme Court issued yesterday is Burrage v. United States (12-7515).  Burrage sold heroin to Banka who used it with other drugs during a drug binge.  Banka died with multiple controlled substances in his system.  The Government charged Burrage with distributing heroin including distribution where “death . . . resulted from the use of th[at] substance.”  Conviction where the drug sold caused the death triggered a provision in the Controlled Substances Act mandating a 20-year mandatory minimum sentence.

Medical experts testified at trial that Banka might have died in any event whether or not he had used the heroin he bought from Burrage.  No expert that testified was willing to state that the heroin Banka used was the “but for” cause of his death.  At best it may have been a contributing factor.  Burrage moved for a motion of acquittal on the sentencing enhancement which the trial court denied.  The court ruled that the Government need only prove that the heroin was a contributing factor to Banka’s death and issued jury instructions to that effect.  Burrage was convicted and sentenced to the mandatory minumun of20 years on that count.  The Eighth Circuit Court of Appeals affirmed.

The Supreme Court reversed.  The Court stated that the “death results” enhancement was an element of the crime and had to be proved beyond a reasonable doubt.  The Controlled Substances Act does not define “results from.”  As such, the words take on their ordinary meaning.  The Court compared the language to other statutory enactments and concluded that it means “but for” as Burrage argues.  The Court rejected the Government’s contention that contribution was enough under the statute.  Contribution is too vague a standard for criminal law.

Justice Scalia delivered the opinion of the Court and was joined by Chief Justice Roberts and Justices Kennedy, Thomas, Breyer, and Kagan.  Justice Alito joined in the opinion with the exception of Part III-B.  Justice Ginsberg filed a concurring opinion in the judgment of the Court and was joined by Justice Sotomayor.  Justice Ginsburg does not read “because of” in the context of antidiscrimination laws to mean “solely because of.” — Mark

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