Those who recall first-year Criminal Law will likely remember that there are two kinds of causation generally required for criminality: actual cause (or “but-for” cause); and proximate cause. Where multiple forces act upon a victim, actual causation narrows the field of possible causes, and proximate cause helps us to determine, chiefly as a matter of public policy, which actor should be subjected to criminal liability. But where a statutory scheme provides for criminal responsibility where a death “results from” a particular causal factor, does that statute require proof that the cause is a proximate one, or only a “but-for” one? In other words, does “results from” mean “proximately causes?”
In United States v. Burkholder, decided on Friday, the United States Court of Appeals for the Tenth Circuit says that no proximate causation analysis is necessary under 21 U.S.C. 841(b)(1)(E)(i). That statute imposes a statutory maximum of 15 years in prison “if death or bodily injury results from” the use of a Schedule III controlled substance. Absent the death-resulting-from enhancement, the punishment is up to 10 years.
Kyle Dollar spent an evening drinking with friends at a home in Wyoming. He and his group then went to the Astro Lounge. After leaving the group for a while, he returned and said he was going home. Later he went back to the home where he and his friends had been drinking. He was found dead there the next morning. When police reviewed his text messages, they found exchanges with Burkholder. They searched Burkholder’s residence and found Suboxone tablets and wrappers.
Suboxone is an opioid that treats heroin addiction. Its active ingredient is buprenorphine, a Schedule III controlled substance. Burkholder was a recovering heroin addict and had given the victim a Suboxone tablet in the restroom of the Astro Lounge. As in a typical causation case, we had a battle of experts: the Government’s experts testified that Dollar died from the combination of buprenorphine and alcohol. Other experts, however, testified that it was unlikely that the buprenorphine caused the death – one expert said that Dollar likely overdosed on a synthetic drug not captured by initial drug-screening procedures; another said the buprenorphine was taken at a dosage too low to result in death.
Burkholder argued that under the enhancement statute, the death had to be reasonably foreseeable, which is the linchpin of proximate causation analysis. Burkholder, in other words, wants to say that Dollar’s death was not reasonably foreseeable and therefore Burkholder could not have been the proximate cause of the death (and, so, the additional 5 year prison term could not apply here). But the Tenth Circuit said the statute did not require this analysis. The court said that the statutory text – “results from” – should be read to require only “but-for” causation, not proximate causation. Congress did not use the language of proximate cause in writing the statute, even though it has done so in other statutes and was presumably aware of the case law drawing the relevant distinction. And its use of the passive voice counsels in favor of “but-for” causation.
Ah, you say, but the common law (as described above) generally required both types of causation. So shouldn’t the statute be read in light of the common law? No, the court says, because the statute speaks in terms that would unambiguously abrogate the common law here.
The conclusion here is that a jury could have reasonably found that, but for Burkholder giving Dollar the Suboxone tablet, Dollar would not have died. The statute requires nothing more for a jury instruction as to causation.
Judge Briscoe dissented, arguing that there is insufficient certainty that Congress meant to make this essentially a strict liability enhancement. So Burkholder deserves a new trial.
The majority’s analysis with respect to the common law seems a bit circular. The dissent’s reference to “strict liability,” though, seems misplaced – strict liability is a mens rea concept, not a causation concept. I think I understand the dissent’s point, but I would not use “strict liability” as the descriptor. But regardless of who has the better argument here, it’s a fascinating statutory interpretation issue.