The Legal Dubiousness of Federal Overdose Charges
The constitutionality of the federal distribution resulting in death statute is questionable but has yet to be challenged in any court.
There ought to be a law. This tongue-in-cheek expression is often invoked to express disapproval of an action. Obviously not everything that is bad should be illegal. In the case of drug overdoses, though, and distribution of an illegal drug that results in an overdose there already is a law. In the United States, distribution of a controlled substance resulting in death or serious bodily injury (DRD) is a federal crime that carries a statutory sentence of 20 years to life in prison. The severity of the sentence for this crime is demonstrative of the propensity of drug laws in the United States to follow public sentiment and the whims of crowd-pleasing politicians more than sound reasoning and coherent application of jurisprudence.
But-For Causation
The death of a person is a tragic event and when a healthy young person dies parents and loved ones are often left wondering what could have been done to prevent the death. If another person was involved it can be tempting to want the death to be treated as a murder and when there is a pattern of similar deaths, as with the current trend of fentanyl overdoses, it can be tempting for politicians to give in to public pressure to pass laws which accord with this overdose-as-murder interpretation of events. Not every unnatural death, however, is a murder or even a homicide. Wanting someone to blame is a normal reaction to tragedy but sometimes accidents and bad luck happen without anyone being seriously at fault.
In the feds, second degree murder is defined as the unlawful killing of a person with malice aforethought, that is done either deliberately and intentionally or recklessly with extreme disregard for human life.¹ The unlawful killing of a person with neither malice aforethought nor the intent to kill is not murder but manslaughter.² The lawful killing of a person, such as in self-defense, is not a crime at all, nor are any actions by a person that contribute only incidentally to someone’s death. Actually, there is an exception under federal law where a person can be held liable for causing death without having been the proximate cause of the death: if you distribute drugs to someone and they die from ingesting them then you can be charged federally which carries a second-degree murder sentence of 20 years to life in prison (or a first-degree murder sentence of mandatory life for a second offense).
A proximate cause is an action from which another follows as the direct result or a reasonably probable consequence. A weaker form of causation is but-for causation whereby an outcome would not have occurred had this action not been performed although the connection between the two events might not have been obvious or predictable beforehand. At its extremum, but-for causation is colloquially referred to as the butterfly effect. Whereas proximate causation is demonstrative of some degree of culpability due to intent or at least foreseeability and recklessness, hence its alternate name legal causation, but-for causation demonstrates nothing that ought to be considered juristically interesting. Nevertheless, a drug distributor (a more general term than drug seller which can be applied to one person who shares drugs with another or simply helps someone shoot up) may find himself facing multiple decades in prison due to having played a role of unspecified significance in an overdose death.
21 U.S.C. § 841 has been on the books since the 80s but it wasn’t until 2014 that the Supreme Court clarified the causation standard in Burrage v. United States.³ Marcus Burrage was sentenced to 20 years in prison for having sold heroin to Joshua Banka who subsequently died from the combined effects of multiple drugs. Burrage’s conviction was overturned because the government’s medical experts would not testify that the other drugs ingested by Banka might not have caused his death even absent Burrage’s heroin. If an expert witness had been willing to assert that Burrage’s heroin was a necessary factor in Banka’s death, even if it was merely the “straw that broke the camel’s back” the conviction would have been upheld.
20 years to life is an extremely harsh sentence for a crime that seemingly requires neither intent nor foreseeability, in other words for a strict liability charge with no mens rea requirement. The explanation given by the courts is that distribution of the controlled substance was intentional and mens rea need only apply to one element of the offense.⁴ The problem with this line of reasoning is that it is in direct contrast to the purpose of criminal law whereby punishment is meant to correlate with culpability. With the federal DRD charge, the circumstances which led to the death are irrelevant; anyone convicted will receive a murder sentence irrespective of the extent of their culpability.
Proponents of the statute might argue that death is always a foreseeable outcome of drug distribution. However, if death was truly foreseeable in the legal sense then the proximate causation standard would be sufficient in order for prosecutors to secure convictions in overdose cases. What distinguishes but-for causation from proximate causation is the inclusion of situations where the outcome was not foreseeable and the statute as it exists in its current state necessarily encompasses these latter situations.⁵ Specifically, DRD applies not just to opioids but to all Schedule I & II controlled substances, even those not often thought of as being inherently “deadly” such as LSD, DMT, and cocaine. Even if we restrict our attention to heroin, morphine, and fentanyl, though, it is still possible to use these substances safely (even Congress recognized this fact when opting to make fentanyl a Schedule II rather than Schedule I controlled substance) and the number of people that do so everyday is substantially larger than the number of people who overdose. The mere fact that death is a possible outcome of drug use (just as it is a possible outcome of many actions) does not make it a foreseeable outcome, and for many people a high likelihood of death resulting may contradict their experiences of having used drugs many times without having overdosed nor having known anyone who has overdosed; traditionally it is the role of courts to determine that an outcome was foreseeable in a given case, not the legislatures to decree that an outcome must necessarily be foreseeable in all cases.
In many cases, the defendant’s conduct would not even justify a manslaughter charge in a traditional homicide prosecution. Simply selling a dangerous product does not equate to culpability whenever use of that product causes someone’s death. In order for the seller to be at fault, his actions must have somehow increased the risk of death beyond the risk inherent in using the product correctly, given that many dangerous objects, such as cars and knives, are indispensable and it is not the purpose of law to make people liable for choosing to provide these items. Drug distribution is unique in that a person can sell a dangerous product to a person who is fully aware of what the product is and the risks associated with it and even take a maximum of precautions toward ensuring the buyer’s safety and still be held liable as a murderer when the buyer dies due solely to his own negligence (or to an accident not within either party’s control).
Power to Regulate Commerce Among the Several States
In U.S. federal law the utility of a law is not the end of the discussion about whether or not the law ought to exist. Unlike the individual states, the national legislature is only authorized to pass laws which fall under the powers of Congress explicitly enumerated in the Constitution.⁶ With drug charges, it is taken for granted that they fall under the Commerce Clause of the Constitution.⁷ Setting aside for now any contention with the notion that intrastate drug distribution should be considered interstate commerce, does Congress have the authority under the Commerce Clause to sanction drug distributors for having caused death? What if the defendant is accused of having murdered someone using a lethal dose of an illegal drug and so is only a drug distributor in a very technical sense?
This scenario is what happened in the case of Kristin Rossum.⁸ Rossum worked as a toxicologist for the Office of the Medical Examiner in San Diego County. After her husband was found dead in their apartment and the cause of death was determined to be fentanyl intoxication, Rossum, who had been confronted previously by her husband for having an affair with her supervisor and relapsing on methamphetamine, was charged with murder and given a life sentence after being found guilty at trial. Factually, Kristin Rossum was accused of having distributed fentanyl to her husband and consequently having caused his death, but she was charged with murder in California state court, not with distribution of a controlled substance resulting in death in federal court.
Whether distribution resulting in death should be considered a distribution charge or a homicide charge, the latter falling outside the scope of federal jurisdiction,⁹ is a question that remains to be answered by the courts. The argument for the former is that DRD is merely an enhancement of simple distribution and there is nothing controversial about courts imposing enhanced sentences when the circumstances of a case render it more serious than in typical cases. The rebuttal to this is that enhancements, such as the departure authorized by Section 5K2.1 of the United States Sentencing Guidelines when a crime results in death,¹⁰ do not change the statutory sentencing range, whereas DRD increases this range from 0–20 years to 20–life. When an ostensible enhancement increases the statutory sentencing range it must be treated as a distinct charge and have all of its elements found by a jury to be satisfied beyond a reasonable doubt.¹¹ In light of 5K2.1, which allows for a modest enhancement (or less modest in certain situations) of a distribution sentence with a subsequent death,¹² DRD is redundant if it really is an enhancement rather than a distinct charge.
It is also worth noting that the median guideline sentence for DRD is twenty times the median guideline sentence for distribution of under 4g of a mixture containing fentanyl, which is a typical amount for DRD cases. Not only does the death element account for the vast majority of the sentence, but also federal charges are rarely filed for simple distribution cases involving such minute quantities of drugs, thus when prosecution is initiated in DRD cases it is because of the death rather than the distribution. Because the death element is the focal point of DRD charges, with respect to both the initial motivation for prosecution and the eventual rationale for the imposed sentence, it is more reasonable to treat it as a homicide charge than as a distribution charge and thus it should be considered outside the scope of federal jurisdiction. The purpose of the federal courts is to decide cases involving interstate and international matters that are infeasible to address in state courts, not to give prosecutors multiple options of venue to decide between so as to obtain an easier conviction or a harsher sentence.
Purposes of Sentencing
What is the purpose of law? What is the outcome that sending people to prison is meant to achieve? In the United States, the 8th Amendment to the Constitution prohibits cruel and unusual punishment, which is punishment that makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering, or is grossly out of proportion to the severity of the crime.¹³ The goals of punishment are set forth in 18 U.S.C. § 3553(a). Succinctly, the purpose of a prison sentence is to deter potential criminals, to protect the public from convicted criminals, and to give the public a sense that justice has been done. The second point I feel does not need any elaboration and the third merits more discussion than I am willing to provide here so I am going to focus on the first point only.
Deterrence, a form of behavior modification, is what psychologists define to be the intended outcome of punishment (whereas colloquially and in law, punishment is often used as a synonym for retaliation). Deterrence is most effective when the outcome of punishment is predictable and consistent. If a law is not consistently enforced then the severity of a sentence will not deter criminals who believe that it is unlikely that they will actually have to serve that sentence. Distribution resulting in death is necessarily not enforced consistently because most instances of distribution do not result in death. As a means of deterrence, the federal DRD charge is fatally flawed because it punishes the outcome rather than the action; because of the use of but-for causation, a person may see a one year sentence transformed into a twenty year sentence not because of his own actions but because of the actions of someone else which he had no control over and thus were to him immutable.
The action that a drug distributor has control over is the knowing and intentional distribution of drugs. A law against distribution, then, if adequately enforced, should succeed in deterring this behavior. A drug distributor could potentially increase the risk of an overdose occurring if he misrepresents the drug that he is distributing which is why such behavior is subject to a 4-level enhancement per the United States Sentencing Guidelines. Furthermore, if death does occur following the use of some drugs then judges have substantial authority to impose a harsher than usual sentence if they deem the distributor to have exhibited some degree of culpability beyond that already treated in the simple distribution charge, and if his actions were so reckless as to constitute murder then prosecutors have the ability to file a murder charge as was done in the case of Kristin Rossum. But for legislators to mandate a drastically enhanced sentence (while prohibiting judges from exercising their sentencing authority to impose lesser sentences when appropriate) haphazardly based on an outcome that is largely outside of the control of defendants serves only to produce widely disparate sentences for identical actions while creating a deterrent effect that could be accomplished more effectively by treating the simple distribution charge directly, or by leaving sentencing decisions and culpability determination to the judiciary.
Conclusion
In summary, the federal distribution resulting in death charge is an ineffective, unfair, and legally dubious means of preventing overdose deaths. Prosecuting homicides is an issue for state courts, not federal courts. However, not all overdoses are homicides as the word is traditionally defined and not all homicides are murders. The untimely death of a person is tragic but it is the purpose of a legal system to respond to tragedies rationally and fairly and in doing so to prevent vindictive ad hoc retaliation by aggrieved victims and their loved ones. Because people who die of overdoses are frequently very young, their deaths are especially tragic and it is of paramount importance for judges, legislators, and vocal members of the public to not let emotions corrupt the law and its application. The people who get blamed for overdoses are also frequently young, and while twenty years spent in prison is not a complete loss of life, it is still tragic when so much time is needlessly taken away from a person who neither caused death, as the word “cause” is generally understood, nor desired it. The solution to tragedy is not more tragedy.
1. See 18 U.S.C. § 1111.
2. See 18 U.S.C. § 1112.
3. See Burrage v. United States, 571 U.S. 204, 134 S. Ct. 881, 187 L. Ed. 2d 715 (2014).
4. See United States v. Moya, 5 F.4th 1168 (10th cir. 2021).
5. See United States v. Jeffries, 958 F.3d 517, 522–23 (6th cir. 2020). “where serious bodily injury or death results from the distribution of certain drugs, Congress has elected to enhance a defendant’s sentence regardless of whether the defendant knew or should have known that death would result.
6. See the Tenth Amendment to the Constitution. “The power not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
7. Article I Section 8 Clause 3. “[The Congress shall have Power] to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” See Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d1 (2005).
8. See Rossum v. Patrick, 622 F.3d 1262 (9th cir. 2010).
9. See United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995). Congressional Commerce Clause authority is not a general police power of the sort held only by the States.
10. See U.S.S.G. § 5K2.1.
11. See Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2010).
12. See, for instance, United States v. Watley, 46 F.4th 707 (8th cir. 2022), in which a 7-level upward departure was given on top of a simple distribution charge for death resulting.
13. See Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).
