The public eye has recently focused on the draconian sentences being handed out in federal drug cases, drawing wide-ranging criticism from Human Rights Watch in "An Offer You Can't Refuse," and from the US Attorney General himself, who stated [PDF] in his "Memorandum to the United States Attorneys and Assistant Attorney General for the Criminal Division: Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases," that "[w]e must ensure that our most severe mandatory minimum penalties are reserved for serious, high-level, or violent drug traffickers." Even district courts have publicly denounced the mandatory minimum sentencesJudge Gleeson in New York is a prime exampleand Congress has established the Over-Criminalization Task Force to study the issue.
Meanwhile, federal circuit courts have been whittling away age-old protections for drug defendants, making it easier for prosecutors to ensnare a drug defendant with the most severe mandatory minimum sentences available under federal law when the end user dies. The courts have lessened the quantum of proof necessary for these twenty year or life mandatory minimum sentences by eliminating any mens rea requirements for the conduct that triggers the enhanced offense, and by lowering the causation standard below what is even allowed in civil cases.
We challenged these two separate, but related, erosions of the level of necessary proof in Burrage v. US: (1) the US Court of Appeals for the Eighth Circuit creation of a "contributing cause" standard employed only in section 841 cases, and (2) the circuit-wide elimination of any form of mens rea from the "resulting in death" element of the crime by refusing to give an instruction on foreseeability or reasonableness. Both the lesser causation standard and the elimination of mens rea independently dilute the protections needed for a just criminal system and together create seemingly unending criminal liability for what is essentially a homicide conviction.
Foreseeability, the most common element of proximate cause, is often depicted as either an objective or subjective reasonableness standard and is employed in both reckless and negligent forms of culpability. It is the lowest form of mens reafalling behind the more culpable intentional conduct. The US Supreme Court has been clear that mens rea is the default rule of criminal jurisprudence. Even when a statute does not include express terms of mens rea, the Supreme Court instructs lower courts to look for some indication of congressional intent before mens rea may be dispensed as an element of a crime. This is because society desires to punish increased mental culpability with increased penaltiesthe concept of marginal deterrence. Eliminating all mens rea as the rationale for such a drastic increase in penaltiesno minimum to mandatory twenty years or life under section 841(b)(1)(C)is a seismic shift in how to approach criminal liability. Such a system penalizes one defendant with life without parole for identical conduct which is no more morally culpable than another defendant's conduct who is serving less than a year in prison.
Similarly, the "contributing cause" standard adopted by the Eighth Circuit drastically broadens the application of the "resulting in death" penalty to those individuals whose conduct merely "played a part" in a death, rather than actually caused a death. Its use in the criminal context is both novel, and seemingly limitless, should the Supreme Court determine it is an acceptable form of causation in a criminal case absent express congressional language triggering its application.
The combination of both the foreseeability and causation issues generates hypotheticals which should trigger flashbacks to law school exams for even the most seasoned lawyer. The esoteric nature of both factual and proximate cause harkens us back to the days of studying hornbooks and their source for extrapolations law school professors thrive upon. Yet, unlike law school exams, the real-life scenarios section 841 has generated within the criminal legal community do not end in the difference between an A and a C, they end in the difference between dying in prison or serving a modest term of months.
Marcus Burrage was sentenced to the twenty year mandatory minimum sentence under section 841(b)(1)(C) for selling one gram of heroin to an individual who died several hours later after using a smorgasbord of different drugs, none of which the experts would say was the sole cause of the user's death. His penalty exceeded the maximum sentence for a federal defendant convicted of either involuntary manslaughter (eight years maximum) or voluntary manslaughter (fifteen years maximum). The district court, pursuant to Eighth Circuit precedent, eliminated all forms of mens rea from the jury instructions by refusing to instruct on foreseeability. The lack of the foreseeability element created a form of strict liability crime and the use of the contributing cause standard eliminated any chance Burrage had of avoiding the harsh penalty. Without the "resulting in death" element, Burrage's suggested sentence under the guidelines would have been a fraction of the 240 months the court was required to give him.
The US Court of Appeals for the Seventh Circuit had expressed reservations about this type of "strict liability" application of the "death resulting" element in US v. Hatfield. In the Seventh Circuit's opinion, Judge Richard Posner stated that application of the strict liability interpretation "could lead to some strange results." For instance, as Posner hypothesized, if a defendant sells an illegal drug to a person who ingests it in a bathroom, and while in the bathroom, the ceiling collapses and kills him, strict liability could support a convictionhad the person not ingested the drug, he would not have been in the bathroom and would not have been crushed under the falling ceiling. Another "strange result" identified by Posner could occur when, unbeknownst to the seller of an illegal drug, the buyer was intending to commit suicide by taking an overdose of drugs, some of which were bought from the seller, none of which were abnormally strong and the seller had informed the buyer of the strength of the drugs so that there was no reasonable likelihood of an accidental overdose.
These hypotheticals, upon further research, proved to be not just hypothetical. Posner's suicide hypothetical eerily matches the facts in US v. Patterson [PDF], where the US Court of Appeals for the Fourth Circuit refused an "intervening and superseding cause" defense in the case even though the defendant had proffered evidence that the victim may have committed suicide. Meanwhile, Posner's seemingly absurd fact pattern of the drug user dying in the bathroom when the ceiling collapses pales in comparison to the facts in the actual case of US v. Roman out of the Central District of California where the defendant was charged under section 841 when the user of the mushrooms he had sold ran naked onto a freeway and was hit by a motorist.
Unfortunately for these defendants, and for hundreds like them, they have been convicted for contributing to an accidental death that may not have been foreseeable. Also, unfortunately for these defendants, their facts are not law school hypotheticals, but real life demonstrations of the impact ever-expanding criminal standards have on societyto a point now where we have the Supreme Court debating whether a person can spend their whole life in prison for selling an amount of drugs that weighs less than a grape.
Ms. Campbell is the co-founder of Dickey & Campbell Law Firm P.L.C. She graduated from Yale University in 1999 with a double major in anthropology and political science. Subsequently, she graduated magna cum laude from Boston College Law School in 2002.
Suggested citation: Angela Campbell, Mandatory Minimums, Causation and Strict Liability in Drug Crimes, JURIST - Hotline, Jan. 9, 2014, http://jurist.org/hotline/2014/01/angela-campbell-mandatory-minimums.php.
This article was prepared for publication by Jason Kellam, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org