Pubdate: Wed, 13 Nov 2013
Source: New York Times (NY)
Copyright: 2013 The New York Times Company
Contact: http://www.nytimes.com/ref/membercenter/help/lettertoeditor.html
Website: http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Adam Liptak

JUSTICES WEIGH ROLE DRUG PLAYED IN A FATAL COCKTAIL

WASHINGTON - Joshua Banka's prodigious appetite for drugs killed him. 
On Tuesday, the Supreme Court considered whether to hold a drug 
dealer who had sold heroin to Mr. Banka responsible for his death.

In 2010, just before Mr. Banka was scheduled to enter a court-ordered 
drug rehabilitation program, he decided to go on one last bender. He 
smoked marijuana; crushed, cooked and injected OxyContin; took a 
variety of prescription drugs; and topped them off with heroin he had 
bought from Marcus A. Burrage.

Mr. Burrage was convicted not only of selling the heroin but also of 
being responsible for the death. That second charge carried a 
mandatory minimum sentence of 20 years in prison.

At his trial, medical experts said the heroin had been a contributing 
factor in Mr. Banka's death. But they could not say, given the other 
drugs he had ingested, that he would not have died anyway.

On Tuesday, Justice Elena Kagan distilled the testimony this way: 
"Using heroin made it more likely that he would die, but we can't say 
that using heroin killed him."

The question for the justices was the meaning of a federal law that 
requires a mandatory sentence "if death or serious bodily injury 
results from" drugs sold by a defendant. Did "results from" mean the 
drugs contributed to the death? Or did it require more?

Angela L. Campbell, a lawyer for Mr. Burrage, said the words of the 
law required a straight line from her client's drugs to Mr. Banka's death.

"Marcus Burrage is serving a 20-year mandatory minimum sentence for 
selling heroin that, according to the jury instruction that was given 
to the jury at the time of the trial, was not the primary cause of 
the death, but, rather, merely played a part in the death," she said.

That was not enough, Ms. Campbell said, and several justices seemed 
prepared to agree.

"One little grain of heroin that you discover is in the body, and 
that person's going away for, whatever it is, 20 years?" Chief 
Justice John G. Roberts Jr. asked a lawyer for the federal government.

The lawyer, Benjamin J. Horwich, said there was an exception for 
quantities of drugs that are "too insignificant or not important 
enough or too insubstantial." But as a general matter, he said, 
prosecutors need only show that illicit drugs contributed to the 
victim's death.

Requiring prosecutors to prove more, he said, would have pernicious 
consequences. "A 'but for' test," he said, could mean that "nothing 
and nobody was the cause of the victim's death."

But Justice Antonin Scalia said the words of the statute might mean 
just that. "It says it has to result in the death," he said of the 
law. "And I take that to mean at least, at least, but-for causality."

The chief justice appeared to agree. "This statute does not say if 
you die from taking drugs, then the person who gave you drugs, who 
gave you any kind of drugs, is responsible," he said. "It says the 
death has to result from the heroin."

Justice Stephen G. Breyer urged caution, saying the court should not 
issue a broad decision in light of the complexity of the case, 
Burrage v. United States, No. 12-7515. "It's so complicated to talk 
about," he said, "that you are going to mix everybody up once we 
start to write on this."

"Why not just say 'substantial' " - meaning the mandatory sentence 
would be proper if the defendant's drugs played a substantial role in 
the death - "and let the lower courts figure it out, so we don't 
confuse the entire bar and the entire Congress and everything?" he asked.

Justice Scalia responded: "Because of that imprecision, some poor 
devils will have to go to jail for a longer period than otherwise. 
You know, tough luck."

In other action at the court on Tuesday, the justices declined to 
hear an appeal from a decision striking down an Oklahoma abortion law 
that required women to have an ultrasound image placed in front of 
them and to listen to a detailed description of the fetus before the procedure.

The ultrasound typically required a vaginal probe and had to be 
performed even if women objected. Some doctors said the requirement 
that they recite the description was a violation of medical ethics.

The Oklahoma Supreme Court struck down the law in December, saying it 
conflicted with a 1992 United States Supreme Court decision 
protecting the constitutional right to abortion. In their brief to 
the justices, state officials said the law was consistent with the 
decision, which upheld part of a Pennsylvania law calling for 
informed consent from women seeking abortions.

In urging the court not to hear the case, Pruitt v. Nova Health 
Systems, No. 12-1170, operators of Oklahoma abortion clinics said the 
law was "rare if not unique."

"This is no garden-variety 'informed consent' law," their brief said. 
"It does not merely make information available to a woman who wishes 
to terminate her pregnancy; it compels women to undergo an invasive 
medical examination and listen to a state-scripted narrative even if 
they object."

As is their custom, the justices gave no reasons for their decision 
not to hear the case. Last week, the court dismissed an appeal from a 
decision striking down another Oklahoma law, an effort to limit 
medicinal abortions.
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MAP posted-by: Jay Bergstrom