The Cautionary Instruction: Supreme Court strikes overdose law in midst of an epidemic

Friday, 31 January 2014 06:00 AM Written by  Matt Mangino

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As greater Pittsburgh deals with the spread of a deadly batch of heroin that has killed as many as 22 people in four counties since Jan. 19, the U.S. Supreme Court struck down a weapon in the fight against dealers who furnish drugs that kill their users.

In a 9-0 decision, the justices ruled that a provision of the federal sentence guidelines that provide for a mandatory minimum 20-year prison sentence every time a drug overdose results in death is unconstitutional.

As a result, federal prosecutors must prove that the heroin, cocaine or other illegal drug actually caused the death. Previously prosecutors maintained that drug dealers may be sentenced to at least 20 years in prison whenever an illegal drug was a “contributing cause” in a death.

In Pennsylvania if a “person dies as a result of using the substance” the person distributing the drug can be convicted of a first degree felony. A five year mandatory minimum was removed by the legislature in 2011.

We decline to adopt the government’s permissive interpretation,” Justice Antonin Scalia said in this week’s decision that partly reversed the sentence of a heroin dealer from Ames, Iowa.

Marcus Burrage was convicted of distribution of heroin causing death under 21 USC § 841. Attorneys for Burrage argued that the law required the prosecution to prove that heroin alone caused death, and was not just a contributing cause of death.

"The language Congress enacted requires death to 'result from' use of the unlawfully distributed drug, not from a combination of factors to which drug use merely contributed," according to the opinion written by Justice Antonin Scalia.

Alabama, Arkansas, Maine, North Dakota and Texas all have either adopted laws that impose mandatory minimums when the underlying crime "contributes to" death or serious bodily injury. Congress never took that step.

Although the 20-year mandatory minimum was dismissed against Burrage his separate conviction and 20-year sentence for another heroin sale will keep him behind bars for the full 20 years.

It appears a decision in a local case to offer a plea to something less than the 20-year mandatory minimum was the right move. Federal prosecutors in West Virginia offered a plea to a man accused of supplying heroin to an addict who died of an overdose, the first time that federal law has been applied in West Virginia’s federal northern district.

Justin Withers of Wellsburg, W.Va., had been facing a mandatory 20-year sentence if convicted of supplying heroin to a man who died of an overdose. He pleaded guilty last week and will receive more than 12 years in prison if the judge accepts the plea.

Withers' lawyer, Robert McCoid, and U.S. attorney William Ihlenfeld said the plea was triggered in part by the Burrage’s case pending before the U.S. Supreme Court.

(Image: Agents from the Pennsylvania Attorney General's Bureau of Narcotics Investigation along with local law enforcement yesterday seized more than 2,000 bags of heroin, and more than $8,500 in cash in a raid in Clairton. Some bags bore the 'Sky High' stamp that may be related to other recent heroin stamps containing a mixture of heroin and the narcotic fentanyl that are believed to be response for a rash of overdose-related deaths in Western Pennsylvania. Office of the Pennsylvania Attorney General)

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at and follow Matt on Twitter @MatthewTMangino. His book The Executioner's Toll, 2010 is due out this summer.

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