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Defending Death by Distribution Cases

Shea blogged about the new crimes of death by distribution and aggravated death by distribution in G.S. 14-18.4, here. These crimes hit the books this past December, and 2020 will likely see the first prosecutions under the law. The Health In Justice Action Lab at Northeastern University School of Law has put together a toolkit to assist defense attorneys with these types of cases, available here. In full disclosure, the toolkit is part of a larger advocacy effort against these types of laws. Whatever your feelings about the policy reflected in the law, it seems likely to present new challenges for court actors applying it. This post highlights issues identified in the toolkit that may arise in NC prosecutions.

Actual Causation. The statute requires both that the defendant’s act of unlawfully selling the drug causes the death of the user and that the sale be the proximate cause of the user’s death. [If a causation discussion raises traumatic memories of 1L torts class, rest assured you are not alone.] Actual causation requires proof that, without the act of the defendant, the victim would not have died. This is an objective test—but for the act of the defendant, would the victim still be alive? See Paul H. Robinson, Criminal Law Defenses § 88(d) (1984). This is often referred to as the “cause in fact” and represents “the minimum requirement for a finding of causation when a crime is defined in terms of conduct causing a particular result.” Burrage v. U.S., 571 U.S. 204 (2014).

Many cases will easily meet the but-for causation standard—Dan sells Vikki heroin; Vikki uses that heroin and dies of a heroin overdose. Dan’s act of selling the heroin actually caused the death, because without Dan’s act of selling the drug, Vikki would still be alive. But other cases may present more challenging circumstances, as discussed below.

The toolkit recommends engaging a defense expert to review the State’s determination of cause of death, to assist challenging expert testimony from the State, and to provide any defense evidence on the cause of death. It likewise recommends requesting a special jury instruction on the issue—something NC defenders will likely need to do until the pattern instruction for this offense is released (which I’m told will be soon).

Proximate Cause. Proximate cause typically looks at whether the harm caused is closely related enough to the defendant’s act that it makes sense to impose liability. Traditionally, this is formulated as a foreseeability test—was the harm that resulted too far removed from the defendant’s act to fairly hold the defendant responsible? To borrow an example from Robinson: If Dan sells Vikki drugs, and a piano falls on her head as she walks home from the transaction, Dan’s act of selling drugs is not the proximate cause of death. It was not foreseeable that by selling Vikki drugs a piano was likely to kill her, and thus Dan cannot be criminally liable for the death (even if Vikki would not have been there but-for the sale).

The defendant’s act needs not be the sole proximate cause:

There may be more than one proximate cause of death, and criminal responsibility attaches so long as one of the proximate causes is attributable to a criminal act of the defendant. The question of whether defendant’s conduct was the proximate cause is a question for the jury.” State v. Noble, 226 N.C. App. 531 (2013) (citations omitted).

Intervening Causes. Under traditional tort principles, an unforeseeable intervening act of negligence (or crime) can break the link to the defendant, such that the defendant’s act is no longer a proximate cause. See N.C.P.I—Civil 102.65. Our courts have recognized this principle in the context of criminal culpable negligence:

In order for the negligence of another to insulate the defendant from criminal liability, that [other person’s] negligence must be such as to break the causal chain of the defendant’s negligence; otherwise defendant’s culpable negligence remains a proximate cause[.] State v. Hollingsworth, 77 N.C. App. 36 (1985), abrogated on other grounds by State v. Romano, 247 N.C. App. 212 (2016).

What exactly will qualify as a sufficient causal break in death by distribution cases? In State v. Parlee, 209 N.C. App. 144 (2011), the buyer’s act of sharing oxymorphone from the defendant with another person (the victim) did not break the causal chain, and the defendant’s act of selling pills to the buyer was sufficient evidence of a proximate cause of death. So, the purchaser sharing the drugs with another is not enough to break the chain from the defendant’s sale, but questions remain. For one, how far up the chain of sellers does it apply? If Dan sells to Vikki who sells to Jane who sells to Jack who sells to Vanessa, who dies, is Dan’s sale to Vikki still the cause of Vanessa’s death? Are all of the sales a proximate cause of the ultimate death, or is Dan too far removed at some point? Does it matter whether Dan sold Vikki an amount for personal use, versus an amount to distribute? Does it matter what happened down the chain from Dan? What if Vikki adulterated the drugs after receiving them from Dan before she passed them on? The devil may be in the details, as far as litigating intervening causes.

Another issue is whether independent, unforeseeable acts of the buyer can break the chain of causation. What if the buyer intentionally misuses the drug, or uses it in a grossly negligent manner? Suppose the defendant sells drugs of normal potency to a buyer, advising the buyer of a normal dose, and the buyer knowingly takes a triple dose, or more? What if, unbeknownst to the defendant, the buyer intends to use the drugs to commit suicide (or murder, for that matter)? Would this sufficiently attenuate the defendant’s acts from the resulting death? We will have to wait and see how our courts interpret the causation requirements in these trickier situations.

Multiple Drug Cases. The appellate division has acknowledged the difficulty of mixed substance cases. In In Re: Z.A.K., 189 N.C. App. 354 (2008), the juvenile sold the victim Ecstasy. The victim subsequently ingested that drug along with cocaine and methamphetamine and died. The juvenile argued that he could not be held responsible for the death when he provided one drug to the deceased, but the cause of death was determined to be a mixed toxicity drug overdose, including two substances he did not provide to the victim. According to the court: “This issue is complex, and we need not decide it here,” finding instead that the juvenile was culpably negligent in failing to provide competent assistance to the victim under the facts. Id. at 358. It will likely turn on the specifics of the cause of death. If the drug sold by the defendant is a contributing factor to the victim’s death, it seems likely to qualify as a proximate cause under the principles outlined above. Where the evidence is capable of different interpretations—for instance, the state’s expert opines that the drug sold contributed to the cause of death, but the defense expert opines it did not—the matter is likely up to the finder of fact.

Preexisting conditions. Tort law recognizes that a preexisting condition of a plaintiff that makes him or her particularly vulnerable to injury may render the harm by the defendant unforeseeable (and therefore break the causal link). See N.C.P.I.—Civil 102.20. North Carolina squarely rejects this approach in the criminal assault context:

It is well established that a preexisting physical condition, but for which the allegedly criminal conduct would not have been fatal, does not excuse criminal responsibility. State v. Luther, 285 N.C. 570, 206 S.E.2d 238 (1974) (heart attack brought on by assault); see also State v. Atkinson, 298 N.C. 673, 259 S.E.2d 858 (1979) (victim a “walking bombshell”); State v. Alford Jones, 290 N.C. 292, 225 S.E.2d 549 (1976) (intervening negligence in treatment no excuse). State v. Evans, 74 N.C. App. 31 (1985).

These cases suggest that in the assault and murder contexts the causal link to the defendant is not easily broken by preexisting conditions or the negligence of a third party. Assuming this approach applies in the death by distribution context, I expect there will still be arguments about whether the drug caused or contributed to the death where the victim had a serious and potentially fatal preexisting condition as a matter of actual (if not proximate) cause. For instance, if Vikki dies of a stroke from preexisting blood clots while using Dan’s drugs, and Dan’s expert at trial testifies that Vikki would have died then even without the heroin, a fact-finder could conclude Dan’s sale did not cause the death.

Joint Users. By its plain language, the statute applies when a sale occurs. This requires a commercial transaction and would seemingly not apply to situations where users jointly obtain drugs or share drugs with each other for free. Other jurisdictions have recognized this limitation in similar contexts. Where “two individuals simultaneously and jointly acquire possession of a drug for their own use, intending only to share it together, their only crime is simple joint possession, without any intent to distribute the drug further.” U.S. v. Swiderski, 548 F.2d 445 (2nd Cir. 1975). Where two or more people obtain drugs together, each person possesses the substance jointly (whether actually or constructively). Logically, no “sale” occurs when people already in joint possession of a substance use it together. New Jersey’s Supreme Court adopted this approach: “It hardly requires stating that the ‘transfer’ of a controlled substance cannot occur . . . if the intended recipient already possesses that substance.” State v. Morrison, 902 A.2d 860 (N.J. 2006). The Swiderski and Morrison courts identified the following factors to determine joint possession:

[W]hether the relationship of the parties is commercial or personal, the statements and conduct of the parties, the degree of control exercised by one over the other, whether the parties traveled and purchased the drugs together, the quantity of drugs involved, and whether one party had sole possession of the controlled dangerous substance for any significant length of time. Morrison at 870.

Other potential issues. The toolkit is a fascinating deep dive into issues surrounding death by distribution laws, and I encourage court actors working with opiate cases to consider reading it. In addition to the issues identified above, there are entries on 4th Amendment issues that commonly arise in these cases and potential 8th Amendment claims. It also briefly touches on the issue of racial discrimination in these cases, observing that preliminary data shows death by distribution prosecutions are more likely to be brought when the decedent is white, and that black defendants typically receive longer sentences when convicted. If race discrimination is potentially an issue in your NC case, consider consulting Raising Issue of Race in North Carolina Criminal Cases by Emily Coward and Alyson Grine. The chapter on selective prosecution claims (here) provides a list of questions that help determine if a viable claim might be available in a given case, and gives defenders advice on how to raise and prove such claims.

If you’ve been involved in one of these cases or have any thoughts on the new law, leave a comment below.

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