Burrage v. United States (12-7515)

argument 12-7515

Burrage v. United States

Supreme Court of the United States 59 min 5 speakers 8 chapters transcribed 6 days ago official recording ↗

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What is the statutory “results in” language and how does it define causation in Barrage v. United States?

John G. Roberts 0:01

We'll hear argument next in Case 12-7515, Barrage v. United States. Ms. Campbell?

Sarah Campbell 0:09

Mr. Chief Justice, and may it please the Court, Marcus Barrage 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. This lesser standard of contributing causation was neither articulated by Congress within the words of the statute, nor was it generally accepted at the time the statute was passed as an acceptable version of causation. Congress's selection of the word results instead should be interpreted to mean the traditional notions of causation, those of factual cause or but-for cause and proximate cause.

Sarah Campbell 0:57

Now, the parties don't disagree that results in means causation, that it's a causation analysis. And regardless of whether you look to the common law or the treatises or the legal commentators, causation triggers at the very minimum a but-for causation analysis. In this particular case, but for the use of the heroin, the victim would not have died. Now, the Solicitor General suggests a lesser causation standard, one that expands the notion of but-for causation. But if we instead look to the case law and this Court's precedent, we are not actually trying to expand but-for causation in most cases. We are trying to limit it because but-for causation can be extrapolated beyond what we are willing to give liability for.

Unknown 1:54

How would you respond to the hypothetical that the government poses on 24 of its brief, that is the three drops of poison, each defendant puts in one drop, one drop will not do it, three drops will, and none of them would be chargeable because it takes three drops?

Sarah Campbell 2:20

Well, I would disagree with the premise that they are not chargeable. Each individual person that put the drop of poison in that cup could be charged with attempted murder if they were trying to kill the person. But under standard causation analysis, you do not have but-for causation. Each individual drop of poison was not the but-for causation, and so you don't have causation. But you would

John G. Roberts 2:41

if you knew that there were two drops in and you added the third drop after the two drops, right?

Unknown 2:47

I'm sorry. I've

John G. Roberts 2:48

lost sight of this. Is this each drop is enough, or? It

Unknown 2:52

takes three drops.

Sarah Campbell 2:54

Oh, it takes three. In the government's hypothetical, each person individually puts in one drop, and you need three drops in order to kill the person. All right.

John G. Roberts 3:01

Well, there's but-for causation when you are the third person. Your drop caused the death, and the death would not have been caused without your drop.

Sarah Campbell 3:11

That would be correct, that there would be but-for causation. But

Anthony M. Kennedy 3:13

each one is a third person. I mean — Each one of them is the third person. It seems to me each one is a but-for cause. I don't know why you don't say there's but-for causation there. As I understood the evidence in this case, the experts testified they could not say that he would not have died but for the cocaine. That's quite different from this case where what is put to you is he — You could say he would not have died but for the drop that each one of them put in.

Sarah Campbell 3:50

Yes, you could say that. So why

Anthony M. Kennedy 3:52

isn't that but for causation?

Sarah Campbell 3:55

It's a form of but for causation that I think — I

Anthony M. Kennedy 3:58

don't care. A form of but for causation is but for

Sarah Campbell 4:01

causation. It can be. And I think that specific hypothetical, while it warrants special consideration by this Court whether or not in criminal context we're going to expand criminal liability to that, is not this case.

Anthony M. Kennedy 4:15

Well, I thought the hypothetical was a bit different. I thought it only takes two drops to kill him, and that's what creates the problem where you don't have but-for causation because you don't know whether you are the extraneous drop or whether you are the drop that actually killed him.

Sarah Campbell 4:30

Correct. If there is a hypothetical that changes it just slightly, you would not have but-for causation in that circumstance because each individual drop was not the but-for cause.