Drug Induced Homicide Defense Toolkit
In Ohio, a state with “but-for” statutory language, this could also be a viable claim. While no ineffective assistance of counsel claims regarding but-for causation have yet been raised under the Ohio statute, the state has adopted the Strickland standard for ineffective assistance of counsel claims.72 2. Proximate causation and foreseeability In addition to but-for causation, traditional criminal causation principles also require proof of proximate causation. Proximate cause, also called legal cause, is a way of identifying a but-for cause [t]hat we’re particularly interested in, often because we want to eliminate it. We want to eliminate arson, but we don’t want to eliminate oxygen, so we call arson the cause of a fire set for an improper purpose rather than calling the presence of oxygen in the atmosphere the cause, though it is a but-for cause just as the arsonist’s setting the fire is.73 Proximate cause requires proof that death was a reasonably foreseeable consequence of the defendant’s conduct. Of course, as already stated, many statutes use a strict liability approach.74 Most circuits have concluded that the federal DDRD statute does not require
72
State v. Mack, 2004-Ohio-1526, ¶ 4, 101 Ohio St. 3d 397, 397.
73
United States v. Hatfield, 591 F.3d 945, 948 (7th Cir. 2010).
74
See Health in Justice Action Lab & Legal Science, Drug Induced Homicide Laws. See also Section VI.F (discussing the use of a strict liability approach). Notably in its recent decision in Commonwealth v. Carrillo, possibly taking into account an argument raised by the Health in Justice Action Lab and our co-author Lisa Newman-Polk in our amicus curiae brief, the Massachusetts Supreme Judicial
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