2. Proximate causation and foreseeability

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 JusticeAction 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 JusticeAction Lab and our co-author Lisa Newman-Polk in our amicus curiae brief, the Massachusetts Supreme Judicial

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Disclaimer: All content is provided for informational purposes only and does not constitute legal advice

Drug Induced Homicide Defense Toolkit

proof of proximate cause.75 Because the United States Supreme Court has not addressed

the issue,76 however, litigants should continue to request a proximate causation

instruction if only to preserve the issue.77

Court acknowledged that the legislature had considered creating a strict liability DIH crime but did not enact it. Instead, the court chose to explicitly require "specific evidence that the defendant knew or should have known that his or her conduct created 'a high degree of likelihood that substantial harm will result, '" in order to "convict the person who sold or gave the heroin to the decedent of involuntary manslaughter. " Commonwealth v. Carrillo, 131 N.E.3d 812, 822, 828 (Mass. 2019) (internal citation omitted). Finding that the prosecution "proved no additional facts that transformed the inherent possibility of an overdose arising from any use of heroin into a high degree of likelihood of an overdose" , the court vacated Carrillo's conviction for involuntary manslaughter. Id., at 828 .

75 See United States v.Alvarado, 816 F.3d 242, 250 (4th Cir. 2016) (citing United States v. Cobb, 905 F.2d 784, 789 (4th Cir. 1990)) (“[W]e conclude that the district court fairly stated the controlling law in refusing to instruct the jury that § 841(b)(1)(C) contains a foreseeability requirement. ”); see also United States v. Burkholder, 816 F.3d 607, 621 (10th Cir. 2016) (“We thus hold that § 841(b)(1)(E)’s provision that ‘death . . . results from the use’of a Schedule III controlled substance requires only proof of but-for causation. ”) (omission in original); United States v. Webb, 655 F.3d 1238, 1250 (11th Cir. 2011). In Webb, the court cited multiple cases and noted that “some focus on foreseeability and others on proximate cause. ” 655 F.3d at 1250.

76 One of the two questions on which the Supreme Court granted review in Burrage was “[w]hether the defendant may be convicted under the ‘death results’ provision . . . without separately instructing the jury that it must decide whether the victim’s death by drug overdose was a foreseeable result of the defendant’s drug-trafficking offense. ” 571 U.S. at 208 (citing United States v. Burrage, 569 U.S. 957 (2013)). However, the court “[found] it necessary to decide only” the question of actual causation. Burrage at 210.

77 See Burkholder, 816 F.3d at 621–24 (Briscoe, J., dissenting), for a thorough and reasoned argument that the federal statute requires proof of foreseeability. Judge Briscoe believed the statute should be read to include a proximate cause requirement, stating he was “not persuaded that Congress clearly intended to impose a strict liability on a criminal defendant for any death resulting from his drug-trafficking offense. ” Burkholder at 624.

Version Date July 2021 – Check https://ssrn.com/abstract=3265510 for most current edition

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