by Sherry F. Colb
In my Verdict column for this week, part 2 of a 2-part series of columns, I continue my analysis of Burrage v. United States, a case currently before the Supreme Court on the question of when a heroin dealer can be said to have caused the death of a customer who uses the purchased heroin. For whatever light it might shed on the issue, I would like to consider competing tests for the definition of insanity.
Let me explain why I think this might be useful. An arguably embedded premise of laws that attribute responsibility for a heroin-user's death in his dealer is the notion that even though a user is choosing to consume a dangerous substance, the user may not be entirely (or perhaps even partially) at fault for his own self-destructive behavior. If the user is not the primary culprit, then the other (voluntary) actor in the scenario, the dealer, is the logical candidate for absorbing the blame. This is perhaps why a merchant who sells a product to a customer, without concealing the nature of the product and without otherwise providing false or fraudulent information, may find himself incarcerated for an extended period of time for killing that customer.
In American law, we ordinarily shy away from relieving people of responsibility for their own actions. If the drug-dealer is not in any way compelling or tricking the customer, then why are we not simply saying that the customer effectively committed suicide or courted suicide by utilizing a dangerous drug? (And if heroin is not sufficiently dangerous to merit such a statement about "suicide," then why doesn't that suggest a corresponding flaw in the attribution of "killing" to the salesperson?).
One answer that subtly emerged during oral argument (an argument before a Court that, to be fair, was not tasked with questioning the wisdom of the law itself) is the differential dangerousness of heroin for different users. The question came up whether a fatal overdose is more likely to occur in a heroin addict or a heroin novice. As it turned out, according to the answer the Justices received, it appears that a heroin addict is far less likely to overdose than is her novice counterpart. Based on my limited academic study of addiction processes as an undergraduate majoring in psychology, I would guess that this difference may be a function of the fact that addicts are familiar with the amount of heroin necessary for them to, alternately, satisfy their withdrawal cravings, or produce a high, whereas new users must base their judgments on the reported experiences of friends who may have already developed a tolerance to heroin or may have a different body mass (or both).
The reason the Justices asked about who is most likely to overdose, I suspect, is that if the answer were that the addicts are, then it would seem logical to say that a dealer who sells to an addict is the proximate cause of the addict's death, while the dealer who sells to a non-addict is not. This would seem logical because, if addicts were most vulnerable, then we could say two things about the addict who purchases heroin: 1) she is operating with a limited ability to control her impulses (because she is addicted); and 2) her death is foreseeable to the dealer, because it is more likely to occur than the death of a non-addict. Unfortunately for the logic, however, the two factors turn out to point in different directions.
The inability or limited ability to control one's impulses is, of course, one of the tests for insanity as a criminal defense, though this "control test" has been largely in disfavor since John Hinckley successfully mounted an insanity defense after attempting to assassinate President Reagan. The second test for insanity is a cognitive test, under which the insane defendant is either unable or has a limited ability to understand either the nature of the crime she has committed or the difference between right and wrong that she might have otherwise brought to bear on the decision to commit the crime. I see a parallel between the two tests for insanity and the two sorts of vulnerability that the Justices were contemplating regarding the heroin user who dies. The addict has limited control over her behavior and therefore may be relieved of responsibility for bringing about her own death by ingesting heroin, thereby paving the way for blaming the heroin dealer for the death. On the other hand, the relative novice, who is not addicted but simply wishes to use heroin for fun, is unable to know, cognitively, how much heroin might constitute an unsafe dose for her. By contrast to cognitive insanity, the heroin novice's cognitive disadvantage here is not a disability from which she suffers but simply a lack of knowledge that corresponds to her status as a heroin novice. Nonetheless, the non-addict's relatively greater likelihood of suffering an overdose suggests a structurally similar decision to act in a manner that could cause death without appreciating the nature and quality of one's conduct.
It is tempting, in the face of either sort of inability -- control or cognitive -- to relieve the actor of some responsibility for the consequences of her actions, and this is especially true when those consequences are to cause serious harm to herself rather than to a third party (as would be the case in the criminal prosecution of a defendant who claims insanity as a defense). And the obvious person to take up the responsibility slack is the dealer who sells the heroin. The fact that both the addict and the non-addict/novice suffer from one or the other form of disadvantage may help account for a law that blames a drug-dealer for the death of a customer who simply takes the drug that she knowingly purchased from the dealer, regardless of where the user happens to fall along the continuum of heroin experience.
My view, as described in the column, is that users should ordinarily bear as much responsibility as dealers for purchasing decisions, absent coercion or actual disability. I would accordingly be inclined to resist the temptation to blame the heroin dealer for the death of a consenting adult who uses the drug. It may be inaccurate to describe drug use as a "victimless" crime, because people do die of overdoses (and suffer in numerous other ways because of the drug). However, the existence of a victim does not necessarily imply a perpetrator. Sometimes there simply are no perpetrators, as unsatisfying as that might be to the many of us who like to have an individual to whom to attach blame.