The facts in Robinson were disquieting: At the appellant’s jury trial, two Los Angeles police officers had testified that they observed the appellant’s arms were scarred and discolored with many needle marks and a scab. The officers stated that, while questioning the appellant, he admitted to using narcotics on an occasional basis. Based on 10 years of law enforcement experience, one officer opined that such scars and discoloring resulted from the appellant injecting his veins with nonsterile hypodermic needles. When he testified, the appellant denied any drug use and explained the marks on his arm resulted from allergies he developed while in the military. Two witnesses corroborated the appellant’s testimony.
The jury in Robinson found the appellant guilty after hearing the court’s instructions on the law distinguishing narcotic use from addiction to the use of narcotics: “To be addicted to the use of narcotics is said to be a status or condition and not an act. It is a continuing offense and differs from most other offenses in the fact that [it] is chronic rather than acute; that it continues after it is complete and subjects the offender to arrest at any time before he reforms.”2 The final jury instructions added that the “existence of such a chronic condition may be ascertained from a single examination, if the characteristic reactions of that condition be found present. . . . ‘All that the People must show is either that the defendant did use a narcotic in Los Angeles County, or that while in the City of Los Angeles he was addicted to the use of narcotics. . . .’”3
The U.S. Supreme Court in Robinson undisputedly recognized each state’s ability to use its own wisdom in selecting from a broad range of options to regulate illegal drug use within its borders. Each state can choose to establish criminal penalties, provide for involuntary confinement in treatment programs, or afford public health education programs. Instead, the Court stated that with this California statute, “we deal with a statute which makes the ‘status’ of narcotic addiction a criminal offense, for which the offender may be prosecuted ‘at any time before he reforms.’”4 California argued, “it is ‘the proof of addiction by circumstantial evidence . . . by the tell-tale track of needle marks and scabs over the veins of his arms, that remains the gist of the section.’”5
Justice Potter Stewart, writing for the majority, noted the current best practices of dealing with drug addictions should be similar to handling those with mental illnesses: “It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease. . . . But, in the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.”6 Justice Stewart wrote that an addiction to narcotics is “an illness which may be contracted innocently or involuntarily . . . ,” adding that “[e]ven one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.”7 His majority opinion recognized that despite “the vicious evils of the narcotics traffic” causing serious concern of government, numerous other ways exist on which such “evils may be legitimately attacked.”8
Justice William O. Douglas concurred but added more bases for how treating drug addicts as criminals was cruel and unusual punishment. He discussed punishments prescribed by medical doctors in sixteenth century England, where “treatment” encompassed physically beating insane individuals into regaining their reasoning. In the United States, as a deterrent, violently insane individuals were punished at “the whipping post,” burned at the stake, hanged, or imprisoned in dungeons.9 Treating mental health diseases with “purgatorial acts and ordeals is an ancient one in medicine,” dating back to the Old Testament, using “fallacious medical rationales for such procedures as purging, bleeding, induced vomiting, and blistering, as well as an entire chamber of horrors constituting the early treatment of mental illness.”10
Justice Douglas stated that those addicted to drugs have a contagious disease, particularly in our country where “addiction is more prevalent . . . than in any other nation of the western world.”11 He stated that “those living in a world of black and white put the addict in the category of those who could, if they would, forsake their evil ways.”12 Justice Douglas further recognized that “the first step toward addiction may be as innocent as a boy’s puff on a cigarette in an alleyway. It may come from medical prescriptions.” He explained the plight and treatment of heroin babies addicted at birth. He warned that we cannot permit the sick to be treated as criminals in our “age of enlightenment” and we “cannot tolerate such barbarous action.”13
Justice John Marshall Harlan also concurred, indicating he was “not prepared to hold that on the present state of medical knowledge” the statute was completely irrational and, therefore, unconstitutional by virtue of cruel and unusual punishment. He believed the statute, however, authorized “criminal punishment for a bare desire to commit a criminal act.”14
In dissent, Justice Tom C. Clark differed substantially from the majority by emphasizing that this California statute should be examined in light of an extensive report promulgated in the 1950s by scientists, doctors, law enforcement, and others who addressed the prevention and cure of addiction to narcotics. His view was that this report supported the statute where addicts do not respond to hospital treatment and should be incarcerated for a period of not less than 9 days as a “treatment for volitional addicts.”15 Justice Clark wrote that California should have the power to deter addiction by imposing criminal punishment of incarceration for 3 to 12 months, which he believed was not unreasonable when applied to persons who voluntarily placed themselves in conditions posing these serious threats to the state of California.16
Culpability of the Supplier
To the extent Justice Clark accurately reflected research in 1962, we have fortunately evolved over the years from his perspective of faulting the “volitional addict” to holding the real culprit, the drug supplier, responsible for distributing drugs to addicts. In 1986, the drug death of Len Bias, a promising 22-year-old super-talented basketball star from the University of Maryland, who was found dead on a Baltimore street, brought shock and sorrow across a nation and would have a future impact on our nation’s laws. This tragedy was for the end of a bright future of a young man that the Boston Celtics had just selected as their second overall pick in the National Basketball Association draft and signed a $4 million contract with him. His potential seemed to have no limits, with scouts considering him as the next Michael Jordan. To our dismay and frustration, such a talented future star was discovered to be living as a cocaine addict after his autopsy demonstrated he had high levels of cocaine in his blood samples. His blood levels were so high that he had to have consumed multiple “hits” of cocaine. After an extensive investigation, Baltimore police arrested the individual that law enforcement believed responsible for delivering the fatal drug to Len Bias. In a novel approach, the district attorney in Baltimore charged the defendant with homicide for delivery of illegal drugs causing death. This approach subsequently has become known as the “Len Bias Law” and is being used more frequently as a new tool in the opioid crisis.17 As recent as October 31, 2017, a federal judge applied “a little-used statute named after a college basketball star who died of a drug overdose to sentence a Wilson man to more than 25 years in prison after selling a batch of heroin that led to another man’s death.”18
The Current Crisis
Medical experts find that the current opioid crisis is notorious for not only the increased potency of the drugs but also for the number of different drugs ingested. For example, in Detroit, pathologists have concluded that the typical drug death contained an average of 7.4 different drugs. The U.S. Supreme Court case of Burrage v. United States19 is an illustrative case regarding the dilemma faced by prosecutors in proving causation where multiple drugs are found in the decedent. Burrage had been found guilty of unlawfully distributing a fatal dose of heroin to the decedent, who had a long-time drug addiction. Experts found heroin as well as other drugs in the decedent’s blood, such as alprazolam and clonazepam, oxycodone (which the decedent had stolen from a roommate, not received from Burrage), hydrocodone, marijuana, and other drugs. Medical experts had testified that the decedent might have died even if he had not taken the heroin. The district court, however, instructed the jury that the prosecutor had to prove only that heroin was a contributing cause of the decedent’s death. Burrage was found guilty and sentenced to the 20-year mandatory minimum sentence under the Controlled Substances Act,20 which required heightened sentences for drug sales causing death or serious bodily injury. Burrage successfully challenged his conviction on the basis of multiple mixed drugs found in the decedent. The Court observed that the statute requires that death “results from” the sale of illegal drugs. Because the decedent in this case was found with multiple drugs in his system, the Court found that the heroin sold by Burrage could not be considered an independently sufficient cause of death. The concept of “but for” causation required the substance to be able to stand alone in causing the death. The Supreme Court ruled that to imply the ascribed drug as a “contributing factor” was not sufficient for conviction.
Documentation of Causation
From both judicial and medical perspectives, the certification of the cause and manner of death by medical examiners and coroners definitely has important implications for the successful adjudication of drug-related deaths. The certification of a drug death may vary widely across the United States. Although the majority of medical examiners and coroners certify routine, nonintentional drug-related deaths as accidental, a significant number of deaths are certified as undetermined. The American College of Medical Toxicology and the National Association of Medical Examiners convened an expert panel of pathologists and toxicologists to determine best practices in these cases.21 Their findings recommended obtaining complete autopsies with toxicology results as well as considering the context of circumstances surrounding death, medical history, and scene findings; completing scene investigations and obtaining prescription information and pill counts; retaining blood, urine, and vitreous humor; conducting toxicological panels for opioid and benzodiazepine analyses, as well as other potent depressant, stimulant, and antidepressant medications; interpreting postmortem opioid concentrations in correlation with medical history, scene investigation, and autopsy findings; and other best practices. Certifying deaths as a drug overdose requires that medical experts rule out all other causes of death. Prosecutors, defense counsel, and judges should possess the knowledge of these basic concepts of postmortem drug testing, interpretation, and certification. The following points and case studies provide insight into the investigation of drug deaths:
- Failure to Perform a Medicolegal Autopsy
As a result of the increasing number of drug deaths, many medical examiners and coroners make the mistake of electing to forgo autopsy examinations and instead rely solely on the detection of drugs in the body. Drug concentrations alone are not a reliable determinant of the cause and manner of death. For example, in many cases, patients routinely using narcotics will develop a tolerance to medications derived from opiates. There are few drugs, other than alcohol, that manifest definitive, predictable lethal concentrations, such as where cocaine and opiate tolerance exist. This raises the question of potential competing causes of death, relevant to whether the “but for” standard discussed in Burrage has been or can be met.
- Failure to Document Comorbidities
Although the legal requirement for causality requires an application of a “but for” standard, the medical literature reports that between 25 and 40 percent of postmortem examinations reveal pathological findings, not identified before death, that may alter the assessment of cause and manner of death. In many cases, natural diseases caused the death. Decedents may have comorbidities, such as victims having severe coronary artery disease as well as having used cocaine, which raised questions of potentially competing causes of death.
Case Study One
A 20-year-old male who is a regular heroin user accompanied his mother and her boyfriend on a one-week vacation. During the final days of the trip, the man appeared lethargic and severely ill. Upon returning from the trip, the man obtained and used heroin and was found dead the following morning. Toxicological examination revealed the presence of heroin in the blood. The presence of a drug in the body is not in itself sufficient evidence to have caused the death in light of the significant myocarditis. In fact, an autopsy demonstrated myocarditis, an extensive viral infection of the heart that was unrelated to the use of drugs and characteristic of the symptoms displayed by the decedent. The defendants, who were charged with providing him heroin, pled to a lesser crime of delivery instead of delivery causing death.
- Failure to Definitively Identify Drugs
Medical examiners must work under increasing economic and logistical pressures to make diagnoses in the most cost-effective and efficient manner, often resulting in a rationalization of these deaths without actually identifying the drugs involved, which may influence the ability to proceed. Due to the rapid metabolism of heroin, the diagnosis is confirmed on the detection of the characteristic metabolite 6-Mononaceytlmorphine. This medical examiner’s office reported that 15.9 to 22.5 percent of cases were negative for 6-MAM in the blood and urine, detected only upon further testing of vitreous fluid of the eye. In cases where only morphine is present in the blood, failure to confirm the presence of 6-MAM in the vitreous fluid may result in courtroom challenges to the role of heroin in the causation of death.
Case Study Two
An autopsy was performed on the victim of an apparent drug overdose. Toxicology analysis revealed the presence of morphine, a commonly used analgesic and metabolite of heroin, as well as cocaine metabolites in the blood of the victim. The death was certified as mixed-drug toxicity (cocaine and heroin). At trial, defense counsel argued that his client only provided cocaine, which had all been metabolized prior to the ingestion of the heroin. The presence of the heroin metabolite was not sufficient for the “but for” requirement in Burrage. In addition, lacking the detection of 6-MAM, the detection of morphine was not sufficient in itself to rule the heroin as the cause of death.
- Failure to Determine Concentrations of Drugs
Under Burrage, it is essential to identify drugs leading to the death of the user. A victim may have multiple drugs identified in his or her body, possibly from various providers. Half of all heroin deaths solely contain heroin, while the remaining cases contain a mixture with other potentially fatal drugs. It is not sufficient to simply identify the presence of a drug in the body, a practice commonly used in pre-employment or workplace drug testing. In order to certify a death due to drugs to a reasonable degree of medical certainty, it is essential to quantify the drug concentration.
- Failure to Recognize Postmortem Artifacts of Drug Metabolism
Physiological factors inherent to the victim, such as postmortem drug redistribution and pharmacogenomics, may influence postmortem concentrations of these drugs, making medical examiners’ interpretations relatively impossible to determine. Postmortem drug redistribution is a well-established principle of postmortem toxicity whereby drug concentrations may be markedly elevated due to the passive release of drug from the tissues. The phenomenon is both time-dependent and site-dependent. As a result, the use of peripheral postmortem blood samples, typically from the subclavian (arm) or iliac (leg) vessels, is recommended. The site of the blood sample must be designated to ensure accurate interpretation.
In order to address the current opioid crisis, prosecutors across the United States are employing enhanced sentencing practices as a deterrent to drug traffickers. Under Burrage, the prosecution of drug deaths is held to a “but for” standard of proof where causation requires that the drug alone be sufficient to have caused the death. As a result, it is essential that judges, prosecutors, and defense counsel gain an understanding from both judicial and medical perspectives, such as relevant case law as well as the unique aspects of postmortem drug testing, the need for complete medicolegal autopsies, and proper identification and quantitation of drugs implicated in the death, for successful adjudication of drug-related deaths.
Endnotes
1. 370 U.S. 660 (1962).
2. Id. 662–63.
3. Id. at 663.
4. Id. at 666.
5. Id.
6. Id.
7. Id. at 667.
8. Id.
9. Id. at 668 (Douglas, J., concurring).
10. Id. at 669.
11. Id.
12. Id. at 670.
13. Id. at 678.
14. Id. at 679 (Harlan, J., concurring).
15. Id. at 680 (Clark, J. dissenting).
16. Id. at 685.
17. Gilson Thomas, Carol Rendon & Joseph Pinjuh, Rules for Establishing Causation in Opiate/Opioid Overdose Prosecutions—The Burrage Decision, 7 Acad. Forensic Pathol. 87 (2017). See also Eric Litke, More States Push Homicide Charges in Heroin Overdoses, USA Today, July 25, 2014.
18. Thomasi McDonald, How the “Len Bias Law” of 1988 Is Being Used to Get Longer Prison Sentences Today, News & Observer (Oct. 31, 2017), http://www.newsobserver.com/news/local/crime/article181955441.html.
19. 134 S. Ct. 881 (2014).
20. 21 U.S.C. § 841(b)(1)(C).
21. Gregory Davis, Nat’l Ass’n of Med. Examiners & Am. Coll. of Med. Toxicology Expert Panel on Evaluating & Reporting Opioid Deaths, Recommendations for the Investigation, Diagnosis, and Certification of Deaths Related to Opioid Drugs, 3 Acad. Forensic Pathol. 62 (2013).