When Cause-in-Fact is, in Fact, Not the Solution: How Burrage Failed to Narrow the Scope of the Controlled Substances Act’s “Death Results” Sentencing Enhancement

In the wake of the opioid crisis and the increasing role of prosecution as a way to combat the sale and use of drugs, this Note considers the twenty-year mandatory minimum sentencing enhancement for when “death results” under the Controlled Substances Act. In deciding Burrage v. United States, the Supreme Court settled the circuit split on what the correct causation standard is for the “death results”, by applying a “but for” cause standard. Although the “but for” cause standard is narrower than the previously applied “contributing cause” and “substantial factor” standards, recent cases indicate that the scope of the statute has not narrowed in practice. This Note considers several possible reasons for this lack of impact: juror confusion and moral judgment, as well as difficult toxicological problems in cases where the defendant has taken multiple drugs. Although not a perfect solution, this Note proposes having Congress amend the CSA to require a proximate cause standard for the “death results” to address and resolve many of these concerns.