Is the Supreme Court Asking the Wrong Question?

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December 2, 2013 - By Jess Cochrane

As soon as this week, the United States Supreme Court will decide Burrage v. United States, a case involving the death of Joseph Banka, a longtime IV drug user, following his purchase of heroin from the defendant, Marcus Burrage.

The Court will confront a narrow legal question: whether Burrage can be sentenced to 20 years in prison under a provision of the federal Controlled Substances Act increasing the sentence for drug sellers if the drugs they sell result in death or serious bodily injury.  Burrage argues that he should not be given additional time simply because the heroin he sold was a “contributing case” of Banka’s death.

Like many of those who succumb to drug overdose, Banka had benzodiazepines and other prescription drugs in his system when he died.  Sadly, the question of whether Burrage can be punished for Banka’s overdose death obscures the larger public health issues that his death raises.  No lives are saved by locking Burrage behind bars for 20 years, as others will gladly take his place on the street to supply the product, heroin—demand for which shows no signs of flagging. The focus on whether a drug seller can be held “responsible” if a buyer dies after consuming the product distracts us from the reality that we possess the tools to prevent deaths such as Banka’s—and locking up sellers for decades isn’t one of them.

Missed is the opportunity to educate the nation about the dangers of mixing multiple central nervous system depressants—mixing alcohol with opioids or benzodiazepines (like Xanax or Valium), or benzodiazepines with opioids, greatly increases the risk of lethal overdose. Naloxone—the drug that reverses opiate overdose as it happens—is available by prescription and through community-based programs.  And 911 Good Samaritan laws incentivize those who have contact with drug users (including dealers) to respond appropriately in a health crisis by calling for help.  Had Mr. Burrage—or anyone else—been at the scene when Banka passed out from his drug use, he could have administered naloxone and/or safely called 911 to summon medical assistance.  Because it often takes hours to die from opioid overdose, Mr. Banka’s life might well have been saved.  Perversely, Burrage would’ve been discouraged from seeking help, had he known he could face 20 years in prison if Banka died after he’d been sold just a single gram of heroin.

The federal Controlled Substances Act (mimicked in many states’ drug laws) reflects the misguided view that we can combat drug abuse with prosecution and incarceration.  Forty-plus years of punitive policies have proven this premise wrong—and in the process destroyed millions of lives, shattered countless families, and destabilized communities across the nation.

As long as we continue to value punishment over the fundamental values of health, life, and human rights, people will lack the information they need to make safer choices.  As long as our criminal laws continue to disincentivize seeking help, people will continue to die tragic, preventable deaths.

And as long as we focus on where to pin the blame for drug-related harm—instead of how to reduce it or prevent it altogether—we deprive ourselves of opportunities to improve the well-being, and save the lives of our family members, friends, neighbors, and co-workers who use drugs.

Jess Cochrane is an intern for the Office of Legal Affairs at the Drug Policy Alliance.

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