SCOTUS End-of-Term Roundup: Causation Cases

Author’s Note: With this, I begin a series of posts that will review the Supreme Court’s criminal cases from the now-concluding term.

The Court’s docket this term included two interesting causation cases that came to somewhat different conclusions. The cases were Burrage v. United States, 134 S. Ct. 881, which dealt with criminal responsibility for a drug-related death, and Paroline v. United States, 134 S. Ct. 1710, which dealt with restitution for a child pornography victim. In both cases, the Court had to grapple with tensions between traditional, narrow understandings of causal responsibility in the law and a natural human desire to hold bad actors accountable for tragic harms with which they seem to have some connection, even if that connection is a tenuous or uncertain one.

Burrage nicely illustrates the tension.  

Burrage supplied heroin to Banka while Banka was in the midst of what proved to be a fatal, 24-hour drug binge. At the time of his death, Banka’s system contained heroin metabolites, codeine, alprazolam, clonazepam metabolites, and oxycodone. Medical experts could not say with certainty whether Burrage’s heroin was a “but-for” cause of Banka’s death; that is, the experts acknowledged that Banka might have died of an overdose even without the heroin.

Prosecutors nonetheless charged Burrage under 21 U.S.C. §841(b)(1)(C), which provides a 20-year mandatory minimum prison term for unlawful distribution of certain controlled substances when “death or serious bodily injury results from the use of such substance.”

The Supreme Court thus confronted a basic causation question in Burrage: does the “death . . . results” language require the government to prove but-for causation, or was it enough for the government to prove that heroin was a “substantial” or “contributing” factor in Banka’s death?

The Court ultimately sided with Burrage and interpreted the statute to require strict but-for causation.

Writing for the Court, Justice Scalia rested his analysis on the “ordinary, accepted meaning” of “results from,” as well as a long line of criminal, tort, and employment discrimination cases that require but-for causation in a variety of legal contexts. “In sum,” Scalia observed, “it is one of the traditional background principles against which Congress legislates that a phrase such as ‘results from’ imposes a requirement of but-for causation” (internal quotation marks and citation omitted).

The Court was not swayed by a relatively recent line of state-law cases that adopt “substantial-factor” causation in situations, like Burrage, where multiple actors contributed to a result and strict but-for causation would absolve all of them of legal responsibility. These cases seem to reflect that basic human instinct that someone should be held accountable whenever a tragedy occurs.

The Court noted several reasons for rejecting the substantial-factor test: the leading state-court cases were too recent to have formed part of the “background principles against which Congress legislate[d]” when it adopted the “death results” language in 1986; the test was contrary to the “ordinary, accepted meaning” of the statutory language; the test suffered from various ambiguities; and the rule of lenity indicated that any uncertainties in the statute should be resolved in the defendant’s favor.

The Court also turned aside the government’s policy argument that but-for causation was too demanding in light of the realities of addiction and overdoses: “Addicts often take drugs in combination, as Banka did in this case, and . . . at least 46 percent of overdose deaths in 2010 involved more than one drug.” The Court observed that, even without the 20-year mandatory minimum, drug traffickers still face stiff sentences under other federal laws.

Paroline dealt with causation in the context of a claim for restitution. 21 U.S.C. §2259 requires an award of restitution in favor of the victims of certain federal offenses, including child pornography possession.

Paroline was convicted for possessing child pornography, including two depictions of a particular victim whose images have circulated widely on the Internet. The victim sought restitution from Paroline in the full amount her losses, including about $3 million in lost income and $500,000 in future treatment and counseling. She conceded that none of her claimed losses flowed from any specific knowledge of Paroline or his offense conduct, but rather from her general sense that many individuals were viewing her images.

The district court ruled that the government failed to satisfy its burden of proof as to restitution, reasoning that no one could calculate any particular share of the victim’s losses that were caused by Paroline.

The Supreme Court thus once again faced a causation question. And, once again, a defendant pushed for strict but-for causation, while the government advanced a substantial-factor test.

This time, the Court declined to give either side all that it wanted. The Court relaxed the requirements of but-for causation, but refused to make Paroline liable for the full amount of the victim’s losses. Instead, in cases like these, the district court is supposed to order restitution “in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.” The Court seems to be contemplating a very mushy, totality of the circumstances kind of test. The Court indicated that relevant considerations “could include the number of past criminal defendants found to have contributed to the victim’s general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim’s general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant’s relative causal role.”

The Court seems to envision a Goldilocks-type approach—not too hot, not too cold, but just right. Court thus says that the restitution amount should not be “severe,” but nor should it be a “token or nominal amount.

What accounts for the different approaches in Burrage and Paroline, with the one insisting on but-for causation and the other embracing a version of substantial-factor causation? Although different statutes were at issue, nothing in the statutory language seemed to differ in any material respect. Both statutes employed simple, unadorned causation terminology; if such language implied but-for causation in the one case, then the same logic would seem applicable in the other.

Unfortunately, the Court did not provide a clear acknowledgement, much less a persuasive explanation, of the tensions between the two decisions.

Justice Kennedy, writing for the Court in Paroline, emphasized that Congress made restitution “mandatory” in §2259(b)(4); he was loathe to send a victim away empty-handed in the face of congressional intent to the contrary. Yet, the mandatory minimum at issue in Burrage was also . . . well, mandatory. We are still left with a conundrum: in one case, Congress’s express desire for stiffer punishment in death cases was seen as tempered by an implied congressional preference for traditional legal understandings of causation, while in the other case Congress’s express desire for restitution was given fuller play.

Let me suggest two different ways of accounting for what the Court did in Paroline. First, these kinds of cases—bad actor, tragic harm, and an uncertain or tenuous connection between the two—cry out for some sort of middle-ground, split-the-difference resolution. We intuitively want to see the bad actor held accountable for the harm, but we also recognize that full accountability is apt to mean a disproportionately severe punishment. What the Court did in Paroline was quite transparently an effort to balance or reconcile these competing ends of “impress[ing] upon offenders that their conduct produces concrete and devastating harms for real, identifiable victims” and basing restitution, consistent with the moral ideals of individual responsibility and proportionality in punishment, on “the consequences of the defendant’s own conduct, not the conduct of thousands of geographically and temporarily distant offenders acting independently, and with whom the defendant has no contact.” Indeed, emphasizing the proportionality concern, the Court went so far as to suggest that full restitution in case like Paroline might violate the Excessive Fines Clause of the Eighth Amendment. This concern helped to support the Court’s Goldilocks solution.

A restitution case like Paroline, in which the final outcome might fall anywhere on a spectrum from zero dollars to 3.5 million dollars, lends itself to a split-the difference decision. What really differed in Burrage was the absence of a middle-ground solution: the Court had a binary decision—Burrage was either guilty or not guilty of the “death results” offense. The Court had to choose either but-for causation or substantial-factor causation; there was no room for a hybrid approach of the sort the Court developed in Paroline.

Interestingly, though, in a sense you might actually see Burrage as also reaching a split-the-difference outcome, albeit in a more subtle, indirect fashion. As noted above, the Burrage Court itself observed that the defendant still faced a potential for very severe punishment even without the 20-year mandatory minimum. The real practical impact of the Court’s decision was not to let bad actors like Burrage off the hook, but to make their punishment subject to the discretion of a district-court judge—a judge who will be free to take into account the moral significance of an overdose victim’s death, without necessarily treating the case as tantamount to an intentional, direct-causation homicide. In so doing, the district court moves from a binary decision to another sort of spectrum decision, in which the unit of measure is months in prison, rather than dollars.

So, this is one way of reconciling Paroline and Burrage: in both cases, the Court chose an approach that maximized the discretion of district-court judges and made possible split-the-difference outcomes in marginal causation cases.

My second proposed way of reconciling the cases is based instead on personalities and politics. In Burrage, all nine Justices agreed with the outcome. The liberal Justices, you might say, were acting true to form, evincing a solicitude for criminal defendants and a desire to restrain punishment—especially when that punishment comes in the form of a crudely designed mandatory minimum. Although Burrage was not a constitutional case, the liberal Justices voted in a manner that was perfectly consistent with views they have expressed in Eighth Amendment decisions.

From an ideological standpoint, the only surprise in Burrage was that the conservatives joined in; this seemingly cuts against their law-and-order grain.

To take Scalia’s majority opinion in Burrage at face value, though, the conservatives did not see the case as being about penal severity at all; they were simply taking their preferred methodology of statutory interpretation (that is, adopting the ordinary meaning of the text) and faithfully following it to its logical conclusion. Whether this conclusion was tough or lenient was immaterial to them.

That account of the conservatives’ votes in Burrage may be entirely correct, but it is also possible to see an alternative ideological subtext in the Scalia opinion. Interestingly, Scalia did not rely solely on criminal cases, but instead cited causation precedent from different areas of substantive law interchangeably. This makes sense: causation is not an issue peculiar to criminal law, but also a foundational concept for various types of civil liability. And, in the realm of civil liability, the stereotypical conservative position flips from anti-defendant to pro-defendant. This orientation may help to account for the conservative votes for Burrage: Scalia et al. did not want to create a “substantial factor” precedent that might be cited later in support of more expansive approaches to civil liability.

Two of the Court’s liberals, Justices Ginsburg and Sotomayor, highlighted this understanding of Burrage through a short opinion concurring in judgment. They declined to join the majority opinion precisely because they saw it as asserting a strict approach to causation in a generalized way. They would have decided the case on rule of lenity grounds, thus more clearly limiting its reach to the criminal sphere.

Based on this account of Burrage, we should not be surprised to see three of the conservatives in dissent in Paroline. Scalia, Thomas, and Roberts all would have decided fully in favor of the defendant, predictably supporting the same strict approach to causation they endorsed in Burrage—presumably with the same concerns in the back of their minds about the implications for tort and employment-discrimination liability.

The real mystery in Paroline is why the liberals switched sides and supported a more expansive approach to liability in a criminal case. (When it comes to issues of penal restraint, I would classify Kennedy as a liberal, although in other areas of jurisprudence it might seem odd to characterize him in that way.)

Let me suggest two aspects of Paroline that might account for the liberal flip. First, although Paroline was a criminal case, the causation question arose specifically in connection with a claim for restitution, which much more closely resembles civil liability than a conventional guilt-innocence determination. The normal liberal resistance to expansive liability in criminal cases may be relaxed when victim compensation is at issue, rather than a mandatory minimum prison sentence.

Second, whatever liberal resistance there may be to expansive liability in drug and mandatory minimum cases, that resistance is probably much less in other sorts of criminal cases. Environmental and other white-collar crimes are good examples of cases in which we might expect liberal Justices to take a tougher stand than conservatives. (When it comes to sentencing, anyway, there is research to support the stereotype that Democratic appointees sentence white-collar offenders more harshly than Republican appointees.) Cases of sexual victimization may be another area in which liberals tend to be no less tough than conservatives. For instance, recall the role of feminists in pressing for tougher responses to rape in the 1970s and 1980s. From this sort of liberal perspective, Paroline may have appeared an especially unsympathetic offender, and his restitution claimant an especially sympathetic victim.

So, this might be another way of explaining Burrage and Paroline: conservative Justices vote consistently for strict causation standards, while liberal Justices favor such standards in some contexts (e.g., liability for a drug mandatory minimum) and oppose them in others (e.g., restitution for sexual victimization).