Scholarly Commons @ IIT Chicago-Kent College of Law

Article Title

Combating the Opioid Crisis: How a Discretionary Departure May Encourage Application of the “Death Results” Sentencing Enhancement

Authors

Mara A. Somlo, Chicago-Kent

Abstract

In March 2018, the National Institute on Drug Abuse declared the misuse of and addiction to opioids a national crisis. With the number of drug overdose deaths exceeding 72,000 in 2017, then–U.S. Attorney General Jeff Sessions instituted a policy instructing federal prosecutors to pursue the most serious, readily provable offense. To combat the opioid epidemic, federal prosecutors can seek the “death results” sentencing enhancement, which creates a mandatory minimum sentence of twenty years when a defendant commits a drug offense and death or serious bodily injury results from the use of the drug. This sentence is significantly longer than the statutory penalty for simple drug distribution.

The Seventh Circuit, in United States v. Harden, considered as a matter of first impression whether the “death results” enhancement requires the government prove the drug user’s death was reasonably foreseeable to the defendant. It held the death need not be foreseeable because the statutory language does not call for a finding of proximate cause. While the Seventh Circuit reached the right decision in Harden, court precedent applies two very different approaches to two substantially similar fact patterns, leaving some courts asking for discretion.

While the legal reasoning as to why the government need not prove foreseeability is sound, judges should be able to depart from the mandatory minimum in cases where the sentence would be a miscarriage of justice. Granting a judge discretion in the form of a downward departure will not inhibit narcotics prosecutions and may in fact improve the opioid crisis. Prosecutors will not have to prove the death was foreseeable. Defendants with cases that teeter the line between accidental and criminal conduct will have an avenue of relief. Defendants with cases warranting the mandatory minimum sentence will receive them. Those who don’t can be directed to addiction programs and assist law enforcement in pursuing their supplier, which in turn decreases the number of addicts while continuing to pursue investigations that warrant the use of these resources.

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Recommended Citation

Mara A. Somlo, Combating the Opioid Crisis: How a Discretionary Departure May Encourage Application of the “Death Results” Sentencing Enhancement, 14 Seventh Circuit Rev. 130 (2018).
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol14/iss1/6