Shea blogged about the new crimes of death by distribution and aggravated death by distribution in G.S. 14-18.4, here. These crimes hit the books this past December, and 2020 will likely see the first prosecutions under the law. The Health In Justice Action Lab at Northeastern University School of Law has put together a toolkit to assist defense attorneys with these types of cases, available here. In full disclosure, the toolkit is part of a larger advocacy effort against these types of laws. Whatever your feelings about the policy reflected in the law, it seems likely to present new challenges for court actors applying it. This post highlights issues identified in the toolkit that may arise in NC prosecutions. Actual Causation. The statute requires both that the defendant’s act of unlawfully selling the drug causes the death of the user and that the sale be the proximate cause of the user’s death. [If a causation discussion raises traumatic memories of 1L torts class, rest assured you are not alone.] Actual causation requires proof that, without the act of the defendant, the victim would not have died. This is an objective test—but for the act of the defendant, would the victim still be alive? See Paul H. Robinson, Criminal Law Defenses § 88(d) (1984). This is often referred to as the “cause in fact” and represents “the minimum requirement for a finding of causation when a crime is defined in terms of conduct causing a particular result.” Burrage v. U.S., 571 U.S. [...]
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