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12 Crim. L. Prac. 3 (2021-2022)
Harsh and Unique: Exploring the Legality of the Resulting in "Death or Serious Bodily Injury" Enhancement of 21 USC Sec. 841

handle is hein.journals/crilp12 and id is 75 raw text is: THE CRIMINAL LAW PRACTITIONER VOLUME XII, ISSUE II HARSH AND UNIQUE: EXPLORING THE LEGALITY OF THE RESULTING IN DEATH OR SERIOUS BODILY INJURY ENHANCEMENT OF 21 USC § 841 BYJOHN LAMONT ASSISTANT FEDERAL PUBLIC DEFENDER DEL R, TX I. INTRODUCTION A. STATEMENT OF ISSUES The resulting in death or serious bodily injury enhancement of 21 U.S.C. § 8411 (death enhancement) serves as a great proxy to increase mandatory minimum drug trafficking sentences. Though not cruel and unusual, the death enhancement is both harsh and unique. Harsh because the enhancement can mandate a life sentence. Unique because the enhancement is triggered primarily by the results of third-party drug use,2 which can be quite attenuated from the actual offense conduct. To some, the harshness of this enhancement is just policy and an appropriate punishment for an individual who traffics a drug that kills someone. Though the death enhancement is premised on shifting blame for the outcome of individual drug abuse, it is also an effective means to deter and ultimately punish the social harms of drug trafficking. On the other side of the debate are the criminal justice reform advocates. To many reformers, the death enhancement is the prototypical mandatory minimum sentence. It is overly punitive, fails to account for individual offense circumstances and generally drives mass incarceration. Though a policy debate about the harshness of the death enhancement would be interesting, the unique legalities of the enhancement are of more immediate importance and are therefore the subject of this article. The distinctive language of the death enhancement implicates nuances of statutory interpretation and potential conflicts with the Constitution and fundamental principles of criminal law. This article will discuss these issues and why the weight of national authority interpreting the death enhancement must be thoroughly scrutinized. With the uptick 1 See 21 U.S.C. § 841 (b)(1)(A); (b)(1)(B); (b)(1)(C); (b)(1)(E)(i)-(ii). This article will refer to these provisions jointly as the death enhancement. 2 For purposes of this article, the users of such substance will be referred to as third-parties. The first and second parties are the parties to the criminal matter-the United States and the defendant. HARSH AND UNIQUE 1 3

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