Why then does legal culpability not follow moral culpability? Why does the law punish more severely those dealers whose clients happen to die from an overdose? The answer goes beyond the supplier-addict issue. In general, the law punishes equally culpable conduct differently depending on the result, even when the result is completely fortuitous and beyond the intent of the actor. Consider two equally drunken or drugged drivers who become unconscious behind the wheel while driving at the same speed in the same neighborhood. The car of one of them crashes into a school bus resulting in the death of several children, while the car of the other one pins harmlessly against the wall a bank robber escaping with the loot. The first is convicted of multiple homicides, while the second is given a reward, despite their morally indistinguishable conduct. In philosophy this is called “moral luck”—an oxymoron if there ever was one, since luck, which is random, can never be moral, which is purposive.

But the law insists on judging legal culpability by reference, at least in part, to results. Hence the felony murder rule, which says that if a defendant has committed a felony (such as selling heroin) that causes death (such as by an overdose), the original felony (sale of heroin) is escalated to murder. In some jurisdictions, felony murder, even when the death was utterly unpredictable and fortuitous, carries the death penalty. This rule, which originated in the British common law, has now been abolished in Great Britain and most other western countries, but it endures in the United States, where it is often applied in a Draconian manner, turning our courts into betting parlors where a form of legal Russian roulette is played with the lives and liberty of defendants.