November 07, 2010
Close the prescription drug loophole! And close the First Amendment loophole!
Both M. Simon and I have written previously about Dr. Stephen Schneider, who was vigorously prosecuted for and convicted of prescribing narcotic drugs to addicts. If he in fact did that, I have no philosophical problem with it -- any more than I have a problem with a liquor store selling booze to an alcohol-addicted patron. Legally, however, doctors are not allowed to prescribe to patients they know are simple drug addicts (as opposed to patients who become dependent while being medicated for other things). Under the present system, a doctor who provides narcotics for an addict in order to maintain his habit commits a crime. Now, I think many people (including some who believe that non-medical narcotic drugs should be illegal) would agree that bad as drug addiction is, that it might be better for addicts to be supplied by doctors than by a street dealers. The reasons are obvious; the addict would be less likely to ingest substances of unknown quality and dose (which would mean he'd be less likely to die), and he would be paying pharmacy prices for his drugs (which are far, far, lower than street prices -- we're talking fifty cents for a pill that with a street value of fifty dollars.)
Obviously, the judge who sentenced Dr. Schneider and his wife felt very differently, for he sentenced him to 30 years and his wife to 33 years in prison. It is worth bearing in mind that because of the way the system works, if a doctor prescribes for an addict ("improper" prescribing) this activates a legal chain of potential federal crimes:
Prescribing painkillers becomes drug trafficking, applying for insurance reimbursement becomes fraud, making bank deposits becomes money laundering, and working with people at the office becomes conspiracy.I have serious problems with the above, just as I have serious problems with many of the reasons the judge gave for the sentence. But there's one in particular that just struck me as outrageous. The judge openly admitted that the sentence was intended as a deterrent against the activist group that had tried to help Dr. Schneider.
No, seriously. The following -- from U.S. District Judge Monti Belot's "Sentencing Decision" -- is what passes for legal thinking today:
There is one aspect of deterrence I hope this case achieves and that is to curtail or stop the activities of the Bozo the Clown outfit known as the Pain Control Network, a ship of fools if there ever was one.So, because the Pain Control Network tried to help an accused criminal defendant, the judge is holding that against the doctor, and wants to send a signal to activists that if they dare help accused doctors in these situations, it will adversely affect their sentences. His brazenly admission of the reason for the sentence is like saying this:
"Your sentence is intended to send a message to your supporters!"
Bear in mind that what Dr. Schneider's supporters did was standard First Amendment fare. They agitated against what they perceived as an injustice. The right to do that goes to the heart of our freedom. (The right to freely petition for redress of grievances is not only in the First Amendment, it is as old as the Magna Carta.) And by sentencing Dr. Schneider, this judge admitted that his goal was to to get back at them; i.e. to retaliate against those who believed that the case was an injustice. I don't care what anyone thinks of the drug laws, or the doctor, or his supporters, to impose a criminal sentence with a view towards deterring the First Amendment rights of that person's supporters is an outrage by any standard, and I think it evinces such bias and hostility that it requires reversing the doctor's conviction.
The sentence, of course, is just one wrinkle of one of the scariest legal cases I have ever seen. It ramps up the drug war to an entirely new level by unprecedented use of the criminal justice system to stifle dissent. Not only did the government attempt to criminally prosecute the activists, but after that failed, the prosecutor attempted to use the grand jury system against the activist group, in the process bankrupting Siobhan Reynolds. But even that wasn't enough. The latest wrinkle is that they sealed the records in the case against Reynolds, so this has become what Jacob Sullum calls "A First Amendment Case You Can't Talk About":
The case has been sealed because it grew out of a grand jury investigation of Reynolds that Treadway instigated because she was irritated by Reynolds' advocacy on behalf of the Schneiders. Supposedly looking for evidence of obstruction of justice, Treadway obtained subpoenas that demanded, among other things, communications between Reynolds and the Schneiders, a PRN-produced video on the conflict between drug control and pain control, and documents related to a PRN-sponsored billboard in Wichita that proclaimed, "Dr. Schneider never killed anyone." This investigation followed Treadway's unsuccessful attempt to obtain a gag order prohibiting Reynolds from talking about the Schneiders' case.Couple that with the admission by the judge that the sentence itself was also a vendetta against the critic, and I'm surprised there isn't more public outrage.
I mean really. If a vindictive federal prosecutor can do this to Siobhan Reynolds for supporting Dr. Schneider, then what's to stop them from going after his supporters in the blogosphere, like yours truly? What's to stop a judge from using Google to determine the level of online support for an accused defendant, and then using his sentencing powers to deter their free speech?
Last week, I asked a lawyer from a libertarian group for a copy of a brief it had filed in a First Amendment case. Sounding frustrated and incredulous, he said a federal appeals court had sealed the brief and forbidden its distribution.From the Washington Post:
"I think it is rare you see a case that entire dockets through the appellate process are subject to this kind of secrecy," said Corn-Revere, Reynolds' attorney. "And that, of course, is one of the issues we are asking the court to address."Glenn Reynolds called the situation "Kafkaesque," and added,
Good grief. This is disgraceful. (Note: Siobhan Reynolds is no relation).I guess Glenn is lucky he's not related to Ms. Reynolds, or else he too might find himself served with a subpoena for obstructing justice, be cited as an additional aggravating factor justifying Dr. Schneider's long sentence, and find all Instapundit posts on the subject judicially sealed.
This case represents the worst of government excesses in federal overcriminalization and overzealous prosecution. The federal government continues to treat doctors as drug dealers, as Ronald Libby points out in this Cato policy analysis. The grand jury, intended as a check on prosecutorial power, instead acts as an inquisitorial bulldozer that enhances the power of the government. My colleague Tim Lynch examined this phenomenon in his policy analysis A Grand Facade: How the Grand Jury Was Captured by Government.Well if the patients killed themselves, obviously that was the doctor's fault too! For addicting them!
Yes, our government thinks that way, and they have ninja bureaucrats who run around treating doctors like terrorists:
Ninja bureaucrats continue to treat doctors that prescribe painkillers as tactical threats on par with terrorist safehouses. When the DEA raided the office of Dr. Cecil Knox in 2002, one clinic worker "thought she and her husband, who was helping her in the office that day, would be shot. She looked on in horror as an agent put a gun to his head and ordered, 'Get off the phone! Now!'" Radley Balko chronicles this unfortunate trend in Overkill: The Rise of Paramilitary Police Raids in America, and the Raidmap has a separate category for unnecessary raids on doctors and sick people (sorted at the link).Out of curiosity, I clicked on that last link, and found this:
Police pound on the door of 41-year-old Robert Filgo, a medical marijuana patient who has a doctor's perscription and a certificate from the city of Oakland to grow, possess, and smoke marijuana.I guess the poor guy's mistake was in going to a doctor. As I have explained, the Drug War's subsidiary war on doctors necessarily means war against patient privacy. This touches on yet another irony: if you buy drugs off the street, the government has to get a search warrant to look for evidence, but if you get prescription meds through a doctor, the government can rifle through your once-private records at any time.
Factor in Obamacare, and there will soon be no medical privacy at all. I guess the goal is to force people who want or need drugs to buy only on the underground market, as Rush Limbaugh was forced to. (I repeatedly defended Rush at the time, and now I'm wondering why I wasn't investigated for obstruction of justice.)
Hell, even in the darkest days of Prohibition, doctors were allowed to write medical prescriptions for booze -- using whatever medical standards they might deem appropriate. And that was allowed to go on, despite claims that medical alcohol "made a mockery of Prohibition" and the AMA declared its "use in therapeutics ... has no scientific value." (Contrary to what we now know to be true....)
Today the doctor who prescribed booze would be charged with fraud, money-laundering, and conspiracy, and SWAT teams would break down the doors of his "clinic"! And his defenders would find themselves under investigation for "obstruction of justice," with their First Amendment rights being silenced by the courts.
posted by Eric on 11.07.10 at 02:24 PM
Search the Site
Classics To Go
See more archives here
Old (Blogspot) archives
A knee sock jihad might be premature at this time
People Are Not Rational
No Biorobots For Japan
The Thorium Solution
Radiation Detector From A Digital Camera
This war of attrition is driving me bananas!
Attacking Christianity is one thing, but must they butcher geometry?
Are there trashy distinctions in freedom of expression?
Please Don't Let Me Be Misunderstood