• Ronald Chapman, LL.M.

Life Sentences for Pain Doctors? Why Federal Sentences for Doctors are so High

Last October a 36 year old doctor, Dr. Joel Smithers, was sentenced to 40 years in federal prison for unlawful distribution of controlled substances. By contrast, George Jung, Johnny Dep's character in the hit Hollywood movie "blow", and notorious Meddillin drug smuggler was released after 20 years in prison. Federal sentences for physicians accused of unlawful prescribing or running a "pill mill" are crushing. So much so that they have deterred even legitimate physicians from prescribing which has left America's pain patients to suffer.

Why are America's Pain Management Physicians Receiving Harsher Sentences than Drug Kingpins?

Doctors Are Charged as Drug Traffickers

Despite the availability of other laws to utilize against physicians who are accused of practicing bad medicine, the Federal Government has unanimously chosen to prosecute physicians under 21 U.S.C. 841(a)(1) - the very same law used to prosecute cocaine and heroin traffickers. In 1975, the Supreme Court in United States v. Moore decided that physicians were not exempt from this law and could be prosecuted as drug dealers if they - used their prescription writing powers as a means of illicit drug dealing. Since that date, federal prosecutors have engaged in a combined effort to expand weaken the proof required to show that a physician was acting as a common drug dealer. In 1975 a physician would have to issue prescriptions completely outside the practice of medicine to be convicted. Today, the DEA, FBI, and DOJ target and prosecute physicians for engaging in the practice of medicine in a way that the government finds disagreeable.

Doctors Are Sentenced by Drug Weight

Doctors are sentenced the same as traditional drug traffickers - by weight of controlled substance distributed. The federal system uses sentencing guidelines to determine the appropriate range of sentence for someone convicted of a federal offense. The primary factor in determining that range is "drug weight". In order to determine the amount of "weight" a physician prescribes, the number of prescriptions the Government proves were "unlawful" is converted using a drug conversion table.

The problem with the drug conversion table is that it was not created for use against doctors writing prescriptions to patients but rather for drug traffickers moving tightly wrapped kilos of drugs or street level crack dealers handing off drugs. If a doctor has written prescription in a facility that the feds have labeled a "pill mill" and is convicted, federal prosecutors will argue that all of his or her prescriptions should be converted to determine a sentence. The drugs add up quickly and five months of prescribing could very easily equate to a life sentence.

Attorneys Do Not Effectively Challenge Drug Weight

Another issue is that defense attorneys do not sufficiently challenge the Government's drug weight calculations. All too often, physician defendants take a plea to a drug weight without close examination of whether each prescription was actually issued for a non-medical purpose. Prior to accepting a plea both the attorney and the defendant should review the records of each patient included in the drug weight calculation and determine if an argument as to the medical need of the prescription can be made. If there is evidence to support a medical need, this should be argued to either the prosecutor or the judge to reduce the potential sentence.

Federal sentences for physicians are high, and as the "opioid epidemic" continues to stigmatize doctors in the eyes of prosecutors, judges, and the public relief will only come in the form of individual advocacy on behalf of each physician charged.

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