"SCOTUS Rejects Negligence Standard in 'Pill Mill' Cases"

From T. Markus Funk (a legal scholar, former prosecutor, and my erstwhile coauthor) at Sean Solis, both at Perkins Coie, in Bloomberg Law:

The US Supreme Court issued a significant decision in its Controlled Substances Act (CSA) jurisprudence as applied to the nation's opioid epidemic. At issue in Ruan v. United States was the requisite intent the government must prove to convict a physician under the CSA for the unlawful distribution of controlled substances.

In a significant win for the defense, specifically, and those concerned about imposing criminal liability based on mere negligence, more generally, the Supreme Court held that "[a]fter a [physician] produces evidence that he or she was authorized to dispense controlled substances" (a given in almost every case), "the Government must prove beyond a reasonable doubt that the defendant knew that he or she was acting in an unauthorized manner, or intended to do so."

In reaching this holding, the high court unanimously rejected the government's position. In its briefing, the government argued that it should be allowed to convict a physician merely by showing that he or she acted "objectively unreasonably" in misprescribing opioids. In other words, under the government's requested standard, federal prosecutors would de facto only have to show that a prescribing physician acted with negligence. (Notably, this scienter requirement would be lower than the standard necessary to convict a drug trafficker for distributing heroin or cocaine—namely, "knowingly or intentionally.") …

Comments

[DaivdBehar]

100000 fentanyl deaths are 100% the fault of the lawyer profession. Very few pain patients die of overdose, unless they are addicts. At this pace, crime may end soon, and the unemployment will once again visit the lawyer profession.

[DaivdBehar]

The know nothing intimidated doctors. The subjective pain scale was made the fifth vital sign. So addicts rated their pain high, and intimidated doctors had to prescribe opiates. If not federal payers and accrediting agencies would crush them.

So now, with Chinese fentanyl causing all overdose deaths, the know nothing lawyer is again intimidating doctors. Doctors can no longer prescribe opiates without being threatened by the government. So legitimate pain patients are left in agony and bed ridden when intimidated doctors say, Tylenol is good, again afraid of the DEA thug.

[DaivdBehar]

I would like to see an organized patient movement, like an AARP for health. It should be big to counter the sizes of insurance companies, and of government bureaucracies. It should also have a direct action arm. It should bust the knees of know nothing regulators, then say, Tylenol is good.

[Longtobefree]

It's not even negligence, it is just disagreeing with the government hacks at the CDC / FDA.

[Sarcastr0]

I'm unfamiliar with this particular case, but from this comment...You think US policy on opioids is too lax?

[Brett Bellmore]

Not sure where you got that: The doctors they were going after as 'pill mills' presumably were themselves more 'lax' than the US policy. You wouldn't dub somebody who was restrictive about handing out such prescriptions a "pill mill".

So, precisely backwards.

[Longtobefree]

I am saying that a physician should have first say in the dispensing of prescription medications, not some flunky in a federal government chair.

[bevis the lumberjack]

I’m on long term pain medicine related to a chronic condition, and we’ve used the drug war ti make life much more difficult for pain patients and their doctors. And yes I’m taking opioids. The doctors were cautious at first although they’ve relaxed now that they’ve observed that I’m not abusing.

Only 30 days at a time. Sometimes even refilling on the 29th day is denied if the pharmacist decides you should wait a few more days. If you’re traveling across the time that your prescription rolls over good luck getting any before you leave. And be very careful not to have fumble fingers and spill some down the drain.

I’ve talked to people who are in worse pain than me and are having trouble within the rules. We’ve sacrificed the comfort on people in chronic pain to fight the drug war.

[Sarcastr0]

I think that's fair, and I've heard that before.

But that's not the same as 'just disagreeing with the government hacks at the CDC / FDA.'

[FivebySixThree]

don't feel too special, they harass diabetics nearly as much with limits on when they can get their refills and other supplies, how many they are permitted and to top it off proving they are still in need.

[Brett Bellmore]

I think they must do that will all maintenance drugs, I'm getting regular T shots, (My production shut down after prostate cancer, which is pretty common.) and they don't let me get more than 2 shots ahead in terms of stock at home. I guess they think I'll sell them to a body builder or some such.

[RC]

Heck, I get allergy medicine with pseudoephedrine in it (to prevent the ongoing sinus infections I used to suffer), and thanks to the federal government's anti-meth law, I can only get a certain amount at a time & have to show ID so my allergy medicine purchases can be tracked in a federal database. And tough cookies if I run out on a Sunday & the only 24-hour pharmacy in town is all out.

[HumanoidAnderoid.]

On the other hand, the first time I've ever had wisdom tooth pulled out, the dentist wrote me 30 vicodine pills on the spot. This is an issue that cries for a balance, though I admit it's really hard to decide how to reach it.

[Noscitur a sociis]

Notably, this scienter requirement would be lower than the standard necessary to convict a drug trafficker for distributing heroin or cocaine—namely, "knowingly or intentionally."

I don't care enough about this issue to have developed an opinion about whether the Supreme Court was right or not, but the above is not true: even under the government's construction, they would have to prove the exact same thing for the physician and the drug trafficker: that they knowingly and intentionally distributed the controlled substance.

[Brett Bellmore]

No, not really. Because the doctor is professionally entitled to "knowingly and intentionally distribute the controlled substance".

Demonstrating that of somebody who isn't legally entitled to do it proves a crime. Demonstrating it of somebody who IS legally entitled to do it proves nothing criminal.

The thing that made it a crime was the supposed negligence, and demonstrating THAT was what was subject to too low of a burden of proof.

[Bored Lawyer]

You are correct, with one exception. The statute itself makes an exception:
"Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—
(1)to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance."

A federal regulation provides:
“to be effective,” a prescription “must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 CFR §1306.04(a).

All of the courtts involved assumed that a prescription that meets that regulation is "authorized" under the statute, and hence not a crime under the US Code.

The issue was, what mens rea does the doctor have to have with regards to whether the prescription is "authorized."

The Govt. said, negligence. SCOTUS said, no, it has to be "knowingly or intentionally."

Every doctor that prescribes any medicine knows that he is causing it to be distributed. That's the whole point of a prescription. The issue is whether he knows that it's illegal or "authorized." The govt. wanted a lower standard, SCOTUS nixed that.

The cocaine dealer knows what he is dealing is illegal. The Dr. doesn't necessarily know that.

[Noscitur a sociis]

The cocaine dealer knows what he is dealing is illegal.

I'm sure that's usually true, but it's not something the government has to prove. Everyone agrees that when a defendant produces evidence that the distribution was authorized, the prosecution has to prove something in addition to what they'd have to prove for a "drug trafficker"—the issue is what that additional proof entails.

[Bored Lawyer]

Because the law says that cocaine is always illegal. So there is no need to prove anything.

In the case of some drugs, however, they are sometimes legal, and sometimes not. The statute itseld says so. As you say, if the defendant says it was "authorized," the govt. is going to have to prove it wasn't.

What SCOTUS said here is that (a) there is a general presumption that criminal statutes require knowing conduct and (b) here where knowing or intentional was used, that will be interpreted to include all the elements, including the authorized issue.

Look at pp. 5-6 of the opinion. https://www.supremecourt.gov/opinions/21pdf/20-1410_1an2.pdf

This one may well have impact on interpretation of other criminal statutes.

Frankly, it's only fair, IMO. Physicians are allowed to prescribed controlled substances under some circumstances. If you are going to go after doctors with a criminal charge, you better have a high mens rea to put him on the criminal side of the line.

[David Nieporent]

Because the law says that cocaine is always illegal. So there is no need to prove anything.

There's the need to prove he knew it was cocaine.

Also, you're mistaken; cocaine is Schedule II, which means it's not always illegal, and can be prescribed by a doctor under some circumstances.

[ReaderY]

The decision was umanimous, and I don’t see how it could have been otherwise. As the opinion says, when the defendant is authorized to distribute controlled substances, the element that distinguishes lawful from criminal conduct is distribution in an unauthorized manner. And what could the scienter requirement in the statue mean if it didn’t refer to scienter of the essential element that makes otherwise lawful conduct criminal?

[Noscitur a sociis]

The decision was unanimous in that all of the justices agreed that the decision below should be vacated. It was decidedly non-unanimous on what whether lack of authorization is an element of the offense and what the government needs to prove to defeat an authorization defense.

[Rev. Arthur L. Kirkland]

Still nothing about election subversion, John Eastman, insurrection, Jeffrey Clark, etc. at a white, male, right-wing blog . . . but anything about guns seems to get an antisocial, disaffected misfit quite excited!

[Seamus]

Grownups are talking here, Artie. Go outside and play.