Part two of my three-part series for Huffington Post is now online.
It takes a skeptical look at the new overdose/abuse figures the federal government is touting, and points out that the problems we’re seeing today with pill mills and strip-mall clinics are the result of overly protective drug control policies. And they’re the same sorts of policies opioid critics are now saying need to be expanded and strengthened in response to the latest panic.
Just how much the federal government prioritize drug control over patient care? This much:
Federal authorities have expanded their crackdown on painkiller abuse, charging a major health care company and two CVS pharmacies in Florida with violating their licenses to sell powerful pain pills and other drugs.
The Drug Enforcement Administration linked Cardinal Health to unusually high shipments of the controlled drugs to four pharmacies.
On Friday, the DEA suspended Cardinal’s controlled substances license at its Lakeland, Fla., distribution center, which services 2,500 pharmacies in Florida, Georgia and South Carolina . . .
In its suspension order, the DEA alleges that Cardinal knew or should have known that the four retail pharmacies had purchased far more drugs than it needed to fulfill legitimate prescriptions.
The company called the DEA action a “drastic overreaction” that would disrupt delivery of critical medications to hospitals and pharmacies.
A judge has since temporarily stopped the suspension, pending a hearing.
But think about what the DEA is trying to do, here. They’re attempting to interrupt the treatment of thousands of patients served by 2,500 pharmacies because the wholesaler that supplies controlled drugs to those pharmacies is accused of inadequately policing the actions of four of those pharmacies. And the patients that would have been affected here aren’t just pain patients.
But the effect of actions like this going forward may be worse than the actions themselves. The DEA has forcibly deputized every actor in the manufacture and distribution of these drugs to police everyone else. And they risk severe civil, even criminal, repercussions if the agency determines they’ve done so with insufficient vigor. If you want to survive, you always err on the side of control.
So if you’re a wholesaler, and you have the tiniest of suspicions that a pharmacy is dispensing more of a controlled drug than the DEA thinks it should, you cut off supply, or you risk losing your license. If you’re a pharmacy, and you have the faintest hunch that a patient may not be legitimately in pain, or is getting more pain medication than he needs, or that a particular doctor is writing more prescriptions for a controlled drug than the DEA thinks he ought to, you refuse to fill the prescriptions, at risk of both losing your livelihood as a pharmacist, but also possibly your freedom. If you own a pharmacy, and you suspect one of your pharmacists is insufficiently suspicious of pain patients and pain prescriptions, you fire him, or you risk losing your business. And finally, if you’re a doctor, and you suspect any of your patients have a substance abuse problem, or that they aren’t in as much pain as they claim, you turn them down. Actually, it’s worse than that. It doesn’t really matter what you think as a doctor. What matters is what the DEA thinks of the decisions you make. So your job is not to administer the treatment you believe is appropriate, your job is to anticipate what treatment the DEA will think is appropriate, and deviate from that treatment at your peril.
At each step in the process, the incentives are structured to induce fear, suspicion, and mistrust of the other players in this mess. The interests of patients are way, way down in the ordering of priorities.
The problem is that it’s difficult to isolated a particular drug as cause of death. So the rise in opioid-related overdose deaths that the CDC and numerous media outlets have been screaming about for the last few months could be the result of lots of people ODing on painkillers, or it could merely be that because more people are taking painkillers, more people are likely to have painkillers in their systems when they die. Hence, the use of the term “opioid-related” to describe these deaths. That allows panic-sowing without the need to establish any causal connection. (It’s similar to the way the government calculates “marijuana-related emergency room incidents.)
But the problem gets more urgent when we start using these diagnoses in court, as the government has done in the trials of doctors accused of contributing to a patient’s overdose death.
It’s here that the opinions of one of Szalavitz’s sources seem particularly troubling.
Given the state of the science, then, should it be used in court? Ed Cheng, a professor of law at Brooklyn Law School and expert on scientific testimony, says, yes, noting that more research is still needed. “If we were to require studies and statistical assessment on every assertion, almost nothing would be able to be used in court. My view on this is that the question here is not throwing the baby out with the bathwater,” says Cheng. “It’s clear that the forensic sciences do not have as much of an empirical basis as we would like them to have. The question becomes how do we motivate them sufficiently to come up with the empirical basis that we want?”
In the Schneider case, which entered jury deliberations on Wednesday, the defense team sought and failed to prevent the jury from hearing testimony that it believed did not have sufficient scientific foundations. But according to Cheng, it may be preferable to let the jury hear both sides of the scientific dispute and make up their own minds. “I myself have floated between the poles on this,” he says. “I’m currently more on the ‘Let the jury hear it’ side. I’m not convinced that good science and bad science is always cut and dried.”
“Let the jury hear it” sounds great on its face. But there’s more to it than that. If the science linking a particular drug to a particular overdose isn’t established–if the scientific community is split over whether you can make that connection–then the jury shouldn’t hear it. (If nothing else, that would seem to establish reasonable doubt.)
Yes, we do have an adversarial judicial system. But lay juries aren’t trained scientists. Most people don’t know what to look for when evaluating the veracity of some science-based claim. Get two scientific-sounding witnesses pitching the jury competing or mutually-exclusive theories, and the winner will more often be not who advocated the best science, but who was a better expert witness. Or more bluntly, who was a better salesman.
We’ve seen this over and over again with bite mark testimony. Frauds like Michael West have sold crap science to juries for years, sometimes unopposed, but often opposed by more credible experts. Even now, with a solid consensus in the forensics community that you can’t “match” bite marks in skin to one person to the exclusion of everyone else, we still see appeals courts shoot down post-conviction petitions on the grounds that the defense already challenged the state’s expert at trial, and the jury found the prosecution’s witness more convincing. It doesn’t seem to matter that we now know the prosecution’s witness was spewing pseudo-science hokum.
I think you could make a strong case that West was able to persuade juries because he didn’t sound scientific. I’ve read more than a few trial transcripts where West and the prosecutor would actually use an opposing expert’s credentials against him, contrasting him as a fancy out-of-town hired gun with a bunch of letters after his name with West, the local dentist just trying to do the right thing, helping put bad guys away with intuition, common sense, and some self-taught expertise. The scary thing is that when you see West in action, he sounds convincing, even when you know he’s a fraud.
Of course, West is only one example (although he is one of the most egregious). I don’t know the best way to determine what science has reached enough of a consensus to be used in a courtroom, but leaving the decision to individual juries on a case-by-case basis seems like a bad idea. In the federal courts, and in much of the country, challenges to scientific evidence are currently resolved by the judge in what’s called a Daubert hearing. From my understanding, while those hearings have done a decent (but far from perfect) job keeping junk science out of civil cases, the process has been less successful at keeping it out of criminal cases.
Skeptical as I am of blue ribbon commissions, this may be one area where we’re best off having an established, accredited panel of specialists set policy.
Gene Healy: the five worst op-eds of 2011. His delightfully Friedmanesque closer: “And so, my friends, we roll up our sleeves and limp forward, hunkered down to face what 2012 holds, our boats borne back ceaselessly into the past, yet always, always, twirling toward freedom.”
Alternet publishes article calling for government monitoring of doctors and their pain patients, a crackdown on prescription painkillers, and generally expanding the drug war, all because . . . corporations are evil. And Florida’s governor loves the Tea Party. Or something.
I met Reynolds several years ago when I attended a forum on Capitol Hill on the under-treatment of pain. Her story about her husband’s chronic pain was so heartbreaking it moved me to take an interest in the issue. I eventually commissioned and edited a paper on the DEA and pain treatment while I was working for Cato.
Reynolds was fierce and tireless. She ran her advocacy group the Pain Relief Network on a thin budget, and often used her own money to travel to towns and cities where she felt prosecutors were unfairly targeting a doctor. Then she would fight back. And sometimes she’d win. The DEA and the federal prosecutors she fought weren’t really accustomed to that. They were accustomed to holding self-promoting press conferences, where they’d hold up big bags of pills, thus winning glowing write-ups from clueless reporters. Reynolds put those bags of pills into context. She encouraged pain patients whose lives these doctors made better to speak up and speak out. And she educated journalists.
There aren’t very many people who can claim that they personally changed the public debate about an issue. Reynolds could. Before her crusade, no one was really talking about the under-treatment of pain. The media was still wrapped up in scare stories about “accidental addiction” to prescription painkillers and telling dramatic (and sometimes false) tales about patients whose lazy doctors got them hooked on Oxycontin. Reynolds toured the country to point out that, in fact, the real problem is that pain patients are suffering, particularly chronic pain patients. And because of the government’s harassment, there are increasingly fewer doctors willing to treat them. After Reynolds, the major newsweeklies, the New York Times, and a number of other national media outlets began asking if the DEA’s war on pain doctors had gone too far.
Reynolds’ passion stemmed from watching her ex-husband agonize, and later her belief that his death was due to his inability to get treatment. She feared her son would contract the same condition, and face the same obstacles. What infuriated her was that this was never a problem of not knowing what relieves chronic pain. This wasn’t about the need for more research. Her husband had found relief in high-dose opioid therapy. The problem was that in its ceaseless efforts to stop people from getting high, the government had blocked that relief, imprisoned the doctor who administered it, and thus condemned her husband to suffer. (Watch The Chilling Effect, the movie Reynolds produced about her ex-husband’s fight here.)
Reynolds was admirably persistent. I often thought she was often a bit too idealistic, or at least that she set her goals too high. She told me once that she wouldn’t consider her work done until the Supreme Court declared the Controlled Substances Act unconstitutional. That’s an admirable goal, if not a particularly practical one. She often frustrated efforts to build a coalition on the issue because she’d grown weary of medical organizations and academics who, while concerned about the issue, she thought were too cowardly to take a more aggressive stand.
But Reynolds did begin to win her battles. She deserves a good deal of the credit for getting Richard Paey out of prison. She got some sentences overturned, and hooked accused doctors up with attorneys who know the issue. Which let to some acquittals.
Of course, the government doesn’t like a rabble rouser. It’s especially wary of rabble rousers who start to accumulate some victories. And so as Reynolds’ advocacy began to move the ball and get real results, the government hit back. When Reynolds began a campaign on behalf of Kansas physician Stephen Schneider, who had been indicted for over-prescribing painkillers, Assistant U.S. Attorney Tanya Treadway launched a blatantly vindictive attack on Reynolds’ right to free speech. Treadway opened a criminal investigation into Reynolds and her organization, attempting to paint Reynolds’ advocacy as obstruction of justice. Treadway then issued a sweeping subpoena for all email correspondence, phone records, and other documents that, had Reynolds complied, would have meant the end of her organization. Treadway wanted records of Reynolds’ private conversations with attorneys, doctors, and pain patients and their families. It was unconscionable. The government was demanding that she turn over all records of her conversations with suffering patients. (Some of whom undoubtedly sought out extra-legal ways to relieve their pain, since the government had made it impossible for them to find legal relief.)
So Reynolds fought the subpoena, all the way to the U.S. Supreme Court. And she lost. Not only did she lose, but the government, with compliance from the federal courts, was able to keep the entire fight sealed. The briefs for the case are secret. The judges’ rulings are secret. Reynolds was barred from sharing her own briefs with the press. Perversely, Treadway had used the very grand jury secrecy intended to protect Reynolds as a gag to censor her. The case was a startling example not only of how far a prosecutor will go to tear down a critic, but of how much power they have to do so.
The sad thing is that it worked. The Pain Relief Network went under. Reynolds also lost a good deal of her own money. She was never charged with any crime. But that was never the point. It was a transparent and malicious effort to neutralize a pestering critic. And it was successful. (I wrote a piece for Slate on Treadway’s vendetta against Reynolds.) Despite all that, the last time I spoke with Reynolds she working on plans to start a new advocacy group for pain patients.
Reynolds was an unwearying, unwavering activist for personal freedom. She not only became a martyr for the rights of pain patients, but also for free expression and political dissent.
And she died fighting.
Rest in peace.
UPDATE: More tributes to Reynolds from Jacob Sullum, David Borden, and Robert Higgs. Higgs quotes from an email he sent to Reynolds two days before her death:
You have had no way to have known, but you have been one of my heroes (and I have very few) ever since I learned, more or less by chance, about your efforts on behalf of people denied pain relief by the whole congeries of sadistic government laws, functionaries, and activities aimed at keeping them in pain. I have the greatest respect for you and the few others who have the courage to do something concrete to fight the power.
Please accept my very best wishes for a happy Christmas and for better days to come. And please know, too, of the great esteem in which I hold you.
UPDATE II: Richard Paey’s wife Linda left this in the comments:
Siobhan, an amazing force focused on defending the rights of people in pain and their doctors, she was relentless in this pursuit. My husband and I owe her a debt of gratitude, one that we could never repay. Siobhan was responsible for moving the nation to support the release of my husband, Richard Paey from a Florida prison. Her impact on pain patients and the issue of undertreatment of pain is her legacy. We will all miss her loud and strong voice. My heart and my prayers goes out to her son.
The Bernie Fine story keeps getting stranger. His wife apparently had an affair with one of his accusers. Another accuser’s father says he’s lying, and the accuser is himself facing sexual assault charges. Two of the accusers are also step-brothers. None of which means Fine is innocent. It just means we should probably wait a bit longer before assuming he’s guilty.
In this hysterical USA Today piece about infants born addicted to prescription painkillers, Florida Attorney General Pam Bondi says, “I’m scared to death this will become the crack-baby epidemic.”
I agree. I hope this doesn’t turn into an excuse to pass a bunch of dumb laws that will restrict personal freedom and impose draconian sentences on people who commit nonviolent offenses, all in response to a hyped-up, non-existent problem drummed up by the media and drug warriors. The “Oxy baby” narrative has the added potential to further chill the treatment of chronic pain.
It may well be that this is a huge and growing problem. But I don’t find the USA Today piece all that convincing. In 2009, the New York Times looked at recent studies of what has happened to “crack babies.” Turns out, the consensus seems to be that the biggest hurdle they’ve had to overcome is the fact that they’ve been called “crack babies” all their lives.
It’s still legal, for now, to grow your own tobacco in Brooklyn. What’s sad is that New York has imposed the phalanx of restrictions that make an article like this contemplatable. (Yes, I’m pretty sure I just made that word up.)
Jury nullification advocate is indicted in federal court for jury tampering. I have a feeling we’re going to be hearing much, much more about this case in the coming years.
Huge wave of pain clinic raids in Florida. Note that the USA Today couldn’t find room in a very long article to quote even one critic of these crackdowns.
Why liberals should support eminent domain reform. This is a pretty important credibility issue for the left. We aren’t talking about public use, here. If you can’t bring yourself to support laws barring the government from taking land from poor people to give it to rich developers, it’s pretty darned clear that your priority isn’t protecting or advocating for the poor, it’s preserving government power. Or just opposing property rights because you don’t like the people who support them.
[M]any of us know Kim Rotchford and his family. Rotchford is known as the physician who has taken into his care people with chronic pain or addictions for which others may have no good answer. He takes cases that others would choose not to take.
He is also the local physician who has put his time and his expertise into the service of our homeless and dispossessed through the founding and volunteer staffing of the JC MASH free medical clinic. Other docs help out, but everyone knows that clinic is the product of Rotchford’s calling to help the down and out.
We know that Rotchford and his family have been good citizens and good volunteers in this community for many years. Without pre-judging the investigative findings, we believe that Rotchford deserves the benefit of doubt from the justice system and from us as he proceeds into the legal ordeal ahead.
Unfortunately, taking cases that others choose not to take is often enough in itself to get yourself investigated. And of course all of Rotchford’s pain patients are now out of luck.
Those of you who think we need more government healthcare might keep in mind that when the feds can’t prove a case for drug distributionthey often fall back on Medicare fraud, which appears to be the impetus for this investigation. That is, they argue that billing Medicare for pain scripts DEA cops don’t think patients need becomes a criminal offense. That kind of intimidation will only get worse with more government oversight.
Let me pause and offer you a dark confession. I miss the grand jury. When I want documents or evidence now as a criminal defense attorney, I have to ask the government for it, wait for them to laugh and refuse, and then run to court and try to convince a judge to order the government to abide by its obligations. As a civil litigant, I have to write long, complicated demands for documents and information, wait a month for a response, get a response refusing most of what I asked for, engage in a letter-writing campaign, and eventually go to court seeking an order making the other side give me the documents, often months later.
Oh, to use the grand jury again! As a federal prosecutor, I could just issue grand jury subpoenas. I could refuse extensions at my whim. I could ask for whatever the hell I wanted based on the most remote suspicion that it might be relevant to a federal investigation. I could demand compliance with confidence, knowing that it is extraordinarily rare for a federal court to grant a target’s motion to quash or limit a subpoena. And I could do all of this under the ridiculous fiction that I was acting on behalf of a grand jury so long as, occasionally, I stepped into the grand jury room and had a federal agent testify briefly that “Hey, we’ve got an investigation going into [vague subject], we issued subpoenas in your name, we got these documents, the investigation continues.” 99% of the time, the grand jurors wouldn’t look up from their newspapers, hoping they’d get let out early that day. Were the grand jurors a check on government abuse of the subpoena power? Don’t make me laugh until I throw up.
[V]ery sad to be announcing the closure of Pain Relief Network. The government and the federal judiciary have succeeded in silencing the lone organized effort on behalf of tens of millions of American, vets, children, cancer patients, people born with congenital painful conditions who cannot get their pain controlled. Power wins. Suffering humanity, decency itself, and the rule of law lose.
Tanya Treadway is now trying to prevent Kansas pain doctor Linda Schneider from getting a public defender for her appeal. Remember, Treadway tried to prevent the couple from getting a public defender during their trial, too. The problem is, given that nearly all of their assets are subject to forfeiture, it’s hard to find attorneys willing to take these cases.
Earmark in new spending bill provides $600,000 to digitize Grateful Dead paraphernalia. Also note that former House Speaker Dennis Hastert gets $440,000 for a private office. More on that scam here.
This case ought to outrage anyone who claims to give a damn about the First Amendment. It’s hard to think of a more dire example of government censorship than for it to (a) use the criminal justice system to harass someone who speaks out against what she believes to be government abuses, and then (b) use the same system to silence her and her advocates from publicly discussing the harassment.
Seems like there’s a parallel here with the state secrets cases. The Obama administration has gone beyond arguing that the initial acts are well within the government’s power. It’s also arguing that the government should have the power to prevent anyone from talking about or knowing about them.
Federal prosecutors in Washington State look to seize assets of online payment service that works with poker sites. Good to Obama’s DOJ has straightened out the priorities of the previous administration.
Quick addendum to yesterday’s post on the federal government’s persecution of Siobhan Reynolds. This is the video AUSA Tonya Treadway subpoenaed, along with a host of other documentation, then tried to have silenced. It’s about an hour long.
Siobhan also noted on my Facebook page that she’d like to hire an assistant, but the fines she faced for defying Treadway’s subpoena depleted her finances. If you’re interested, you can make a contribution here.
I posted here last year on Assistant U.S. Attorney Tonya Treadway’s vendetta against pain patient advocate Siobhan Reynolds. Reynolds’ transgression was to publicly question Treadway’s prosecution of Kansas pain specialist Steven Schneider and his wife.
Treadway, no slouch at playing the media herself, first sought a gag order preventing Reynolds from criticizing the state’s case in public. She then sent federal agents to intimidate the patients speaking out on Schneider’s behalf. When all that failed, she launched a grand jury investigation into Reynolds, demanding Reynolds turn over a mountain of documents related to her advocacy. Treadway then sought, and was granted, an extraordinary seal on any and all documents related to the case. Reynolds isn’t permitted to share documentation from her case with anyone. She had to get permission just to let Reason and the Institute for Justice access the documents so they could submit an amicus brief on her behalf.
Reynolds’ case has now reached the U.S. Supreme Court, and the government is claiming some chilling powers. Here’s my colleague Jacob Sullum:
This level of secrecy, which the Associated Press says “has alarmed First Amendment supporters” who see it as “highly unusual” and “patently wrong,” is clearly not justified by the need to protect the confidentiality of grand jury proceedings. The 10th Circuit decided to seal even the Reason/I.J. amicus brief, which is based entirely on publicly available information. More generally, the gist of the case could have been discussed without revealing grand jury material, as Reynolds’ Supreme Court petition shows. Although the court-ordered redactions make the 10th Circuit’s reasoning as described in the petition hard to follow at times, the details generally can be filled in with information that has been reported in the press (which shows how silly the pretense of secrecy is). Furthermore, one of the main justifications for grand jury secrecy—that it protects innocent people who are investigated but never charged—does not apply in a case like this, where the target of the investigation wants more openness and it’s the government that is trying to hide information. As Corn-Revere argues, such secrecy turns the intended role of the grand jury on its head, making it an instrument of oppression instead of a bulwark against it….
I’d like to show you the Reason/I.J. brief defending Reynolds’ First Amendment rights, but I’m not allowed to!
Bonus points in this case for its ability to attract bipartisan authoritarianism: Treadway is a Bush appointee, and this all got rolling under his watch. But the Obama administration is not only continuing the case against Reynolds, it’s also arguing in favor of keeping the case hidden from public scrutiny. There are no national security implications, here. There are no government informants to protect (I guess we don’t know that for sure, but I can’t imagine why there would be, or why their names could be redacted). This is an obstruction investigation into a woman who has criticized the government for what she feels are wrongful prosecutions. It’s telling that Treadway, a federal prosecutor with a history of promoting the hell out of her cases, doesn’t want to anyone to know about this one.
But let’s recap: Treadway tried to censor Reynolds from criticizing her, Treadway, a federal prosecutor. She then tried to intimidate patients of the doctor Reynolds was advocating for from defending him. She then retaliated against Reynolds with a criminal investigation. And she has now gagged Reynolds and barred the public from knowing anything about that investigation. And thus far, on the latter two actions, the federal courts have backed her up.
Sheriffs in North Carolina want access to state computer records identifying anyone with prescriptions for powerful painkillers and other controlled substances.
The state sheriff’s association pushed the idea Tuesday, saying the move would help them make drug arrests and curb a growing problem of prescription drug abuse…
Sheriffs made their pitch Tuesday to a legislative health care committee looking for ways to confront prescription drug abuse. Local sheriffs said that more people in their counties die of accidental overdoses than from homicides.
For years, sheriffs have been trying to convince legislators that the state’s prescription records should be open to them.
“We can better go after those who are abusing the system,” said Lee County Sheriff Tracy L. Carter.
In addition to the obvious privacy, doctor-patient privilege, and Fourth Amendment concerns, a policy like this is likely to exacerbate the undertreatment of pain. The sheriffs argue that giving them access to the database will help them catch doctors who over-prescribe and patients who shop from doctor to doctor when they’re denied access to painkillers. I’m sure there are examples of both misbehaving doctors and patients. But in the past, law enforcement officials’ definition of over-prescribing has sharply diverged from that of pain professionals. High-dose opiate therapy, a promising new treatment for chronic pain, has basically been cut off at the knees because of high-profile cases in which DEA officials, U.S. attorneys, and state and local law enforcement with no medical training have taken it upon themselves to decide what is and isn’t appropriate treatment.
And the problem is self-perpetuating. As more doctors leave pain management out of fear, those left feel pressure to take on more patients. And the fewer doctors willing to prescribe pain patients the meds they need, the more doctors legitimate patients need to see to find one who will give them proper treatment. Both are consequences of bad policy. And both are then considered by law enforcement to be signs of abuse.
Letting cops go fishing in patient databases for these “red flags” is only going to make it all worse. Sure, they may well find a few unscrupulous doctors, and perhaps some people who are using doctors to feed an addiction. But one thing that’s almost certain to happen is that doctors are going to become even more fearful that every script is going to be scrutinized. Which means fewer of them will be willing to write them. Which means more pain patients are going to suffer, despite the fact that there are drugs available to help them.
The 137-year archive of Popular Scienceis now searchable online. Pretty cool, though it’ll be better when it’s browsable, too.
A handy reminder that ad blockers, ahem, harm your favorite websites.
As a general rule, legislators should always assume that if a law can be interpreted in an overly broad way that will result in injustice, some eager prosecutor will eventually interpret it that way. Even if you’re pro-life, this Utah bill ought to trouble you.
TheAgitator.com
