Dr. Bernard Rottschaefer, the Pittsburgh physician convicted under highly questionable circumstances of illegally prescribing painkillers was resentenced last week.

The new sentence isn’t much better — 5 years in prison for the 64-year-old man. In issuing the new sentence, the judge apparently cited many of the accusations against Rottschaefer, including the drugs-for-sex charge, that have since been disproved. The government has continually moved the goalposts in this case. When, post-trial, the state’s star witness admitted in letters to her boyfriend that she had lied in her testimony about trading oral sex for Oxy scripts, the state insisted that its case was never about drugs for sex (the U.S. attorney’s office’s press conference and news releases to the contrary notwithstanding), but about prescribing painkillers outside the course of normal medical treatment.

Even accepting the premise that drug cops — not doctors — should be determining what is and isn’t “beyond the course of normal medical treatment,” and allowing for the fact that the government has given doctors no firm guidelines on what that standard actually means, even conceding all of that, Rottschaefer shouldn’t have been convicted.

The state’s medical expert, for example, didn’t know some pretty fundamental facts about prescription painkillers (he didn’t know, for example, that scripts for most painkillers can’t be post-dated). He also admitted he hadn’t reviewed the entire medical histories of the patients the state called to testify. Nevertheless, he felt comfortable testifying (in exchange for $12,000) that Rottschaefer was guilty of criminally overprescribing painkillers.

An actual pain specialist who has since reviewed the entire histories of Rottschaefer’s patients has determined that the scripts Dr. Rottschaefer wrote were appropriate. Their prior histories were reason enough, without the need for additional, repetitive testing (Rottschaefer had been seeing some of the women for many years). Moreover, in the subsequent civil suits against Rottschaefer, the doctor’s attorneys have found that the state’s witnesses against him did in fact have conditions that would require pain medication.

In short, since the trial, the state’s case against Rottschaefer has fallen to pieces.

But the appeals courts don’t seem to be all that interested.

Cory Maye has lost his motion for a new trial. The opinion is half-assed and poorly argued. Reads like a guy who had already made up his mind, and didn’t want to be bothered with the damned facts. I can’t believe the same attentive judge I saw at the hearing last December cobbled the shabby thing together.

Oh, and Dr. Bernard Rottschaefer lost his appeal tonight, as well.

With Richard Paey, David Ruttenberg, Maye, and Rottschaefer all getting denied by courts over the last few weeks, you can help but start to wonder what the fuck is wrong with this country.

Think I’ll have a drink and go to bed.

I’ll have more on all of this later.

How very depressing.

The best thing to happen to the New York Times op-ed page in a long time is stepping down:

Whatever they [the Congress] do the next two years, I won’t be here to kick them around. This is my last column on the Op-Ed page. I’ve enjoyed the past couple of years in Washington, but one election cycle is enough. I’m returning full time to the subject and the city closest to my heart: science and New York. I’ll be writing a column and a blog for the Science Times section.

Our loss. Tierney was an eloquent voice for libertarianism, and the only consistent drug war critic writing at any of the major newspapers. The Times’ stable of contributors now ranges from big government liberals like Bob Herbert and Paul Krugman to big government conservatives like David Brooks. Sweet. Real ideological diversity, there.

One of the more disappointing aspects of Tierney’s tenure is the left’s knee-jerk, red-blue reaction to his appointment, basically from day one. Judging solely by the way the lefty blogs reacted to the guy, you’d never know that he regularly criticized the Bush administration, that he attacked Rush Limbaugh’s hypocrisy on prescription painkiller abuse, and that there were in fact a number of issues where the left ought to have been interested in what he was reporting. Instead, he was immediately dismissed as “Saffire’s replacement,” a token conservative to be loathed and scorned with Brooks. Because that’s how it works. Everybody’s either on your side, or they’re the enemy.

(Disclosure, I’ve gotten to know Tierney over the last couple of years, and consider him to be a friend and all-around good guy, in addition to being a terrific writer.)

Here’s hoping the Times finds another libertarian to replace Tierney, and not do what just about every other major paper has done when looking for a bomb-throwing token from the “right” — hire Jonah Goldberg.

A few suggestions for Tierney’s replacement:

My old boss, David Boaz. My new boss, Nick Gillespie. Slate’s Jack Shafer. Reason colleague Jacob Sullum. P.J. O’Rourke. Frequent letter-to-the-editor writer and GMU Economics Chair Don Boudreaux. Red-meat libertarian Jim Bovard. The Chicago Tribune’s Steve Chapman.

I’m sure there are more. These are merely the first few that come to mind.

In the course of ultimately explaining while she’ll be supporting the Democrats come November, Jane Galt writes:

…who does the average American fear more–the FBI or the IRS? The local zoning board, or the NSA? What does he fear more: the ten commandments on the wall of his child’s school, or having the new addition to the house disallowed by the zoning board, the EPA, or the Americans with Disabilities act? On what does he spend more time: preparing his taxes, earning the money to pay for them, and arguing with the various tax authorities about what he owes . . . or checking for roving wiretaps?

Let’s face it: one of the biggest problems civil libertarians are battling in the war against warrantless wiretaps, and so forth, is that 99% of the citizenry (correctly) believes that the government is not planning to use such measures against them. I’m on the side of the civil libertarians, mind you, but I recognize that this is why all the cries about America descending into a dark night of fascism, and Bush being the worst president ever on civil liberties (which even a light perusal of history reveals as silly), are falling on deaf ears.

She may be correct about the “falling on deaf ears” part, but I’d have to disagree with the substance of the claim.

I came to libertarianism from the right. Regular readers know I’ve been migrating leftward the last few years — not because I’m less concerned about expanding government, taxes, or regulation, but because I think the threats to liberty the GOP poses are immeasurably more dire than what the Democrats pose (not to mention that the GOP isn’t exactly blazing trails on the limited government, tax, or deregulation fronts).

We have a government in power now that feels it can spy on us without a warrant, that it can apprehend and detain anyone it wants for any reason at all –also without a warrant — torture them, all while holding them indefinitely without access to a lawyer. This is a government that couldn’t even bring itself to give a definitive “no” when asked if it felt it had the power to assassinate American citizens. Not only that, but many in this government and many of its allies believe they should have the power to arrest and imprison any journalist who dares to write about all of the above. This is also the most secretive administration we’ve ever seen, as well as one that routinely abuses the classification process, classifying politically damaging information while declassifying formerly “sensitive” information when it deems that doing so might score political points.

These things ought to scare the crap out of you. Frankly, if I had to come up with a definition of “tyranny,” it’d be hard to do better than the paragraph above.

The fact that the percentages say I’m unlikely to be subject to any of the abuses outlined above shouldn’t mean that they oughtn’t matter to me. I realize that Galt was making a political point here, not a statement of her personal beliefs. And she may be right that these issues don’t matter to most Americans, precisely because they’re unlikely to be affected by them, but if that’s the case, well, how incredibly sad. I’d also argue that whether you more fear the IRS or the FBI, or the EPA or the DEA , probably depends on your level of income, where you live, and the color of your skin. There’s a sizeable portion of this country that fears law enforcement quite a bit more than they fear regulators. And with good reason.

That said, there are a number of similarly aggressive, police-state-ish tactics undertaken by this administration that do affect a large percentage of Americans across all classes. The enormous, largley-sympoblic hassle we go through at the airport, for example. I happen to know someone on the “watch” list, which means she can’t fly standby, gets extensivel interrogation every time she checks luggage, and generally is treated like a criminal most times she tries to fly. She’s the furthest thing from a terrorist, of course. But she’s been told that though she’s on the “watch” list, they can’t tell her why, nor is there anything she can do to get her name off of it. Sounds like punishment without due process to me.

Then there’s the way the Bush administration’s anti-federalist imposition of its values on the rest of the country affects the sick and dying. All of us will die. We’ll also all watch friends and family get sick and die. Most of the 30 million or so Americans in chronic pain in this country are now denied access to the most promising treatment available — high-dose opiate therapy — because the Bush administration insists on letting drug cops and near-sighted drug warriors dictate medical policy. Throw in the AIDS, cancer, and MS patients (and now, Alzheimer’s too) who needlessly suffer the symptoms of their conditions that could be treated with medical marijuana, and you arrive at a pretty large chunk of the population suffering from this administration’s policies.

Would a Democrat-controlled government be in any better? On some of these issues, probably. Clinton, for example, let the states make their own policies on medical marijuana and assisted suicide. It’s likely that a new Democrat administration would do the same with respect to prescription painkillers. The Hinchey-Rohrabacher medical marijuana bill gets a few more votes with each vote in Congress. A sweeping victory for the Democrats this November would probably move us significantly closer to a majority.

I don’ t know that the Democrats would be any better on security vs. liberty issues. And I’m not really sure if a Democratic Congress could do much about many of these issues — though hearings, oversight, and some effort on Capitol Hill to hold the White House accountable would certainly be a start. And there’s something to be said about letting the governing party know that we won’t stand for its abuses, even if the only other options is, “just as bad.”

In short, I have no confidence that the Democrats will do much better with control of Congress. But the Republicans need to be held accountable. And it’s hard to see how the Democrats could do much worse.

NOTE: A couple of readers have emailed to say that Clinton did in fact oppose state medical marijuana initiatives, and even actively lobbied against them. That’s true. But to my knowledge, once the initiatives passed, he didn’t send federal troops in to shut down clinics, or federal SWAT teams to raid peaceful growing operations operating legally under state law. If there are examples to the contrary, let me know.

On Monday, the U.S. Supreme Court denied Dr. Bernard Rottschaefer’s appeal for a new trial, an appeal based on clear, post-conviction evidence that the prosecution’s star witness lied under oath.

That’s unfortunate, but expected.

A woman named Jennifer Riggle testified in the criminal trial that Dr. Rottschaefer gave her OxyContin and Xanax prescriptions in exchange for oral sex. Her testimony took a hit when, after the trial, when her boyfriend was released from prison, and produced dozens of letters in which Riggle admitted to him that she had made up the oral sex stories and lied under oath in exchange for leniency with respect to her own drug charges. Despite those dozens of letters, the U.S. attorney who prosecuted Rottschaefer — Mary Beth Buchanan — refused to drop or lessen the charges against him, and to date has also refused to pursue perjury charges against her star witness.

But the case isn’t over just yet. The four other women who testified at Dr. Rottschaefer’s trial have since launched civil suits against him, and all of them have given testimony during discovery that directly contradicts their testimony at trial.

The civil trial’s discovery process revealed that one woman was getting from another doctor the same medication Dr. Rottschaefer was convicted of prescribing to her — at several times the dosage Dr. Rottschaefer was prescribing. That doctor was not prosecuted, casting some doubt on the prosecution’s claim that Rottschaefer had no “legitimate medical” rationale to prescribe the medications. Others testified that they did, in fact, have some ailments that would necessitate the scripts Dr. Rotschaefer was writing.

None of this came out during the criminal trial. Taken together, the testimony of these women shows a clear case of doctor shopping and deception, and shows that Dr. Rottschaefer — like so many of the doctors the DEA has brought down — was guilty at worst of being a poor judge of character. Hardly the kind of thing for which you put someone away for 25 years.

It’s also clear that all of these women were facing their own drug charges, charges that were reduced based on their testimony against Dr. Rottschaefer.

One particularly outrageous aspect of these cases is the way HIPAA’s privacy provisions tie the hands of defense attorneys. We’re only now finding out about these women’s histories with other doctors because defense attorneys were prevented by HIPAA from knowing of or viewing their medical records, even when a man’s freedom was at stake. The prosecution was free to make spurious claims to the jury — claims they knew or should have known were inaccurate — but the defense was barred from looking at the very medical records that would have rebutted many those spurious charges.

Of course, is the prosecution knew of potentially exculpatory evidence — that is, their witnesses’ dealings with other doctors — and didn’t disclose it to the defense, Ms. Buchanan’s office might soon be forced to answer some difficult questions about prosecutorial misconduct.

Medical privacy is important, of course. But if the DEA is going to continue to go after these doctors with charges that hinge on the medical histories of some of their witnesses, defendant doctors ought to be able to peruse those histories for evidence that could help proove their innocence.

The case against Dr. Bernard Rottschaefer grows yet more outrageous. Rottschaefer, remember, is the Pennsylvania doctor convicted of trading painkiller prescriptions for oral sex. His conviction was recently upheld, even after the prosecution’s star witness admitted in letters to her boyfriend that she had made up the drugs-for-sex stories in exchange for leniency with respect to her own drug charges.

We’re now learning that there are significant problems with the other witnesses, too. From the Pittsburgh City Paper:

Dr. Bernard Rottschaefer, a Plum physician convicted in 2004 of prescribing powerful narcotics to former patients in exchange for sex, is once again seeking a new trial. This time, he’s relying on evidence from a surprising source: testimony by the patients who got him locked up — and are now suing him in a civil case.

Specifically, some of the witnesses have now testified in their civil case against Rottschaefer that they did indeed have medical ailments that caused them pain, and weren’t engaging in a knowing drugs-for-sex exchange with him.

“The fact that each and every one of the five complaining witnesses has, since Dr. Rottschaefer’s prosecution, given sworn civil deposition testimony that reveals her prosecution testimony to be false and misleading, is extraordinary,” Stutsman’s court motion asserts. “The false testimony went to the heart of the case: whether the prescriptions were issued for medical treatment or as drug dealing.

“The question in this prosecution was not whether the defendant distributed controlled substances, for Dr. Rottschaefer did; it is whether Dr. Rottschaefer distributed the controlled substances in the course of medical practice,” the brief concludes. “If he did, there is no crime. If he abandoned the practice of medicine and acted instead as a mere drug dealer, then the distributions were criminal.”

If you ask me, the most interesting part of the article comes here:

U.S. Attorney Mary Beth Buchanan declined comment on the motion through her spokeswoman.

Buchanan’s a politically ambitious media hound. Previously, she has vigorously defended her persecution of this doctor, even after her star witness confessed to perjury.

Her silence is conspicuous. We’ll see.

Yesterday, the DEA announced that it would allow doctors to write multiple, post-dated painkiller prescriptions for chronic pain patients. This is good news. The prior restrictions were odious, and heartlessly required people suffering from chronic pain to make multiple trips to doctors and pharmacists to get their medication. The problem is worse than it sounds. Because the DEA’s witchhunt has scared physicians away from palliative therapy, many of these patients have to drive several hours to find a doctor who was willing to treat them. Doctors willing to administer the most promising chronic pain treatment — high-dose opioid therapy — are even harder to find.

But yesterday’s decision doesn’t go nearly far enough. And the DEA seems to be trying to use this one concession to show its “reasonableness,” thus heading off criticism over the larger, more important issue — it’s overly aggressive pursuit of doctors.

Here’s what won’t change: The agency will continue to substitute its own judgment for the medical opinions of doctors. It will continue to define some high-dose treatments as off-limits, and it will continue to use malpractice standards, meant for civil litigation, in criminal court. The DEA also still refuses to give doctors a set of guidelines they can follow to guarantee they won’t be prosecuted, giving the agency a great deal of leeway, and leaving doctors who engage in the experimental high-dosage treatments in legal ambiguity. The agency will also continue to deny doctors a “good faith” defense to prosecution.

DEA administrator Karen Tandy, who has a history duplicity on this issue, made some misleading and downright false comments in a USA Today story yesterday on her agency’s change in policy:

The new policy statement does not include a specific list of do’s and don’ts, but the DEA Administrator Karen Tandy says doctors should be able to glean from the listing of prosecutions on the agency’s website what it takes to violate the law.

This is ridiculous. Instead of actually guidelines to see if they’re complying with the law, doctors are instead being instructed to read up on a “rogue’s gallery” of DEA trophies to determine if their own prescription habits are potentially criminal. It would be like the IRS refusing to give any real guidelines on how much money we owe the government, but instead refering us to a list of the “twenty biggest tax cheats of all time” for guidance.

More Tandy:

Out of more than 1 million doctors who are registered with the DEA to prescribe such narcotics, the agency prosecuted 67 last year for prescription abuse. Tandy says the DEA has targeted doctors who have strayed far outside accepted medical practice, including some who have prescribed medically unnecessary drugs for cash or sex, some who have demanded kickbacks, and invented patients or fed their own addictions.

Tandy is hyperbolizing. Included among those she says “have strayed far outside the accepted medical practice” are William Hurwitz and Bernard Rotschaeffer. The case against each of these men is far from conclusive. Pain activists like Siobhan Reynolds and Dr. Frank Fisher regulalry send new examples of doctors prosecuted by the DEA. In a few cases, it looks like the doctors were clearly unethical. In most, the evidence is far from conclusive, and appears to be more attributable to the DEA’s ignorance of how high-dose therapy works, or that its own policies are chasing doctors away from this treatment, causing the few doctors left in the field to have no choice but to see more patients and write more prescriptions.

Tandy’s “67 of one million” statistic is also misleading. The 1 million number is the total number of physicians in any line of practice who are licensed to prescribe narcotics. The number who specialize in pain treatment is far, far lower. And the number willing to engage in high-dose therapy — the only therapy that seems to work on chronic pain — is much lower still. That 67 comes from an already small and dwindling pool of doctors willing to administer this promising line of treatment. Given that the DEA makes a big deal out of each arrest, including holding press conferences and putting out statements to the media, it isn’t difficult to see how each arrest would make it yet more difficult for pain patients to get adequate treatment.

More Tandy:

The DEA investigates doctors “who knowingly and egregiously put drugs into the hands of traffickers and abusers,” Tandy says. “This isn’t just questionable behavior. There is no gray area here.”

There most certainly is. See the case of Dr. William Hurwitz, one of the DEA’s most sought-after and hard-won trophies. An appeals court recently set Dr. Hurwtiz’s conviction aside, finding that the government was wrong to deny Dr. Hurwitz to mount a “good faith” defense against charges that he prescribed painkillers to drug addicts.

More Tandy:

Tandy says she doesn’t want to tell doctors how to treat patients. “The DEA does not belong in the practice of medicine. We want doctors to be able to prescribe drugs when people are in pain. We’re trying to give them a comfort level.”

But if the DEA has its own definition of what is and isn’t “accepted medical practice,” and — worse — won’t tell doctors what that definition is when it comes to prescribing painkillers, leading doctors to err on the side of undertreatment, we havemost certainly entered the realm of drug cops dictating medical practice.

The DEA has taken a lot of heat from pain activists, academics, media critics, and civil libertarians on this issue. Yesterday’s minor shift in policy should by no means be the end of the debate.

For more on this issue, see here and here.

A police shooting in Nebraska:

A Richardson County Sheriff’s deputy has claimed he accidentally shot a Falls City woman during a suspected drug deal between the woman and a nursing home resident earlier this month, Attorney General Jon Bruning said Monday.

Ann Marx, a former employee at the nursing home, Victory Village Retirement Home, died from a single gunshot above her left eye in the Aug. 13 incident.

[...]

Officials have been tight-lipped about the investigation, and Bruning’s disclosures Monday were in defiance of a gag order imposed by Richardson County District Judge Daniel Bryan.

Bruning said Monday he was mystified by the order, especially since a grand jury has yet to be convened in the shooting.

[...]

Deputies, acting on the confidential informant’s tip, staked out the nursing home, Bruning said. At some point that evening, Marx pulled up in her vehicle and was being approached by the resident.

Landis, who had been hiding in nearby bushes, received a transmission from another deputy to, “Go, go, go,” and he approached the vehicle on the driver’s side with his gun drawn.

Bruning said Landis’ weapon discharged after Marx tried to drive off.

Three observations worth keeping in mind while we wait for more details:

1) Note the gag order. Why is that necessary? Anything to do with the fact that the case involves a police officer?

2) We have a 51-year-old woman allegedly buying painkillers from a nursing home patient. Were the tactics the police used really appropriate, given the suspects? Was it necessary to spring from the bushes with guns drawn?

3) Seems like a stretch that the officer’s gun would accidentally go off and score a direct hit on the suspect as she was driving away. Particularly if police procedure here is, as it is in most of the country, for the officer to keep finger off the trigger unless he intends to shoot.

Dr. William Hurwitz will get a new trial, and he’ll be allowed to present a “good faith” defense against the government’s ridiculous drug distribution charges. The ruling isn’t perfect, and Hurwitz isn’t the ideal poster child for the painkiller issue. But the idea of this man spending 25 years behind bars for the “crime” of getting duped by patients is absurd.

Maybe the good vibe will spread to Dr. Bernard Rottschaefer, who’s appeal to the Supreme Court comes up soon.

I’m told that Pennsylvania Gov. Ed Rendell’s wife is a justice on the Third Circuit court that denied Dr. Bill Rottschaefer’s appeal, and in fact is the Rendell who wrote the opinion.

Which means a pardon from the governor is probably unlikely. Which means the 63-year-old man will in all likelihood die in the maximum security prison where he’s about to begin serving time.

The man was convicted on the testimony of five drug addicts, one of whom admitted over and over again in letters to her boyfriend that she was lying in exchange for leniency for the charges against her. Charges of dealing OxyContin, naturally.

I hope voters and journalists in Philadelphia will remember this case when U.S. Attorney Mary Beth Buchanan inevitably runs for political office there.

The Pittsburgh City Paper runs a long-form article on the sad case of Dr. Bernard Rottschaefer.

The piece is excellent. Mary Beth Buchanan doesn’t come out well.

If the Supreme Court balks — as they likely will — perhaps it’s time to start thinking about an appeal to Gov. Rendell.

Last Sunday, the Houston Chronicle ran a fluff piece on DEA administrator Karen Tandy. Among the lowlights:

“I have two teenaged daughters and I’m no different than any other parent - I worry about my kids. They are great kids, but peer pressure can be a big issue.”

Her use of maternal instinct may partly explain why during her 32 months as DEA chief, Tandy has been an unapologetic advocate for tough enforcement of laws against marijuana, a substance critics say is less destructive than heroin or cocaine.

“We have more teens in ( counseling ) for marijuana than for all other drugs combined, including alcohol,” she said recently in her office in the agency’s northern Virginia headquarters.

[...]

Regardless of the occasional critic’s shot, Tandy retains her passion for running the government’s largest anti-drug bureaucracy - the kind of job that can be stressful and emotionally exhausting.

“This job is a calling, not just for me but for all of the 11,000 people in this agency. I have the best job on Earth,” she said.

[...]

In the Justice Department, Tandy was a pioneer in the enforcement of asset forfeiture law - a government tactic used to deprive drug merchants of material gain by seizing planes, boats, ranches and more exotic possessions such as strip clubs and golf courses bought with drug cash.

By 1993, she was running the narcotics office at Justice, which put her on the path to being appointed by President Bush to head the DEA in 2003.

With her background in asset forfeiture, Tandy has focused on going after the money of drug pushers.

“When I came through the door, I made money the No. 1 priority,” she said.

Obviously, I have a rather different take on Tandy’s tenure (which started, incidentally, with her cowering and fleeing to avoid a Capitol Hill confrontation with Suzanne Pfeil, a wheelchair-bound medical marijuana and post-polio patient who woke up one morning to the barrel of an assault weapon toted by a DEA goon). My tangle with Tandy on the prescription painkiller issue here. Good primer on asset forfeiture here.

Hat tip.

After the break, the story of Dr. Michael D. Jackson, facing 25 year in prison because the DEA has accused him of prescibing prescription painkillers “beyond the scope of medical practice.”

“Beyond the scope of medical practice,” of course, as determined by the drug cops at the DEA, not by other pain specialists.
(more…)

Every time John Tierney writes about the DEA’s war on prescription painkillers, the blogosphere’s left concocts some conspiracy-driven scheme where Tierney has only adopted the issue because his “buddy” Rush Limbaugh got ensnarled in the net. Today’s column, in which Tierney compares Limbaugh’s case to that of Richard Paey, ought to set them straight:

Now that Rush Limbaugh has managed to keep himself out of prison, the punishment he once advocated for drug abusers, let me suggest a new cause for him: speaking out for people who can handle their OxyContin.

[...]

He has portrayed himself as the victim of a politically opportunistic prosecutor determined to bag a high-profile trophy, which is probably true. But that’s standard operating procedure in the drug war supported by Limbaugh and his fellow conservatives.

[...]

Even if Limbaugh believes that drugs like OxyContin are a menace to himself, he ought to recognize that most patients are in Richard Paey’s category. Their problem isn’t abusing painkillers, but finding doctors to prescribe enough of them. And that gets harder every year because of the drug war promoted by conservatives like Limbaugh.

It has been said that a liberal is a conservative who’s been arrested. I wouldn’t wish such a conversion on Limbaugh. But a two-year investigation by drug prosecutors should be enough to turn a conservative into a libertarian.

Given Limbaugh’s childish comments on medical marijuana last month, he doesn’t seem to have learned much of anything from the Florida prosecutors’ exuberant persecution of him.

Here’s Rush Limbaugh on the FDA’s much-ridiculed April 20th statement on medical marijuana:

“The FDA says there’s no — zilch, zero, nada — shred of medicinal value to the evil weed marijuana. This is going to be a setback to the long-haired, maggot-infested, dope-smoking crowd.”

Here’s Will Saletan at Slate on Rush Limbaugh’s settlement last week on criminal charges of illegally obtaining prescription painkillers:

He got four doctors to prescribe a total of 2,000 painkilling pills in six months. The plea deal: He’ll be charged with fraud to conceal information to obtain a prescription, but the charge disappears in a year and a half if he sticks to treatment for his addiction. He’ll also pay Florida $30,000 for the cost of having investigated him.

I take no solace in Limbaughs’ drug woes. I think it’s more of a missed opportunity. None of us knows what exactly happened with respect to his painkiller problem, but my hunch is that like a lot of people, Limbaugh mistook physical dependence for addiction. And because Florida law wouldn’t let him legally obtain the medication he needed at the doses he needed it, he had to circumvent the law to find relief.

Physical dependence isn’t harmful. Diabetics are physically dependent on insulin. Asthmatics are physically dependent on bronchodialators. All of us are physcially dependent on air and water. And chronic pain patients successfully undergoing opiate therapy are physically dependent on painkillers. Addiction, on the other hand, is harmful. It’s the dogged, destructive pursuit of euphoria. The two are distinct, and are too often confused by policymakers.

Put another way, people physically dependent on opiates need the drugs to live a normal life. Addicts, on the other hand, tend to destroy their lives in pursuit of euphoria. That Limbaugh continued an enormously successful and demanding radio show throughout his alleged “addiction” suggests he was dependent, not addicted, and that he’s probably in more pain than he needs to be now that he’s “clean.”

Limbaugh’s problems could have been an opportunity to educate the public about pain, opiate therapy, and the government’s problematic war on painkillers. Instead, Limbaugh toed the drug prohibition line. Not only did he roll over for prosecutors, he took a cheap shot at other sick people in the process. His crude dismissal of the scores of AIDS, cancer, and chronic pain patients who have sought and found relief from medical marijuana wasn’t funny. It was foolish and hypocritical.

Given that Limbaugh’s transgression took place in Florida, it’s also difficult not to notice the discrepency in the way prosecutors in that state handled his case, and the way they handled the case of, for example, Richard Paey.

Another doctor goes down. Meanwhile, you could make a pretty good case that federal investigators killed one of the doctor’s patients by not giving back his records:

Patients of a North Little Rock doctor say they’re concerned about their health after federal agents confiscated their records.
Just over a week ago, agents with the Office of Inspector General served a search warrant on the office of pain specialist Dr. Brian Nichol.

Nichol’s patients, many of whom suffer from chronic pain, now say they cannot get adequate treatment without those records.

In a letter written by Dr. Nichol, he claims that one patient died Wednesday night, because that person could not receive proper care without the correct personal records.

Because the incident is still under investigation, federal agents are unable to comment about what they were looking for.

All for your protection, of course.

Bernard Rottschaefer’s appeal was denied last night by the Third Circuit. Oddly, the court didn’t even mention the Gonzalez v. Oregon case, which held that federal prosecutors aren’t permitted to determine what is and isn’t legitimate medical practice.

Rottschaefer, you’ll remember, is the doctor convicted of drug disribution for prescribing what drug cops said was too much OxyContin to his patients. The case against him grew more absurd when the prosecution’s star witness admitted in letters to her boyfriend that she lied on the stand about trading sex for prescriptions because the prosecution had promised her leniency for her own drug charges in return.

Rottschaefer’s now going to prison for the crime of believing his patients when they told him they were in pain. To this day, U.S. Attorney Mary Beth Buchanan has refused to press perjury charges against her star witness, despite the overwhelming evidence that Ms. Riggle lied on the stand.

Another doctor and pharmacist go down for administering opiate-based pain relief.

Note that both had spotless records, and that prosecutors concede that the patients to whom they prescribed the meds were legitimate. The two will now go to jail because (a) they prescribed what prosectors with no medical training deemed excessive amounts of opiates, and (b) the town in which the prescribed them has a problem with street use of OxyContin.

That, apparently, is enough to send them to jail. If they’re reflective of the larger Ventura community’s sentiment on this issue, the comments to the article are particularly depressing.

Oral arguments for Dr. Bernard Rottschaefer’s appeal are Friday.

The good news: Rottschaefer is represented by Eli Stutsman, the same lawyer who won the Oregon assisted suicide case before the Supreme Court (and who spoke at Cato’s painkiller conference).

The amusing component to this story is the continued attempts by U.S. Attorney Mary Beth Buchanan to justify the fact that her office either suborned perjury or exercised breathtaking ineptitude in the prosecution of Rottschaefer. After Rotschaefer’s prosecution, for example, Buchanan was giddily relaying to reporters the lurid details of the doctor’s alleged “drugs for sex” arrangements. Now that those allegations have been proven false by letters Buchanan’s own star witness wrote to her boyrfriend, Buchanan is insisting that the drugs for sex angle is irrrelevant, and Rottschaefer deserves conviction solely because an “expert witness” produced by the prosecution determined that Rottschaefer’s methods didn’t adequately safeguard against the possibility of diversion. For this, Buchanan wants to put the man in jail for what in all likelihood would be the rest of his life.

Buchanan’s most laughable line comes here, when attempting to explain why she won’t pursue perjury charges against her witness, whose letters explicitly conceded that she had lied under oath in exchange for leniency. Says Buchanan:

“When is the witness more credible — under oath in a federal trial, or trying to convince a boyfriend she wasn’t having sex outside their relationship?” Buchanan said.

That’s one way of putting it. Another might be, “When is the witness more credible — when she’s spilling her guts to a paramour, or when prosecutors have promised her that a certain type of ‘testimony’ will keep her ass out of jail?”

To-may-to. To-mah-to.