Convicting Prescribers Who Lack Criminal Intent Violates Statute, Undermines Access to Controlled Medications
January 7, 2022 – Washington, DC – The not-for-profit Center for U.S. Policy (CUSP), together with Lynn R. Webster, M.D.; Stephen J. Ziegler, Ph.D., J.D.; and Michael C. Barnes, Esq., has filed an amicus brief asking the U.S. Supreme Court to overturn the drug trafficking conviction of a physician who did not intend to prescribe unlawfully.
The case is Xiulu Ruan v. United States. Ronald W. Chapman II, Esq., of the Chapman Law Group serves as counsel of record for the amici curiae (friends of the court).
Under the federal Controlled Substances Act, prescribers of controlled medications, such as opioids to treat pain or opioid use disorder, may be convicted of unlawful drug distribution if their prescriptions “fall outside the usual course of professional practice.” The legal question before the Supreme Court, on which the federal circuit courts are divided, is whether prescribers may be criminally convicted without regard to whether, in good faith, they “reasonably believed” or “subjectively intended” that their prescriptions were within the usual course of professional practice.
CUSP and its fellow friends of the court contend that, to convict a prescriber of drug trafficking, a trier of fact must find, beyond a reasonable doubt, that the prescriber not just intentionally prescribed a controlled medication, but that he knew at the time the prescription was issued that he was acting contrary to federal law.
The criminal intent “requirement in the statute applies not only to the intent to write or dispense the prescription, but to all remaining material elements, including the defendant’s knowledge that the prescription was illegal at the time it was made,” the brief states.
If the decision of the 11th Circuit Court in the Ruan case is allowed to stand, the negative impact of convicting a prescriber who had no criminal intent “is not simply damage to a prescriber’s reputation, livelihood, or their loss of liberty.” This case “is also about the millions of people who need and use controlled medicines responsibly but who face significant barriers to access. These barriers have resulted in … increases in substance use disorder, drug poisonings, and suicide.”
The brief concluded, “Healthcare professionals … who lack the requisite criminal intent and evil purpose, should not have to face the government’s enormous resources and risk imprisonment for conduct that amounts to medical error, negligence, or at most, recklessness. Such matters are best addressed administratively by state licensing boards, in civil actions, and the Federal Government’s existing administrative framework for registrants, not the federal criminal courts.”
About the Center for U.S. Policy
CUSP is a nonpartisan, 501(c)(3) not-for-profit research and education organization. CUSP’s 2022 issue priorities include reducing substance use disorders and their consequences, including drug poisonings. For more information on CUSP and its initiatives, go to centerforuspolicy.org and follow @USPolicyCenter on Twitter.
About Lynn R. Webster, M.D.
Lynn R. Webster, M.D., is a senior fellow at the Center for U.S. Policy, former Mayday Pain and Policy Fellow, and a physician who is board certified in anesthesiology, pain medicine, and addiction medicine. He is the author of The Painful Truth (Oxford University Press) and a co-producer of The Painful Truth documentary, both of which chronicle the lives of people with pain and make a compelling case for treating them with compassion. Full bio.
About Stephen J. Ziegler, Ph.D., J.D.
Stephen J. Ziegler, Ph.D., J.D., is a former Mayday Pain Scholar and Pain Policy Fellow and has focused on the medico-legal barriers to chronic pain and access to essential medicines for over 20 years. Dr. Ziegler has published over 35 articles and is a professor emeritus, associate, from Purdue University.
About Michael C. Barnes, Esq.
Michael C. Barnes, Esq., is Chairman of the Center for U.S. Policy and Principal Attorney at Sequel Legal, where he practices health and drug law and policy. Full bio.
About Ronald W. Chapman II, Esq.
Ronald W. Chapman II, Esq., is a shareholder and the chairperson of the white-collar defense and government investigations practice at Chapman Law Group. He is a former prosecutor and the author of Fight the Feds: Unraveling Federal Criminal Investigations (Liebling Literary). Full bio.