Close the prescription drug loophole! And close the First Amendment loophole!

Both M. Simon and I have written previously about Dr. Stephen Schneider, who was vigorously prosecuted for and convicted of prescribing narcotic drugs to addicts. If he in fact did that, I have no philosophical problem with it — any more than I have a problem with a liquor store selling booze to an alcohol-addicted patron. Legally, however, doctors are not allowed to prescribe to patients they know are simple drug addicts (as opposed to patients who become dependent while being medicated for other things). Under the present system, a doctor who provides narcotics for an addict in order to maintain his habit commits a crime. Now, I think many people (including some who believe that non-medical narcotic drugs should be illegal) would agree that bad as drug addiction is, that it might be better for addicts to be supplied by doctors than by a street dealers. The reasons are obvious; the addict would be less likely to ingest substances of unknown quality and dose (which would mean he’d be less likely to die), and he would be paying pharmacy prices for his drugs (which are far, far, lower than street prices — we’re talking fifty cents for a pill that with a street value of fifty dollars.)
Obviously, the judge who sentenced Dr. Schneider and his wife felt very differently, for he sentenced him to 30 years and his wife to 33 years in prison. It is worth bearing in mind that because of the way the system works, if a doctor prescribes for an addict (“improper” prescribing) this activates a legal chain of potential federal crimes:

Prescribing painkillers becomes drug trafficking, applying for insurance reimbursement becomes fraud, making bank deposits becomes money laundering, and working with people at the office becomes conspiracy.

I have serious problems with the above, just as I have serious problems with many of the reasons the judge gave for the sentence. But there’s one in particular that just struck me as outrageous. The judge openly admitted that the sentence was intended as a deterrent against the activist group that had tried to help Dr. Schneider.
No, seriously. The following — from U.S. District Judge Monti Belot’s “Sentencing Decision” — is what passes for legal thinking today:

There is one aspect of deterrence I hope this case achieves and that is to curtail or stop the activities of the Bozo the Clown outfit known as the Pain Control Network, a ship of fools if there ever was one.
A ship of fools is an allegory in Western literature which depicts a ship with deranged passengers without a pilot who are seemingly ignorant of their own direction.
When persons leading or involved in an organization such as the Pain Control Network are so stupid that they support what occurred in this case, they demean the efforts of legitimate medical providers to help persons suffering from chronic pain.

So, because the Pain Control Network tried to help an accused criminal defendant, the judge is holding that against the doctor, and wants to send a signal to activists that if they dare help accused doctors in these situations, it will adversely affect their sentences. His brazenly admission of the reason for the sentence is like saying this:
“Your sentence is intended to send a message to your supporters!”
Bear in mind that what Dr. Schneider’s supporters did was standard First Amendment fare. They agitated against what they perceived as an injustice. The right to do that goes to the heart of our freedom. (The right to freely petition for redress of grievances is not only in the First Amendment, it is as old as the Magna Carta.) And by sentencing Dr. Schneider, this judge admitted that his goal was to to get back at them; i.e. to retaliate against those who believed that the case was an injustice. I don’t care what anyone thinks of the drug laws, or the doctor, or his supporters, to impose a criminal sentence with a view towards deterring the First Amendment rights of that person’s supporters is an outrage by any standard, and I think it evinces such bias and hostility that it requires reversing the doctor’s conviction.
The sentence, of course, is just one wrinkle of one of the scariest legal cases I have ever seen. It ramps up the drug war to an entirely new level by unprecedented use of the criminal justice system to stifle dissent. Not only did the government attempt to criminally prosecute the activists, but after that failed, the prosecutor attempted to use the grand jury system against the activist group, in the process bankrupting Siobhan Reynolds. But even that wasn’t enough. The latest wrinkle is that they sealed the records in the case against Reynolds, so this has become what Jacob Sullum calls “A First Amendment Case You Can’t Talk About“:

The case has been sealed because it grew out of a grand jury investigation of Reynolds that Treadway instigated because she was irritated by Reynolds’ advocacy on behalf of the Schneiders. Supposedly looking for evidence of obstruction of justice, Treadway obtained subpoenas that demanded, among other things, communications between Reynolds and the Schneiders, a PRN-produced video on the conflict between drug control and pain control, and documents related to a PRN-sponsored billboard in Wichita that proclaimed, “Dr. Schneider never killed anyone.” This investigation followed Treadway’s unsuccessful attempt to obtain a gag order prohibiting Reynolds from talking about the Schneiders’ case.
Reynolds unsuccessfully challenged the subpoenas on First Amendment grounds in the U.S. District Court for the District of Kansas, then appealed that decision to the U.S. Court of Appeals for the 10th Circuit. At that point, the Reason Foundation (which publishes this website as well as Reason magazine) and the Institute for Justice filed an amicus brief on her behalf. The 10th Circuit ruled against Reynolds in April, and she was hit with daily contempt fines that she and her organization paid until they ran out of money last summer, at which point she surrendered the material that Treadway wanted rather than go to jail. Now she is asking the Supreme Court to clarify how the First Amendment constrains grand jury subpoenas, including the standards for determining when an investigation is a good-faith effort to find evidence of a crime (as opposed to, say, a vendetta against a critic) and when it is permissible to demand material that implicates freedom of speech. The petition, prepared by First Amendment specialist Robert Corn-Revere, also asks the Court to consider the extraordinary secrecy surrounding this case, which has proceeded all the way to the highest court without a published opinion or publicly available briefs.

Couple that with the admission by the judge that the sentence itself was also a vendetta against the critic, and I’m surprised there isn’t more public outrage.
I mean really. If a vindictive federal prosecutor can do this to Siobhan Reynolds for supporting Dr. Schneider, then what’s to stop them from going after his supporters in the blogosphere, like yours truly? What’s to stop a judge from using Google to determine the level of online support for an accused defendant, and then using his sentencing powers to deter their free speech?
There’s more about this in the New York Times, which also noted the irony that an amicus brief in support of the First Amendment cannot even be seen!

Last week, I asked a lawyer from a libertarian group for a copy of a brief it had filed in a First Amendment case. Sounding frustrated and incredulous, he said a federal appeals court had sealed the brief and forbidden its distribution.
“It’s a profound problem,” said the lawyer, Paul M. Sherman, with the Institute for Justice. “We want to bring attention to important First Amendment issues but cannot share the brief that most forcefully makes those arguments.”
The brief was filed in support of Siobhan Reynolds, an activist who thinks the government is too aggressive in prosecuting doctors who prescribe pain medications.

From the Washington Post:

“I think it is rare you see a case that entire dockets through the appellate process are subject to this kind of secrecy,” said Corn-Revere, Reynolds’ attorney. “And that, of course, is one of the issues we are asking the court to address.”
Reynolds’ case also raises the question before the Supreme Court of whether grand juries can be used to silence dissent, he said. Her petition says people should be able to criticize the government without fear and asks the court to set standards for lower courts allowing grand juries to subpoena materials protected by the First Amendment.

Glenn Reynolds called the situation “Kafkaesque,” and added,

Good grief. This is disgraceful. (Note: Siobhan Reynolds is no relation).

I guess Glenn is lucky he’s not related to Ms. Reynolds, or else he too might find himself served with a subpoena for obstructing justice, be cited as an additional aggravating factor justifying Dr. Schneider’s long sentence, and find all Instapundit posts on the subject judicially sealed.
And here’s the Cato Institute’s assessment which Glenn Reynolds linked, and with which I couldn’t agree more:

This case represents the worst of government excesses in federal overcriminalization and overzealous prosecution. The federal government continues to treat doctors as drug dealers, as Ronald Libby points out in this Cato policy analysis. The grand jury, intended as a check on prosecutorial power, instead acts as an inquisitorial bulldozer that enhances the power of the government. My colleague Tim Lynch examined this phenomenon in his policy analysis A Grand Facade: How the Grand Jury Was Captured by Government.
Cato Adjunct Scholar Harvey Silverglate examined the case of Dr. William Hurwitz in his book, Three Felonies a Day: How the Feds Target the Innocent. The DEA turned a few of Hurwitz’s patients into informants and prosecuted Hurwitz. When Hurwitz shuttered his practice, two of his patients killed themselves because they could not get prescriptions for necessary painkillers. Siobhan Reynolds’s husband, another of Hurwitz’s patients, could not get essential medication and died of a brain hemorrhage, likely brought on by the blood pressure build-up from years of untreated pain.

Well if the patients killed themselves, obviously that was the doctor’s fault too! For addicting them!
Yes, our government thinks that way, and they have ninja bureaucrats who run around treating doctors like terrorists:

Ninja bureaucrats continue to treat doctors that prescribe painkillers as tactical threats on par with terrorist safehouses. When the DEA raided the office of Dr. Cecil Knox in 2002, one clinic worker “thought she and her husband, who was helping her in the office that day, would be shot. She looked on in horror as an agent put a gun to his head and ordered, ‘Get off the phone! Now!‘” Radley Balko chronicles this unfortunate trend in Overkill: The Rise of Paramilitary Police Raids in America, and the Raidmap has a separate category for unnecessary raids on doctors and sick people (sorted at the link).

Out of curiosity, I clicked on that last link, and found this:

Police pound on the door of 41-year-old Robert Filgo, a medical marijuana patient who has a doctor’s perscription and a certificate from the city of Oakland to grow, possess, and smoke marijuana.
Before he can answer their knocks, police force open the door and order Filgo to the floor. While searching his home, police shoot Filgo’s pet Akita nine times, killing it.
The Alameda County Distric Attorney’s Office later opted not to press charges against Filgo.

I guess the poor guy’s mistake was in going to a doctor. As I have explained, the Drug War’s subsidiary war on doctors necessarily means war against patient privacy. This touches on yet another irony: if you buy drugs off the street, the government has to get a search warrant to look for evidence, but if you get prescription meds through a doctor, the government can rifle through your once-private records at any time.
Factor in Obamacare, and there will soon be no medical privacy at all. I guess the goal is to force people who want or need drugs to buy only on the underground market, as Rush Limbaugh was forced to. (I repeatedly defended Rush at the time, and now I’m wondering why I wasn’t investigated for obstruction of justice.)
Hell, even in the darkest days of Prohibition, doctors were allowed to write medical prescriptions for booze — using whatever medical standards they might deem appropriate. And that was allowed to go on, despite claims that medical alcohol “made a mockery of Prohibition” and the AMA declared its “use in therapeutics … has no scientific value.” (Contrary to what we now know to be true….)
Today the doctor who prescribed booze would be charged with fraud, money-laundering, and conspiracy, and SWAT teams would break down the doors of his “clinic”! And his defenders would find themselves under investigation for “obstruction of justice,” with their First Amendment rights being silenced by the courts.
That’s progress.