Tags: Prohibition | All | Over | Again

Prohibition All Over Again

Monday, 08 August 2005 12:00 AM

We've talked about investigatory abuse and prosecutorial overzealousness, of doctors hounded and ruined for honest mistakes or because something they prescribed ended up on the street through no fault of their own (rather like suing McDonald's because somebody spilled McDonalds' coffee into her own lap).

We've noted that the federal offensive against pain management is driving some doctors out of practice, keeping others from treating patients in pain, and forcing many to undertreat patients.

But our purpose this week is to provide a bit of historical background, demonstrating how this particular nightmare, like so many others, comes about through the kind of humanitarian empowering ignorance that remains impervious to the real-world damage it does.

In 1914, five years before America embarked on that greatest of all failed prohibitions, Prohibition, Congress passed the Harrison Act. This law, one of the final products of the Progressive regulatory bulimia, outlawed the non-medical use of opium, morphine and cocaine.

According to a policy analysis published this June by the Cato Institute, by Ronald T. Libby, a professor of political science and public administration at the University of North Florida, this act "made it a criminal felony for physicians to prescribe narcotics to addicts."

As with Prohibition, the Harrison Act created a new criminal class, this time about 250,000 patients and their doctors. Before 1914, opiate narcotics were unregulated and as widely available as aspirin is today. They were also widely used in nostrums for curing or treating many illnesses and conditions.

The struggle against addiction has evolved into a war against effective treatment of chronic pain.

In 1970, the Harrison Narcotics Act was replaced by the Drug Abuse Prevention and Control Act, which initiated the War on Drugs. In 1975, the Supreme Court ruled that Drug Enforcement Administration (DEA) licensed doctors "can be prosecuted when their activities fall outside the usual course of professional practice" – as though every patient and medical situation was "usual" and no different from any other.

Until the 1990s, the DEA mostly focused on illegal black market drugs, such as cocaine, crack and marijuana. But in 2001, fomented by erroneous media and legislative scares, the DEA created a new mission for itself, combating the illegal diversion of a legal prescription drug, OxyContin.

Ironically, these scares were shouted from the housetops during the same time that the medical profession learned that properly managed opiate pain-control drugs could be used very safely and very effectively to break the pain cycle caused by failure of the body's internal pain control systems when overloaded with chronic pain.

We also learned that, properly managed, almost every patient taking these medicines for chronic pain relief easily stops taking these drugs when the pain-causing condition resolves. These patients become "physically dependent" on the drugs for pain relief but do not suffer addiction, that is, do not suffer cravings for a substance, compulsively use the substance, and continue use of the substance, in spite of harm.

Addiction is sometimes ignorantly touted as a very likely consequence of the medical use of opiate medicine for chronic pain. It just ain't so.

When appropriately used, powerful pain medicines allow patients suffering pain to improve their lives. In contrast, these same drugs, when abused by addicts, cause drug abusers' lives to deteriorate.

Adding injury to insult, Congress abdicated its duty to control its own government agencies and gave the DEA the power to finance its own operations, that is, to charge what it liked for services and to steal from the innocent (i.e., from not-proven-guilty suspects) and keep the loot. As a result, prosecutors often seize assets and cash from doctors before the prosecutors file any charges.

This "civil asset forfeiture" power was designed as a tool against organized crime, not to persecute the innocent. Lacking any cash or resources, doctors are unable to defend themselves in court. This gives the agents and prosecutors incentives to follow the money – first – rather than seek justice, as some openly admit.

At a 2003 training conference for drug diversion agents, Detective Dennis M. Luken, of the Warren-Clinton Drug and Strategic Operations Task Force in Lebanon, Ohio, and treasurer of the National Association of Diversion Drug Investigators, advised agents to "remember that asset forfeiture investigation should begin at the start of your criminal case." In other words, look to the loot first; crime or criminal intent comes second.

Until recently, the DEA published a guidance-for-physicians pamphlet stating: "For a physician to be convicted of illegal sale, the authorities must show that that the physician knowingly and intentionally prescribed or dispensed controlled substances outside the scope of legitimate practice." But just before the lawyers for Dr. William Hurwitz attempted to introduce the pamphlet in evidence in his defense, the DEA withdrew the pamphlet, denied the validity of previous DEA guidelines and failed to define coherent new policies.

(For more on this case, see

The judge agreed that the pamphlet couldn't be shown to the jury, because it did not have the "force of law." This at the same time judges allow government lawyers to use inflammatory language to impugn doctor defendants, such as comparing doctors to the Taliban. Such out-of-bounds rhetoric doesn't have the force of law either, but judges let it pass.

Sounds rather ex post facto to us, moving the goalposts, the sidelines and changing the rulebook after the game is over.

It's even a bit much for other prosecutors. Thirty state attorneys general have expressed concern about the DEA's quicksand-solid position this January. They signed a letter to the DEA complaining and also saying, "we have learned that adequate pain management is often difficult to obtain because many physicians fear investigations and enforcement actions if they prescribe adequate levels of opioids or have many patients with prescriptions for pain medications."

People suffering chronic pain are suffering because, for fun and personal profit, DEA agents are telling doctors how to do their jobs. The War on Drugs is taking the lives of way too many innocent patients and doctors. Whether called "collateral damage" or any other name, the damage is excessive and this is one war long since lost.

It's time to prohibit this Prohibition against treating pain.

In the end, the real problem is all of us who believe that regulation and prosecution can solve all our problems for us.


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We've talked about investigatory abuse and prosecutorial overzealousness, of doctors hounded and ruined for honest mistakes or because something they prescribed ended up on the street through no fault of their own (rather like suing McDonald's because somebody spilled...
Monday, 08 August 2005 12:00 AM
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