Routing

The medical field of treating chronic pain isstill in its infancy. It was only in the late 1980sthat leading physicians trained in treating thechronic pain of terminally ill cancer patientsbegan to recommend that the “opioid therapy”(treatment involving narcotics related to opium)used on their patients also be used for patientssuffering from nonterminal conditions. The newtherapies proved successful, and prescriptionpain medications saw a huge leap in salesthroughout the 1990s. But opioid therapy hasalways been controversial. The habit-formingnature of some prescription pain medicationsmade many physicians, medical boards, and lawenforcement officials wary of their use in treatingacute pain in nonterminal patients. Consequent-ly, many physicians and pain specialists haveshied away from opioid treatment, causing mil-lions of Americans to suffer from chronic paineven as therapies were available to treat it.

The problem was exacerbated when themedia began reporting that the popular narcotic

pain medication OxyContin was finding its wayto the black market for illicit drugs, resulting inan outbreak of related crime, overdoses, anddeaths. Though many of those reports proved tobe exaggerated or unfounded, critics in Congressand the Department of Justice scolded the U.S.Drug Enforcement Administration for thealleged pervasiveness of OxyContin abuse.

The DEA responded with an aggressive planto eradicate the illegal use or “diversion” ofOxyContin. The plan uses familiar law enforce-ment methods from the War on Drugs, such asaggressive undercover investigation, asset forfei-ture, and informers. The DEA’s painkiller cam-paign has cast a chill over the doctor-patient can-dor necessary for successful treatment. It hasresulted in the pursuit and prosecution of well-meaning doctors. It has also scared many doctorsout of pain management altogether, and likelypersuaded others not to enter it, thus worseningthe already widespread problem of undertreatedor untreated chronic pain.

Treating Doctors as Drug DealersThe DEA’s War on Prescription Painkillers

by Ronald T. Libby

_____________________________________________________________________________________________________

Ronald T. Libby is a professor of political science and public administration at the University of North Florida.

Executive Summary

No. 545 June 16, 2005

Introduction

Untreated pain is a serious problem in theUnited States. Given the difficulties in measur-ing a condition that’s untreated, estimates vary,but most experts agree that tens of millions ofAmericans suffer from undertreated or untreat-ed pain. The Society for Neuroscience, thelargest organization of brain researchers, esti-mates that 100 million Americans suffer fromchronic pain.1 The American Pain Foundation,a professional organization of pain specialists,puts the number at 75 million—50 millionfrom serious chronic pain (pain lasting sixmonths or more), and an additional 25 millionfrom acute pain caused by accidents, surgeries,and injuries. The societal costs associated withuntreated and undertreated pain are substan-tial. In addition to the obvious cost of needlesssuffering, damages include broken marriages,alcoholism and family violence, absenteeismand job loss, depression, and suicide.2 TheAmerican Pain Society, another professionalgroup, estimates that in 1995 untreated paincost American business more than $100 billionin medical expenses, lost wages, and other costs,including 50 million workdays.3 A 2003 articlein the Journal of the American Medical Associationputs the economic impact of common ailmentsalone—such as arthritis, back pain, andheadache—at $61.2 billion per year.4

Chronic pain can be brought on by a widerange of illnesses, including cancer, lower backdisorders, rheumatoid arthritis, shingles, post-surgical pain, fibromyalgia, sickle cell anemia,diabetes, HIV/AIDS, migraine and clusterheadaches, pain from broken bones, sportsinjuries, and other trauma.

According to one 1999 survey, just one infour pain patients received treatment ade-quate to alleviate suffering.5 Another study ofchildren who died from cancer at two Bostonhospitals between 1990 and 1997 found thatalmost 90 percent of them had “substantialsuffering in the last month, and attempts tocontrol their symptoms were often unsuccess-ful.”6 In a formal policy statement issued in1999, the California medical board found “sys-tematic undertreatment of chronic pain,”

which it attributed to “low priority of painmanagement in our health care system,incomplete integration of current knowledgeinto medical education and clinical practice,lack of knowledge among consumers aboutpain management, exaggerated fears of opioidside effects and addiction, and fear of legalconsequences when controlled substances areused.”7 The American Medical Associationstated in a 1997 news release that 40 millionAmericans suffer from serious headache paineach year, 36 million from backaches, 24 mil-lion from muscle pains, and 20 million fromneck pain. An additional 13 million sufferfrom intense, intractable, unrelenting pain notrelated to cancer. Most of those patients, theAMA warned, receive inadequate care becauseof barriers to pain treatment.8 A 2004 surveyof the medical literature published in theAnnals of Health Law found documented wide-spread undertreatment of pain among the ter-minally ill, cancer patients, nursing home resi-dents, the elderly, and chronic pain patients, aswell as in emergency rooms, postoperativeunits, and intensive care units.9

One reason chronic pain remains under-treated is that there are few doctors who spe-cialize in the field. Dr. J. David Haddox, the vicepresident of health affairs at Purdue PharmaL.D., the manufacturer of long-acting opioidmedications OxyContin and MSContin, esti-mates that between four or five thousand doc-tors who specialize in pain management treatthe 30 million chronic pain patients who seektreatment in the United States10—about onedoctor for every 6,000 patients. In Florida, just 1percent or 574 of the state’s 56,926 doctors pre-scribed the vast majority of narcotic drugs paidfor by Medicaid in 2003.11

The shortage of pain doctors can in part beexplained by the relatively new, dynamicnature of pain medicine as well as society’saversion to narcotics. It wasn’t until the 1980sthat physicians who specialized in opioidtreatment for pain associated with terminalcancer began to advocate the same treatmentfor nonterminal chronic pain patients.12 Thefact that the field is so novel has not only pre-vented physicians from seeking it out as a spe-

2

In 1995 untreated paincost Americanbusiness more

than $100 billionin medical

expenses, lostwages, and other

costs, including50 million workdays.

cialty, it initially caused a great deal of debatewithin the medical community. Thoughmany physicians now approve of opioid thera-py for nonterminal chronic pain, there wassome initial resistance, from both inside andoutside the medical community. “There’s stilla fear of opiates,’’ University of California atSan Francisco pain expert Allan Basbaum toldthe San Francisco Chronicle, “The word ‘mor-phine’ scares the hell out of people. To manypatients, morphine either means death oraddiction.”13 In an article for Ramifications, anewsletter for pain specialists, Dr. Karsten F.Konerding of the Richmond Academy ofMedicine compares the contemporary prac-tice of pain medicine with the infant field ofradiology at the turn of the 19th century. OneLondon newspaper at the time, Konerdingnotes, called radiographs of bones and organs“a revolting indecency.”14

In addition to a reluctance to enter anemerging and not altogether accepted field,physicians specializing in pain medicine canalso find themselves caught in a damned-if-you-do, damned-if-you-don’t conundrumwith some patients. This study deals primar-ily with the government’s efforts to minimizethe overprescribing of painkillers, but severalphysicians have also been sued for underpre-scribing, including one California physicianwho was successfully sued in 2001 for $1.5million.15

But a significant reason pain is undertreat-ed—and increasingly so—is the government’sdecision to prosecute pain doctors who it saysoverprescribe prescription narcotics. Accordingto the federal government, a small group ofdoctors is prescribing hundreds of millions ofdollars of such drugs, many of which are find-ing their way to the black market, contributingto an epidemic of addiction, crime, and death.16

Over the last several years, federal and stateprosecutors have prosecuted licensed physi-cians for drug distribution, fraud, manslaugh-ter, and even murder for the deaths of peoplewho misused and/or overdosed on prescriptionpainkillers. If convicted, those physicians aresubject to the same mandatory drug sentencingguidelines designed to punish conventional

drug dealers. Those highly publicized indict-ments and prosecutions have frightened manyphysicians out of the field of pain management,leaving only a few thousand doctors in thecountry who are still willing to risk prosecutionand ruin in order to treat patients sufferingfrom severe chronic pain.17 One 1991 study inWisconsin, for example, found that over halfthe doctors surveyed knowingly undertreatedpain in their patients out of fear of retaliationfrom regulators.18 Another 2001 study ofCalifornia doctors found that 40 percent of pri-mary care physicians said fear of investigationaffected how they treated chronic pain.19 Instates where state regulatory bodies aggressive-ly monitor physicians’ narcotics-prescribinghabits, there is even more reticence among doc-tors to adequately treat pain.20

“The medical ambiguity is being turnedinto allegations of criminal behavior,” Dr.Russell K. Portenoy told the Washington Post.Portenoy is a pain specialist at Beth IsraelMedical Center in New York, and is consid-ered one of the fathers of opioid pain therapy.“We have to draw a line in the sand here, orelse the treatment will be lost, and millions ofpatients will suffer.”21

A Brief History of Painkillers and the Law

From the introduction of heroin from the1880s until about 1920, narcotics were unregu-lated and widely available in the United States.22

Drug addiction was largely accidental, due tothe public’s ignorance about the habit-formingproperties of morphine, the most popularhighly addictive drug of the era. Though widelyused for medical operations and convalescence,morphine was also used in everyday potionsand elixirs. The drug was commonly regardedas a universal panacea, used to treat as many as54 diseases, including insanity, diarrhea, dysen-tery, menstrual and menopausal pain, andnymphomania.23 Opiates were as readily avail-able in drug stores and grocery stores as aspirin,serving many of the same functions that alco-hol, tranquilizers, and antidepressants do

3

A 2001 study of California doctors foundthat 40 percentsaid their fear ofan investigationaffected how theytreated chronicpain.

today. That perception changed during the pro-gressive era of the early 20th century, when thegovernment criminalized the common use ofopium.24

The first federal law to criminalize the non-medical use of drugs was the Harrison Act of1914, which outlawed the nonmedical use ofopium, morphine, and cocaine.25 The law wassupported by advocates of Prohibition.26

Section 2 of the Harrison Act made it illegalfor any physician or druggist to prescribe nar-cotics to an addict, effectively turning a quar-ter-million drug-addicted citizens and theirdoctors into criminals.27 By 1916, 124,000physicians; 47,000 druggists; 37,000 dentists;11,000 veterinarians; and 1,600 manufactur-ers, wholesalers, and importers had registeredwith the Treasury Department, as required bythe Harrison Act.28 Almost as soon as they hadregistered, hundreds of doctors were arrestedand prosecuted for prescribing narcotics toaddicted patients.29 During the first 14 yearsof the act, U.S. attorneys prosecuted morethan 77,000 people, mostly medical profes-sionals, for violating the act.30 Between 1914and 1938, about 25,000 doctors were arrestedunder the terms of the Harrison Act for givingnarcotic prescriptions to addicts.31 Many wereeventually put on trial, and most lost their rep-utations, careers, and/or life savings. By 1928,the average sentence for violation of theHarrison Act was one year and 10 months inprison.32 More than 19 percent of all federalprisoners were incarcerated for narcoticsoffenses.33 Clinics closed down, and physi-cians had little choice but to abandon thou-sands of addicted patients. A black market fornarcotics soon arose.

With the endorsement of powerful publicfigures such as Secretary of State WilliamJennings Bryan, Captain Richmond PearsonHobson (the “Great Destroyer” of alcoholand narcotics addiction and the Anti-SaloonLeague’s highest-paid publicist), and Harry J.Anslinger (the first commissioner of nar-cotics and former assistant commissioner ofProhibition), the U.S. government inaugurat-ed an aggressive, unprecedented pursuit ofphysicians and their addicted patients.34

The Harrison Narcotics Act was repealedin 1970, but was replaced by the Drug AbusePrevention and Control Act.35 DAPCA, alongwith the 1975 Supreme Court ruling in thecase U.S. v. Moore, reaffirmed the legality ofthe Harrison Act’s criminalization of doctorswho treat addicts by prescribing controlledpharmaceuticals.36 In Moore, the SupremeCourt confirmed that physicians who arelicensed by the Drug Enforcement Agency toprescribe narcotics under Title II of DAPCA(called the federal Controlled SubstancesAct) “can be prosecuted when their activitiesfall outside the usual course of professionalpractice.”37 A doctor could be criminallycharged with unlawfully prescribing (or“diverting”) highly addictive narcotic drugsthat the DEA classifies as Schedule II “con-trolled substances.” Even though it waspassed during a period of general drug toler-ance, DAPCA would prove to be a potentweapon in later years as the War on Drugsintensified.

A New Mission for the DEA

As the federal government’s chief drug lawenforcement agency since 1973, the DEA’smission has been to “bring to the criminaland civil justice system substances destinedfor illicit traffic in the U.S.”38 Until the 1990s,the DEA focused its resources primarily onillegal black market drugs, such as heroin,cocaine, crack cocaine, ecstasy, and marijua-na, in urban areas.

But in 1999 the DEA came under heavycriticism from Congress on the grounds thatthere was no “measurable proof” that it hadreduced the illegal drug supply in the coun-try.39 In 2000 and 2001 the Department ofJustice, which administers the DEA, gave theagency a highly critical rebuke, and assertedthat the Drug Enforcement Agency’s goalswere not consistent with the president’s fed-eral National Drug Control Strategy.40 TheDEA would need to find a new front for theWar on Drugs, one that could produce tangi-ble, measurable results.

4

The DEA wouldneed to find a

new front for theWar on Drugs, one that could

produce tangible,measurable

results.

The Controlled Substances Act empow-ered the DEA to regulate all pharmaceuticaldrugs. In 2002 Glen A. Fine, the inspectorgeneral of the Department of Justice, askedwhy the DEA wasn’t doing more to combatprescription drug abuse when it was “a prob-lem equal to cocaine.”41 Fine claimed that,while 4.1 million Americans used cocaine in2001, 6.4 million illegally used prescriptionnarcotic painkillers that same year. He alsoclaimed that the illicit use of pain medicationaccounted for 30 percent of all emergencyroom drug-related deaths and injuries.

In 2001 the DEA had already announced amajor new anti-drug campaign: the OxyContinAction Plan.42 The agency underscored thethreat of prescription drug abuse by assertingthat the number of people who “abuse con-trolled pharmaceuticals each year equals thenumber who abuse cocaine—2 to 4 percent ofthe U.S. population.”43 The agency also claimedthat prescription drugs increased the numberof overdose deaths by 25 percent and account-ed for 20 percent of all emergency room visitsfor drug overdoses.44 Criticism from Congressand the Department of Justice the followingyear reaffirmed the agency’s determination tocrack down on prescription drugs. TheOxyContin plan would elevate a legal, prescrip-tion drug to the status of cocaine and otherSchedule II substances. That shift put pain doc-tors in the DEA’s crosshairs, as susceptible toinvestigation as conventional drug dealers. InSeptember of 2003, at the 69-count indictmentof Virginia doctor William Hurwitz, U.S.Attorney Mark Lytle claimed that the physicianwas complicit in the deaths of three patients,and compared William Hurwitz to a “street-corner crack dealer.” Lytle further argued thatDr. Hurwitz posed such a threat to the com-munity that he should be denied bail.45

The OxyContin Action Plan bore a remark-able resemblance to the Harrison Act in that itenabled the federal government to prosecutephysicians who prescribed an otherwise legalnarcotic drug, due to unfounded fears of a“dope menace” sweeping the country. DEAcommissioner Asa Hutchinson described thenonmedical use of OxyContin as a deadly new

drug epidemic beginning in Appalachia andspreading to the East Coast and Midwest,infecting suburban, urban, and rural neigh-borhoods across the country:

In the past, Americans viewed drugabuse and addiction as an overwhelm-ingly urban problem. As the drug prob-lem escalated, drugs began to streaminto rural neighborhoods throughoutsmall town America. Residents began tofeel the impact of drugs such as mari-juana, cocaine, methamphetamine,MDMA, heroin, and OxyContin, whichentered their towns at an alarming rate.Violence associated with drug traffick-ing also became part of the landscape insmall cities and rural areas.46

This was the first time that the DEA hadgrouped a legal, prescription drug with illicitdrugs, though it wouldn’t be the last.Government officials like Hutchinson havegone on to make frequent public statementsputting OxyContin in close rhetorical prox-imity to cocaine, heroin, and other drugswith a proven record for generating publicfear. During congressional testimony in April2002, Hutchinson explained the necessity forrenewed vigilance in the War on Drugs, andwhy the new front against prescriptionpainkillers was necessary. He announced thatthe DEA would reallocate many of itsresources from illegal drugs in urban areas toillicit prescription drugs in rural areas inorder to address the emerging opioid threat.Hutchinson said that the DEA would workwith local and state law enforcement agen-cies in the effort, and would use its AssetForfeiture Fund to help state and local offi-cials finance the new initiative.47

The DEA’s public relations effort linkinga pain medication like OxyContin to cocaine,heroin, and other prohibited substances wasa marked departure from its traditional mis-sion. In fact, the DEA had created a new mis-sion for itself—combating the illegal diver-sion of otherwise legal medication. Wherethe conventional drug war targeted black

5

Hutchinsonannounced thatthe DEA wouldreallocate manyof its resourcesfrom illegal drugs in urbanareas to illicit prescriptiondrugs in ruralareas in order toaddress theemerging opioidthreat.

markets and the unknown, hard-to-quantifyentities that come with them, the new mis-sion offered in practicing physicians a pool ofregistered, licensed, cooperative targets whokept records, paid taxes, and filled out a vari-ety of forms.

Justifying the OxyContin Campaign

In an effort to justify its national cam-paign against OxyContin, the DEA contacted775 medical examiners from the NationalAssociation of Medical Examiners in 2001and instructed them to report “OxyContin-related deaths” for 2000 and 2001.48 On thebasis of those reports, the DEA subsequentlyannounced 464 “OxyContin-related deaths”over those two years.49

But the conclusions the DEA drew fromthis data are significantly flawed.

First, the DEA’s criteria for “OxyContin-related deaths” are problematic. There are 58pain relief drugs that contain oxycodone.OxyContin is simply one of three single-entity,long-acting, oxycodone drugs. There arenumerous other less potent, short–acting, oxy-codone drugs, such as Percocet, Percodan, andRoxicet that also contain nonnarcotic painrelievers such as aspirin or Tylenol. OxyContinis Purdue Pharma’s brand name drug. It’s pop-ular because it provides long-acting relief frompain for up to 12 hours, which enables pain suf-ferers to sleep through the night. Since there isno chemical test to distinguish OxyContinfrom the other oxycodone drugs, it is difficultto see how the DEA could definitively assertthat a death attributable to oxycodone is due toOxyContin and not other short-acting oxy-codone drugs. Nevertheless, the DEA counts asan “OxyContin-related death” any death inwhich oxycodone is detected without the pres-ence of aspirin or Tylenol.50

Second, if an OxyContin tablet is found inthe gastrointestinal tract of a deceased person,the DEA labels it an “OxyContin-verifieddeath,” regardless of other circumstances.Even more problematic, if investigators find

OxyContin pills or prescriptions at a crimescene, or a family member or witness merelymentions the presence of OxyContin, thedeath is also confirmed as “OxyContin-veri-fied.”51 Obviously the mere presence ofOxyContin in the system of the deceased, orthe mere mention of the drug by friends orfamily members is far from verification thatOxyContin—either alone or in conjunctionwith other factors—actually caused a prema-ture death.

Third, overdose victims tend to have multi-ple drugs in their bodies.52 Approximately 40percent of the autopsy reports of OxyContin-related deaths showed the presence of Valium-like drugs. Another 40 percent contained a sec-ond opiate such as Vicodan, Lortab, or Lorcet,in addition to oxycodone. Thirty percentshowed an antidepressant such as Prozac, 15percent showed cocaine, and 14 percent indi-cated the presence of over-the-counter antihis-tamines or cold medications. Deaths likethose could be the result of any of the drugspresent, drugs working in combination, orone or more drugs plus the effects of otherconditions, such as illness or disease. Indeed,the March 2003 issue of the Journal ofAnalytical Toxicology found that of the 919deaths related to oxycodone in 23 states over athree-year period, only 12 showed confirmedevidence of the presence of oxycodone alone inthe system of the deceased.53 About 70 percentof the deaths were due to “multiple drug poi-soning” of other oxycodone-containing drugsin combination with Valium-type tranquiliz-ers, alcohol, cocaine, marijuana, and/or othernarcotics and anti-depressants.54 That isstrong evidence that many of the deathsattributed to OxyContin by government offi-cials are not the result of unknowing painpatients who grew addicted and overdosed,but of habitual drug users who may have usedthe drug with any number of other sub-stances, any one of which could have con-tributed to overdose and death.

In the absence of opioids like OxyContin,habitual users will, in all likelihood, merelyswitch to more available drugs. However,pain patients who rely on the drug for relief

6

The new mission offered

in practicingphysicians a pool

of registered,licensed,

cooperative targets who kept

records, paidtaxes, and filledout a variety of

forms.

don’t have that option. They’re far more like-ly to suffer from the scarcity caused by theDEA’s crackdown than are the common drugabusers the agency claims it is targeting.

A final problem with the DEA’s claims of anOxyContin epidemic is the agency’s inflatedestimate of risk of death. In 2000 physicianswrote 7.1 million prescriptions for oxycodoneproducts without aspirin or Tylenol, 5.8 mil-lion of them for OxyContin.55 According to theDEA’s own autopsy data, there were 146“OxyContin-verified deaths” that year, and 318“OxyContin-likely deaths,” for a total of 464“OxyContin-related deaths.”56 That amountsto a risk of just 0.00008 percent, or eight deathsper 100,000 OxyContin prescriptions—2.5“verified,” and 5.5 “likely-related.” Even thosefigures are calculated only after taking theDEA’s troubling conclusions about causationat face value.

By contrast, approximately 16,500 peopledie each year from gastrointestinal bleedingassociated with nonsteroidal anti-inflamma-tory drugs (NSAIDs) like aspirin or ibupro-fen.57 NSAIDS aren’t as effective as opioids attreating severe, chronic pain. Both classes ofpainkillers have beneficial medical uses. Oneis also found on the black market and maylead to occasional deaths by overdose. Theother isn’t used recreationally, but causes 35times more deaths per year.

Given these numbers, all of the time, ener-gy, tax dollars, and worry expended on eradi-cating the OxyContin “threat”—not to men-tion the menace to civil liberties—seemsunfounded.

Another Bout of Drug HysteriaIn order to justify its crackdown on pre-

scription painkillers, the federal governmentwould first need to persuade the public of thethreat posed by prescription opioids. Unfor-tunately, the media has been far too willing toaccept the DEA’s claims at face value, just as ithas with previous drug “epidemics.”58

To convince the public that there is an opi-oid drug threat, the DEA compared OxyContinto crack, cocaine, and heroin, the most feareddrugs of the 1980s and ’90s. Commissioner Asa

Hutchinson testified before Congress in 2002that OxyContin delivers a “heroin-like high,”and that the drug has led to an “increase incriminal activity.”59 Many mainstream mediareports echoed these claims. Newsweek, forexample, ran a story in 2002 about “Oxybabies,”the children of pregnant women onOxyContin, who bore a striking resemblance tothe rash of “crack babies” reported in the1980s.60 The article did point out that despitestories that OxyContin abuse has “sweptthrough parts of Appalachia and rural NewEngland,” the number of documented cases ofaddicted newborns is small, “in the dozens,”and that “OxyContin, like other opiates, does-n’t appear to cause birth defects.” After citing afew anecdotal cases of newborns with somehealth problems that may or may not have beenrelated to OxyContin, reporter DebraRosenberg still ended the article by questioningwhether Oxybabies are a “blip—or an epidemicin the making.” But the article’s evidence indi-cates the former, so strongly in fact that onewonders why an article on Oxybabies was nec-essary in the first place.

Newspapers and magazines reported onthe alleged rising death toll from OxyContin,and that the outbreak in opioid abuse posed agreater threat to public health and welfarethan cocaine. Soon, arrest and overdose statis-tics were juxtaposed with OxyContin sales fig-ures, painting the grim picture of an Americanpharmaceutical company willing to peddleaddiction and death for a quick buck.

A few examples:

• Time ran a story in January 2001, report-ing that “OxyContin may succeed crackcocaine on the street.”61 In Pulaski,Virginia, OxyContin had overtaken co-caine and marijuana, Time reported, andproperty crime was up 50 percent. Policein three states reported robberies of phar-macies, as well as the homes of peopleknown to take OxyContin legitimately(how the burglars knew who was takingthe drug isn’t clear). Both of course aremeans by which OxyContin may havefound its way to the street that wouldn’t

7

Pain patients arefar more likely to suffer from thescarcity caused by the DEA’scrackdown thanare the commondrug abusers theagency claims it istargeting.

require prescriptions from a divertingdoctor. Still, the article seemed to focus onphysicians. U.S. attorney Jay McCloskeywas described in the article as a man “wag-ing a war against the doctors who writeprescriptions.”

• On February 3, 2001, US News and WorldReport published an article about the dan-ger of OxyContin under the headline“The ‘Poor Man’s Heroin.’”62 The articlefeatured Dr. John F. Lilly, a 48-year-oldorthopedist and proprietor of a pain clin-ic who was also under investigation fordiversion. Prosecutors claimed that Dr.Lilly ran a “pill mill” that supplied illegalnarcotics to addicts in the slums of theindustrial city of Portsmouth, Ohio. Locallaw enforcement officials told the maga-zine that OxyContin abuse was reachingnear-epidemic levels in rural areas. Shortlyafter Dr. Lilly opened his clinic, drug-relat-ed crimes apparently started to increase.But police also claimed that burglariesincreased 20 percent in 2000, again sug-gesting that the drug was getting to thestreet by means other than doctors’ pre-scriptions.

• On February 8, 2001, the New York Timesreported a claim by U.S. attorney JosephFamularo that at least 59 people had diedfrom OxyContin overdoses in EasternKentucky in 2000 alone.63 He said Oxy-Contin had set off a wave of pharmacyburglaries, emergency room visits, andphysician arrests. Rick Moorer, an investi-gator with the state medical examiner’soffice in Roanoke, Virginia, reported thatthere were 16 deaths in southwesternVirginia due to OxyContin in combina-tion with other drugs and alcohol.

Again, there’s simply no test to determinewhether or not OxyContin caused or con-tributed to those overdose deaths. And even ifthere were such a test, it’s just as likely the drugscame from Internet pharmacies, or home ordrug store robberies as from diverting doctors.The Times article also reported data showinghospital emergency room visits by people

“involving oxycodone” increased from 3,190 in1996 to 6,429 in 1999. The Times article doesn’tgive a source or context when it reports that“federal data” show an increase in ER visits“involving oxycodone.” But presumably, theycome from the Drug Abuse Warning Net-work—or DAWN—report, published by the U.S.Department of Health and Human Services.That report’s findings seem to mirror the num-bers in the Times.64 But the DAWN report onlycites “mentions” of oxycodone-related drugs inemergency room reports, which can includecases in which oxycodone medication hadnothing to do with why the patient came to theemergency room. In fact, in more than 70 per-cent of emergency room visits involving oxy-codone, patients mentioned the drug in con-junction with at least one other controlleddrug. Certainly, abuse of increasingly abundantoxycodone medication will lead to someincrease in emergency room visits attributablesolely to the drug. But the drug’s increasingavailability also means that it’s going to be pre-sent in more people who visit emergency roomsfor other reasons. And that more people areabusing the drug is also no reason to suspectthat corrupt physicians are the source of theproblem.

The most unfortunate effect of these kindsof stories is that they reinforce existing qualmsabout opioids. Patients, their families, andeven caretakers understandably get nervouswhen they hear “morphine,” or “opioid thera-py,” which naturally sounds a lot like “opium.”In truth, however, the medical evidence over-whelmingly indicates that when administeredproperly, opioid therapy rarely, if ever, resultsin “accidental addiction” or opioid abuse.65

Most recently, a 2005 study by researchers atthe Minneapolis VA Medical Center conclud-ed, “doubts or concerns about opioid efficacy,toxicity, tolerance, and abuse or addictionshould not be used to justify the withholdingof opioids from patients who have pain.”66

Temple pharmacology professor RobertRaffa told Time magazine, “The idea thatyour mom will go into a hospital, be exposedto morphine, and automatically become anaddict is just plain wrong.”67

8

The medical evidence

overwhelminglyindicates that

when adminis-tered properly,opioid therapy

rarely, if ever,results in

“accidental addiction” or opioid abuse.

The distinction—which seems especiallydifficult for law enforcement officials and pol-icymakers to make—is between “physicaldependence” and “addiction.” A patient inca-pacitated by pain will naturally become depen-dent on any medication that gives him relief.But that’s quite different from addiction.Opioid therapy can give patients the freedomto lead normal lives, whereas addiction ruinslives. It’s a confusion that can be tragic. Onedoctor told Time he was treating a terminallyill boy whose father didn’t want his son onmorphine because he was “afraid the boywould become an addict.” As the Time reporterwrote, “In his grief over the imminent loss ofhis son, it seems, the father failed to see theabsurdity of worrying about long-term addic-tion in a child who is dying in pain.”68

The odd thing is that well before theOxyContin hysteria and ensuing DEA campaign,many media outlets were making those samepoints and providing balanced reporting on theundertreatment of pain. The Time article notedabove came out in 1997. Also in 1997, U.S. Newsand World Report ran a 4,400-word cover story onthe plight of pain patients.69 In one passage, themagazine eloquently laid out the problem:

What is lacking is not the way to treatpain effectively but the will to do it. Fora quarter of a century, pain specialistshave been warning with increasing stri-dency that pain is undertreated inAmerica. But a wide array of social forcescontinue to thwart efforts to improvetreatment. Narcotics are the most pow-erful painkillers available, but doctorsare afraid to prescribe them out of fearthey will be prosecuted by overzealouslaw enforcers, or that they will turn theirpatients into addicts . . . . “We are phar-macological Calvinists,” says Dr. StevenHyman, director of the NationalInstitute of Mental Health.70

The authors go on to state:

But at the heart of the debate is confu-sion about what constitutes addiction

and what is simply physical depen-dence. Most people who take morphinefor more than a few days become phys-ically dependent, suffering temporarywithdrawal symptoms—nausea, musclecramps, chills—if they stop taking itabruptly, without tapering the dose.But few exhibit the classic signs ofaddiction: a compulsive craving for thedrug’s euphoric or calming effects, andcontinued abuse of the drug even whento do so is obviously self-destructive.

In three studies involving nearly25,000 cancer patients, [researcherRussell] Portenoy found that onlyseven became addicted to the narcoticsthey were taking . . . “If we called thisdrug by another name, if morphinedidn’t have a stigma, we wouldn’t befighting about it,” says [researcherKathleen] Foley.71

Even physicians can fall victim to the“addiction” versus “dependence” confusion—giving rise to yet another cause of undertreat-ment. Twenty-five percent of Texas physi-cians in one survey said they believed anypatient given opioids is at risk of addiction.72

Thirty-five percent of physicians in a 2001study said they’d never prescribe opioids on ashort-term basis, even after a thorough eval-uation, a response the survey’s researchersattributed to unfounded fears of addiction.73

Again, this despite overwhelming evidencethat properly prescribed and used opioidsrarely, if ever, lead to addiction.

“OxyContin under Fire”One of the more egregious examples of

media-induced OxyContin hysteria was DorisBloodsworth’s five-part Orlando Sentinel seriesfrom October 19–23, 2003, entitled “Oxy-Contin under Fire.”74

The Sentinel series was heavily advertisedand promoted as an exposé of the OxyContinepidemic sweeping the country. IncludingBloodsworth’s pieces, the Sentinel ran 19OxyContin-related articles and editorials thatmonth, complete with photos of victims,

9

There is a distinction—which seemsespecially difficult for lawenforcement officials and policymakers tomake—between“physical dependence” and“addiction.”

flashy layouts, and insert boxes designed toelicit maximum emotional impact. The seriesspotlighted several patients described as “acci-dentally addicted” to OxyContin. Some ofthem, Bloodsworth reported, experiencedpainful withdrawal effects. Some saw theirfamilies fall apart. Some died of overdoses orcommitted suicide. Bloodsworth alleged thatwhite males aged 30 to 60 who experienceback pain are particularly likely to becomeaddicted to OxyContin, and to eventually diefrom that addiction.75

One of the featured victims was DavidRokisky, a 36-year-old former Army Airbornesoldier and police officer living in Tampa,Florida. According to Bloodsworth, Rokiskyhad a bodybuilder’s physique, a beautifulyoung wife, a high-paying job as a computercompany executive, and a beachfront condo.Rokisky’s life was idyllic, Bloodsworth report-ed, until a doctor prescribed OxyContin totreat a minor backache. According to theSentinel, Rokisky quickly became an innocentvictim of drug addiction. He eventually losthis job and had to undergo painful detoxifica-tion.

The series also featured Gerry Cover, a 39-year-old Kissimmee, Florida, handyman andfather of three. Bloodsworth reported thatCover became an addict after a doctor pre-scribed OxyContin to relieve his pain from amild herniated disc in his back. Cover subse-quently died from an accidental overdose ofthe drug.

Bloodsworth wrote that although mem-bers of Congress and the FDA were aware of“the devastation (OxyContin) has carvedthrough Appalachia where the drug becameknown as ‘hillbilly heroin,’” neither had doneanything to slow down the epidemic. Sheblamed Purdue Pharma for aggressively mar-keting OxyContin to naïve and unscrupulousdoctors, who likewise used the drug to “boosttheir profits.”76 According to Bloodsworth,there were 573 deaths in Florida linked to oxy-codone in 2001 and 2002. By comparison,Bloodsworth reported that only 521 peopledied of heroin overdoses during the same peri-od.77 The 573 figure apparently came from the

Sentinel’s review of thousands of documents,including 500 autopsy reports by Florida’smedical examiners. The paper claimed that aremarkable 83 percent of the 247 cases ofreported drug overdose deaths over that peri-od were directly attributable to OxyContin.78

It would be difficult to overstate how muchthe Sentinel series contributed to nationwideOxyContin fears. It prompted an anti-opioidgrass-roots protest movement in Florida. Thenewspaper’s critique of lawmakers for “doingnothing” stirred emotion and legislative actionon the local, state, and national level. InNovember 2003, one month after the seriesappeared, protestors from all over the countryconverged on Florida to picket Gov. Jeb Bushand his wife, who were attending a three-dayconference on youth drug abuse in Orlando.Members of “Relatives against Purdue Pharma”carried poster-sized photos of family andfriends who allegedly died from OxyContinoverdoses.79 Victor Del Regno, a Rhode Islandbusiness executive whose 20-year-old son died,allegedly from OxyContin, told the Sentinel,“We feel there has to be a way to get the wordout about how deadly this drug can be.”80

Governor Bush and state lawmakers weresympathetic, and promised to put an end tothe “hemorrhaging of lost lives” allegedlycaused by prescription painkillers.81 Duringcongressional testimony inspired by theSentinel series and its aftermath, Florida direc-tor of drug control James McDonough praisedDoris Bloodsworth’s series, and cited her esti-mates of OxyContin overdose deaths. He saidthat in response to the Sentinel and otherreports, Florida had taken “aggressive actionagainst [diversion] criminal practices.”82

McDonough boasted that Florida lawenforcement had taken action since the Sentinelseries, including the prosecutions of Dr. JamesGraves (a former Navy flight surgeon), convict-ed on four counts of manslaughter for pre-scribing oxycodone; Dr. Sarfraz Mirza, convict-ed of trafficking in OxyContin; and Dr. MichellWich and Dr. Asuncion Luyao, convicted ofprescription overdose deaths.83

Bloodsworth’s claims about the OxyContinepidemic were picked up and repeated in news-

10

It would be difficult to over-state how much

the Sentinel series contributed to

nationwideOxyContin fears.

papers and media outlets all over the country.They were even included in a General Account-ing Office report on OxyContin abuse request-ed by Congress. GAO cited the Sentinel seriesand said that the newspaper’s investigation ofautopsy reports involving oxycodone-relateddeaths found that OxyContin had beeninvolved in more than 200 overdose deaths inFlorida since 2000.84

Thanks in large part to the Sentinel series,Florida today is one of the most difficultstates in the country for pain patients to gettreatment, and its legislature only narrowlyvoted down a bill establishing a statewidedatabase to track and monitor painkiller pre-scriptions.85

The Sentinel Series UnravelsIn February of 2004, the Orlando Sentinel

series on OxyContin began to fall apart.Investigations by Purdue Pharma and advo-cates for pain patients uncovered numerousand grievous errors in Bloodsworth’s reports.The Washington Post reported that DavidRokisky had pled guilty to drug conspiracy ina cocaine case four years previous to theseries’ publication. Far from leading an idyl-lic life wrecked by OxyContin, Rokisky in facthad a long history of domestic-abuse allega-tions and financial problems.86 “Accidentaladdict” Gerry Cover proved to be a longtimedrug abuser too, and had been hospitalizedfor an overdose on other drugs three monthsbefore he had been prescribed OxyContin.87

Bloodsworth’s misrepresentation of Oxy-Contin overdose deaths was even more egre-gious than her mischaracterizations of thealleged victims of the drug. The series com-pletely distorted the Florida medical examiners’drug overdose deaths data for 2000 and 2001.Instead of more than 570 deaths linked toOxyContin the Sentinel reported for those years,the medical examiners’ reports reveal the actualtotal for those years was 71—35 in 2001, and 36in 2002.88 The Sentinel had included not onlydeaths where oxycodone alone was present inthe system of the deceased, but also deaths inwhich any oxycodone product was present incombination with any number of other drugs.

There were 317 such deaths in 2001, and 220 in2002, giving the Sentinel its 573 deaths.89 Intruth, even those 71 overdose deaths over theSentinel’s two-year period are suspect. That’sbecause Florida’s medical examiners reportonly 14 drug groups in autopsy reports.90 It’slikely that there were any number of unreport-ed drugs in the systems of 71 people where onlyoxycodone was found, not to mention that anynumber of them might have died for reasonscompletely unrelated to drugs. For example, thedeceased may also have been taking anti-depressants, heart medication, and/or diabeticmedications, any of which could have poten-tially contributed to the cause of death. That’sparticularly likely where the deceased is over 50years of age—true of about a third of the 71Florida cases.91

After a barrage of criticism, the OrlandoSentinel finally acknowledged its errors in theseries, and in February 2004 announcedDoris Bloodsworth’s resignation from thepaper. The two editors who worked on theseries were also reassigned.92

In a front-page correction, the Sentinelwrote the following:

An Orlando Sentinel series in Octoberabout the drug OxyContin used a keystatistic incorrectly and overstated thenumber of overdoses caused solely byoxycodone, the active ingredient inOxyContin and other prescription pain-killers. . . .

In roughly three out of four cases,medical examiners concluded that atleast one other drug also contributedto the victims’ deaths. . . . .

According to the Sentinel’s re-exami-nation, blood samples in about 38 per-cent of the oxycodone-related deathsshowed the presence of heroin, cocaine,methamphetamine and/or marijuana.Many other victims also had consumedone or more commonly abused prescrip-tion drugs, such as Xanax or Vicodin.

In February, the Sentinel published astory correcting factual errors abouttwo men featured in the series. The

11

After a barrage of criticism, the OrlandoSentinel finallyacknowledged itserrors in theseries, and inFebruary 2004announced DorisBloodsworth’sresignation fromthe paper.

newspaper had labeled one of them,David Rokisky, an “accidental addict”without doing background reportingthat would have shown he had a feder-al drug conviction. The other, the lateGerry Cover, died from an overdosecaused by a combination of drugsrather than oxycodone alone.93

Despite the Sentinel’s retraction, othermedia outlets have continued to drum up theOxyContin threat, many of them making thesame errors the Sentinel did. Here are a fewexamples:

• In late August of 2004, the MontrealGazette reported that “the prescriptionpainkiller nicknamed ‘hillbilly heroin’ inthe U.S., was a contributing factor in atleast 26 overdose deaths in Quebec since1999.”94 Remarkably, the paper went onto draw the same conclusions aboutautopsy reporting as the Sentinel. TheGazette reported that “other narcoticsubstances were also detected, suggest-ing that OxyContin alone might nothave caused some deaths,” a caveat thatseverely undermines the alarming lead.

• That same month, the Ottawa Citizenreported that “in the past five years therewere 300 deaths in which oxycodone,the opiate found in OxyContin and thedrug brand Percocet, was detected in thebody.”95 That number again means verylittle when not supported with otherinformation, such as what other drugswere found in the bodies, what illnessesthe deceased were suffering from, andhow many OxyContin prescriptionswere written in comparison to those 300deaths.

• Also in August 2004, the Boston Globe rana story on federal grants coming to theBoston area that would be used to targetOxyContin abuse.96 One local officialtold the Globe, “we are going to . . . bringthe danger of OxyContin right out thereso everyone is going to know how bad itis,” and that “OxyContin use can lead to

heroin use.” A local mayor calledOxyContin “the number one health cri-sis in cities and towns at this time.”97

Despite the Sentinel fiasco, media outletscontinued to perpetuate OxyContin fears byreiterating overdose statistics based on ques-tionable science and quoting public officialswithout a bit of skepticism or any effort toelicit rebuttals from drug war critics or painpatient advocates.

Eradicating the PrescriptionPainkiller “Threat”

The DEA’s new mission to thwart thediversion of prescription painkillers was a sig-nificant undertaking, one that would requireextra manpower and resources. As part of itsOxyContin Action Plan, the agency carriedout more than 400 investigations resulting inthe arrest of 600 individuals from May 2001 toJanuary 2004. Sixty percent of those casesinvolved medical professionals, most of themdoctors and pharmacists (the remaining casescould include manufacturers and whole-salers).98

To implement its new program, the DEAparticipated in the Organized Crime DrugEnforcement Task Force and worked coopera-tively with state and local drug task forces.OCDETF combines the resources of federal,state, and local law enforcement under thecoordination of U.S. attorneys. In 2001 theDEA deputized 1,554 state and local officersfrom large and small police departmentsacross the country to coordinate prescriptiondrug investigations. In 2002, 1,172 DEASpecial Agents worked alongside 1,916 stateand local police officers in 207 separate taskforces.99 This sharing of resources significant-ly expanded the OxyContin Plan’s reach. Tosee how the task force plan gave the DEA morereach, consider drug war statistics from 1999.In that year, the DEA initiated 1,699 investiga-tions on its own but was able to extend itsinvestigative reach by working cooperativelywith state and local law enforcement officials

12

The DEA’sDiversion

Control Programis also a

self-financing,autonomous law

enforcementagency that is

largely unaccountable to

congressionaloversight.

in more than 9,000 additional task forcecases.100 The DEA also trained more than64,000 state and local law enforcement per-sonnel in 2001 at its Training Academy inQuantico, Virginia, as well as at the agency’s 22domestic field divisions throughout theUnited States.101 These task forces accountedfor 40 percent of the DEA’s prescription nar-cotics seizure and forfeiture cases.102

The DEA’s Diversion Control Program isalso a self-financing, autonomous law enforce-ment agency that is largely unaccountable tocongressional oversight. It’s mostly financedby the licenses it requires all doctors, manu-facturers, pharmacists and wholesalers to pur-chase, and in part by the assets it seizes when itraids the businesses and personal finances ofthose same licensees. Table 1 shows the break-down of the DEA’s controlled substancelicense holders as of 2002. Physicians consti-tuted 928,677 of 1,087,045 registrants, or 85percent of all those approved by the DEA toproduce, distribute, and dispense narcotics.Because prescription narcotics are legal andregulated, the DEA can easily monitor the wayphysicians prescribe them. Unlike illicit drugdealers, most physicians are law-abiding, legit-imate professionals. That also makes themeasier targets.

The DEA sets annual production quotasfor the manufacturers of narcotic drugs, andthe agency attempts to monitor the whole-sale and retail distribution of those drugs,

though with decidedly mixed results. In fact,large quantities of narcotics routinely gomissing en route from manufacturers towholesalers and from wholesalers to retailers.The DEA itself acknowledges this problem.The agency notes that there is an increase inOxyContin burglaries, thefts, and robberiesof hospitals and pharmacies throughout thecountry, including at Purdue Pharma, themanufacturer of OxyContin.103

In one recent case in Arizona, nearly475,000 tablets of narcotic drugs disap-peared from Kino Community Hospital’spharmacy between May 1, 2002, and April 30,2004.104 Drug stores in rural areas have alsobeen targets for burglars seeking OxyContin,and the Internet has become a major under-ground source for the drug.105 In an inves-tigative series, the Star-Ledger newspaper inNew Jersey actually ordered OxyContin overthe Internet, along with other prescriptionnarcotics. The paper reported no contactwith a physician, and the drugs were deliv-ered to a rented mailbox within days of plac-ing the order.106 Given the poor job the DEAis doing of monitoring the narcotics it’scharged with overseeing, and the variousways the drug apparently can move frommanufacturers and wholesalers to the blackmarket, the DEA’s blame and pursuit ofphysicians for the drug’s street availabilityseems all the more arbitrary, unjustified, andcapricious. “Pills are a problem in Southwest

13

The DEA’sattempt to blamephysicians for thedrug’s streetavailability seems arbitrary, unjustified, andcapricious.

Table 1DEA Registrant Population

Retail Level Wholesale Level

Practitioners (doctors) 928,677 Researchers 6,843

Nurse Practitioners & Analytical Labs 1,591

Physician Assistants 71,169 Narcotic Programs 1,151

Pharmacies 61,05 Distributors 876

Hospitals/Clinics 14,462 Manufacturers 453

Teaching Institutions 424 Exporters 206

Importers 136

Source: DEA Update, National Association of State Controlled Substance Authorities, Myrtle Beach, South Carolina,

October 2002.

Virginia,” one assistant U.S. attorney told theRoanoke Times in 2001, “And the only way youcan get prescription pills is to go to the doc-tor.”107 But that’s clearly not the case.

In 1993 Congress created the self-financedDiversion Control Fund, which was to be fund-ed by narcotics licensing fees. The DEA isauthorized to increase the license fees to makesure the Diversion Control Program remainsfully funded. The setup is similar to that of theHealth Care Fraud and Abuse ControlProgram, which monitors doctors for allegedfraud and abuse with respect to Medicaid andMedicare. In 2003 the DEA doubled its licensefees to pay for the cost of the program. UnderDEA rules, doctors must buy licenses for three-year periods at $131, while pharmaceuticalcompanies pay $1,605 per annum for licensesto make drugs. These licensing fees bring inabout $118 million a year. The DiversionControl Program currently costs about $154million per year. The rest of the DCP’s fundingcomes from the annual congressional budgetfor the DEA, and from the DOJ’s AssetForfeiture Fund, which is financed by seizuresof assets from doctors and pharmacists underinvestigation for drug diversion, as well as fromillicit drug dealers and users. In 2005 the DEArequested an additional $245.4 million for drugenforcement, including $32.6 million for diver-sion control.108

According to the Controlled SubstancesAct, all monies or other things of value fur-nished by any person in exchange for con-trolled substances are subject to forfeiture.109

The money from these seizures get splitbetween the law enforcement agencies mak-ing the bust, and the remainder goes to theDOJ’s Forfeiture Fund, where it’s used tocoordinate more investigations. In 2002 drugasset forfeitures totaled $441 million. And in2001 the DEA shared $179,264,498 of itsasset forfeitures with local and state policedepartments.110 The total forfeiture fund wasworth about $1.2 billion by 2002.111 The vastmajority of asset forfeiture money is distrib-uted by the DEA to state and local lawenforcement agencies who work with theagency on drug cases. It is a perverse system

that allows law enforcement officials to keepthe assets of suspected drug defendants fortheir own, local police departments.

Detective Dennis M. Luken, of the Warren-Clinton Drug and Strategic Operations TaskForce in Lebanon, Ohio, and Treasurer of theNational Association of Diversion DrugInvestigators, laid out the financial necessity oftargeting physicians for investigation at a 2003training conference for drug diversion agents.112

Luken, who worked on an asset forfeiture squadfor three and a half years, said that in an “era ofbudget cuts, forfeitures are an important way tomake up for the losses.”113 Luken said that thetask force arrests five doctors a year in theCincinnati area alone. Seizing a doctor’s assetsto supplement strained law enforcement budg-ets was a recurring theme at the NADDI train-ing conference, held in Ft. Lauderdale, Florida.Greg Aspinwall of the Miami Dade Drug TaskForce, for example, stressed the importance oftaking a task force approach to diversion inves-tigations by using the theme “spreading thelove.”114 He instructed trainees to get as manylaw enforcement agencies as possible involved ininvestigations. The method reduces costs, hesaid, and guarantees that “everybody gets theirfair cut from the forfeitures.”115 He pointed outthat even if criminal charges are never filed, apolice department can still bring a civil actionagainst a suspected doctor to recover the cost ofan investigation.

In his lecture, Detective Luken alsofocused on “drug-diverting” doctors andstressed the importance of seizing theirassets. He urged investigators to serve searchwarrants on doctors’ offices and bankaccounts and to take possession of their con-tents. If the doctor does not have a sizablebank account, Luken said, investigatorsshould look at a physician’s home or officebuilding, given that both were likely paid forwith the proceeds of drug distribution.Luken implored agents to “remember thatasset forfeiture investigation should begin atthe start of your criminal case.”116 DetectiveLuken discussed the cases of several physi-cians he had overseen and noted that investi-gators seized money and property from them

14

If criminalcharges are never

filed, a policedepartment canstill bring a civilaction against a

suspected doctorto recover the

cost of an investigation.

before they were indicted or tried for anycrime.

Luken then cited a number of cases inwhich physicians had had their assets seizedbefore ever being charged. One case he men-tioned, that of Dr. Eli Schneider, resulted inthe seizure of $220,000. Of that money, theOhio Medicaid Fraud Control Unit received$3,752, the Ohio Department of Health andHuman Services got $24,000, the CincinnatiPolice Department $29,000, the FBI $14,000,and the U.S. Department of Health andHuman Services $50,000. Calls to localauthorities and public records searches don’treveal whether or not Dr. Schneider was ulti-mately convicted. Many times, however, suchforfeitures result in plea bargains or civil set-tlements, given that the cases can drag on foryears, and asset seizure leaves the accused withno means to live, much less to pay attorney’sfees and court costs. The case of Kentuckyphysician Dr. Ghassan Haj-Hamed is a goodexample. The DEA sued Dr. Haj-Hamed in2002, accusing his clinic of diversion and drugdistribution. After more than two years, thedoctor agreed to settle, paying $17,000 andhanding over two automobiles in exchange forthe federal government dropping its suit for$133,000. Haj-Hamed’s lawyer told theKentucky Post that the government’s practice ofseizing all of a doctor’s assets, then expectinghim to fight the case, all while still payingtaxes and earning a living, “inevitably puts theperson in a position where they have to set-tle.”117 Prosecutors haven’t yet decidedwhether or not to pursue criminal charges.

Because the Diversion Control Program isself-financed, it is nearly immune from con-gressional oversight. Its administrators aren’trequired to justify its existence, its tactics, or itsefficacy when it comes time for appropria-tions. The program also creates a scenariowherein doctors are required to finance inves-tigations of their colleagues, copractitioners,or even themselves. Should the doctors’ col-leagues be investigated, law enforcement offi-cials are encouraged to seize their colleagues’assets, much of the proceeds of which then gotoward financing more investigations.

From October 1999 through March 2002,the DEA investigated 247 OxyContin diver-sion cases leading to 328 arrests.118 In 2001there were 3,097 total diversion investigations,including 861 investigations of doctors.119 In2003 the DEA investigated 732 doctors, sanc-tioned 584, and arrested 50.120 These numbersdo not include physicians investigated andarrested by the 207 DEA-deputized state andlocal task forces throughout the country.

Putting a total number on how many doc-tors, nurses, and pharmacists have been inves-tigated, charged, or convicted is difficult. TheDEA says it no longer keeps track of such sta-tistics. Some states account for physicianarrests; others don’t. Virginia, for example,says it prosecutes on average one health careprofessional per week.121 Many doctors do asDr. Ghassan Haj-Hamed did and settle beforecharges are brought—because after forfeiture,they generally have no assets left to fight thecharges.

Investigating and Apprehending PainPatients and their Doctors

The DEA defines an “addict” as “any individ-ual who habitually uses any narcotic drug so asto endanger the public morals, health, safety, orwelfare, or who is so far addicted to the use ofnarcotic drugs as to have lost the power of self-control with reference to his addiction.”122 TheDEA’s conception of an addict, then, includeswhat pain specialists call “pseudoaddicts”—painpatients who require opiates to lead a normallife. Pain specialists make an important distinc-tion between patients who depend on opiates tofunction normally—to get out of bed, tend tohousehold chores, and hold down jobs—andaddicts who take drugs for euphoria, and whoselifestyles deteriorate as a result of taking opiates,instead of improving. The DEA makes no suchdistinction. And by classifying pain patients asaddicts, the agency is able to pursue their doc-tors as “distributors.”

What’s worse, due to unwavering drug lawsmandating that possession of any controlledsubstance over a specified amount constitutesan intent to distribute, pain patients are oftenconsidered “dealers” too—even if (as is most

15

Pain specialistsmake an important distinctionbetween patientswho depend onopiates to function normally andaddicts who takedrugs for euphoria. TheDEA makes nosuch distinction.

often the case) their entire supply of prescrip-tion drugs are for their own use.

That’s exactly what happened to Floridapain patient Richard Paey.123 Paey suffers frommultiple sclerosis, as well as from injuriesincurred in a car accident and a botched backsurgery. Given the anti-drug climate inFlorida, Paey found it difficult to find a physi-cian who would prescribe the high-dose painmedication he needed to live with his injuries.So Paey turned to his old doctor in New Jersey,who wrote Paey undated prescriptions thatPaey then photocopied and filled. Though heconceded that Paey’s medication was for hisown use, Paey’s prosecutor nonethelesscharged him with “intent to distribute,”because the amount of narcotics Paey had inhis possession exceeded the limit needed to becharged with distribution. After two mistrials,Paey was convicted at a third trial. Mandatoryminimum sentencing guidelines gave a reluc-tant judge no choice but to send Paey toprison for 25 years and fine him $500,000.Today, Paey sits in a Florida prison with a mor-phine pump, paid for by Florida taxpayers.

More often, however, prosecutors use thethreat of imprisonment to get pain patients toturn in their doctors, who make better targets.And, of course, once pain patients can becalled “addicts,” the government is free to goafter the doctors who treat them as “conspira-tors” in the illegal drug trade. In the case of Dr.Hurwitz, around 15 of his more than 500 painpatients over three years were lying to him andselling the drugs he prescribed on the blackmarket. Investigators could have alertedHurwitz to his unlawful patients and askedfor his help in nabbing them—he had alreadyopenly cooperated with law enforcement,offering access to vast amounts of patientpaperwork over the course of four years.Instead, investigators continued to letHurwitz prescribe to known dealers, then lateroffered the lying patients lenient sentences inexchange for testimony against Hurwitz.124

In his speech at the NADDI conference,Detective Luken likened pain specialists toillegal drug dealers, and explained that paindoctors sell pain medication for money, sex,

or to feed their drug habits or those of fami-ly members or girlfriends—just as commondrug pushers do. Doctors in practice bythemselves and older doctors are often paint-ed by investigators as rubes, easily duped byaddicts or unable to stop freely prescribingnarcotics in the manner they did duringmore permissive times.125

To target doctors, investigators look for“red flags” they believe are indicative of poten-tially criminal behavior. These red flags aregenerally circumstantial evidence found dur-ing standard criminal investigative proce-dures. The problem with red flags is that whatmay appear to be evidence of criminal behav-ior to an investigator without medical trainingis often perfectly consistent with legitimatemedical practice, particularly in a dynamicfield like pain management. Criminal investi-gators without medical training simply aren’tqualified to tell the difference. Yet they rou-tinely make such decisions, and such closejudgment calls can cause the criminal prose-cution of an otherwise legitimate physician.

According to the DEA, the prosecution ofany given doctor is based on whether there is a“legitimate medical purpose” for a prescrip-tion he has written or whether it is “beyondthe bounds of medical practice.” But prosecu-tors concede that there are no specific guide-lines or procedures to evaluate either of thosestandards. At a Healthcare Fraud Preventionand Funds Recovery Summit in Washington,DC, in 2004, Greg Wood, a federal investigatorfor the U.S. attorney’s office in Virginia, saidthe government’s aim is to produce probablecause that a doctor (a) intentionally wrote anarcotics prescription for patients withoutlegitimate medical needs, (b) knew thepatients getting the prescriptions wereaddicts, or (c) knew the patients getting theprescriptions were selling the drugs.126 Any ofthose is sufficient for an arrest.

But even those guidelines are apparentlysubject to change without notice. The DEAcontinues to lower its evidentiary standards,making it nearly impossible for many doctorsto determine what is and isn’t permitted. InOctober 2004, the DEA disavowed the con-

16

The DEA continues to

lower its evidentiary standards,

making it nearlyimpossible for

many doctors todetermine what

is and isn’t permitted.

tents of a pamphlet it had published for paindoctors and pulled the digital version of thedocument down from its website.127 The FAQwas a working collaboration with input fromleading physicians and researchers in painmedicine that purported to give guidance topain specialists worried about the DEA’s crack-down.128 The reversal infuriated advocates forpain physicians and patients, some of whomhad worked with the DEA for several years to“strike a balance” between adequately treatingpain and preventing diversion.129 The originaldocument included such conciliatory lan-guage as, “any physician can be duped” andpointed out that patient behavior commonlythought to indicate criminal behavior couldinstead be “the possible effects of unrelievedpain.” It warned that “stereotypes of what anabuser ‘looks like’ can harm legitimate patientsbecause people who abuse prescription medi-cine exhibit some of the same behaviors aspatients who have unrelieved pain.”130 Thepamphlet also made clear that DEA red flags,such as prescribing prescription narcotics topatients with a history of drug abuse or notreporting patients whom physicians suspect ofabusing pain medication, are not in violation offederal law. Most notably, the pamphlet explic-itly stated, “For a physician to be convicted ofillegal sale, the authorities must show that thatthe physician knowingly and intentionally pre-scribed or dispensed controlled substancesoutside the scope of legitimate practice.”131

The DEA took the extraordinary step ofdisavowing the document, just as lawyers forDr. William Hurwitz, the pain specialist ontrial for diversion in Virginia, attempted tointroduce the pamphlet as evidence at his trial.Hurwitz’s prosecutors objected, and a federaljudge decided in favor of the prosecutors, rul-ing that the DEA guide did not carry the forceof law, and therefore was not admissible.132

The DEA later explained that it disavowedthe pamphlet because of language at oddswith the DEA’s insistence that they are notbound by any standard of evidentiary require-ment to commence an investigation, includ-ing the well-established principle in federallaw that the enforcement of the Controlled

Substances Act should in no way interfere theethical practice of medicine. The DEA’s expla-nation noted that “the Government can inves-tigate merely on suspicion that the law is beingviolated, or even just because it wants assur-ances that it is not.’’133 The statement went onto repudiate whole passages from the originalpamphlet, and said the agency would contin-ue its red flag system of deciding which paindoctors to investigate. Those red flags in theinterim policy statement include the numberof tablets a doctor prescribes to his patients,the practice of writing more than one pre-scription for a patient on the same day,marked for later dispensing, and using “streetslang” rather than medical terminology whendiscussing pain medication with patients.134

All, incidentally, were dismissed by the DEA’soriginal pamphlet as reasons in and of them-selves to launch a criminal investigation.

The DEA’s move caused three professionalassociations of pain management specialiststo take the unusual step of sending a letter tothe DEA calling its decision “an unfortunatestep backward” that encourages a return to“an adversarial relationship between [doctors]and the DEA.”135

The DEA’s disavowal of its pamphlet wasalso enough to push into action state offi-cials increasingly alarmed by the agency’spursuit of physicians. In January of 2005 theNational Association of Attorneys Generalsent a letter to the DEA expressing the orga-nization’s concern about the DEA’s morestrident approach to fighting diversion.Thirty state attorneys general signed the let-ter, which said, in part,

Having consulted with your Agencyabout our respective views, we weresurprised to learn that DEA has appar-ently shifted its policy regarding thebalancing of legitimate prescription ofpain medication with enforcement toprevent diversion, without consultingthose of us with similar responsibilitiesin the states. . . .

The Frequently Asked Questions andAnswers for Health Care Professionals

17

In January of2005 the NationalAssociation ofAttorneysGeneral sent a letter to the DEAexpressing theorganization’sconcern aboutthe DEA’s morestrident approachto fighting diversion.

and Law Enforcement Personnel issuedin 2004 appeared to be consistent withthese principles, so we were surprisedwhen they were withdrawn. The InterimPolicy Statement, “Dispensing of Con-trolled Substances for the Treatment ofPain,” which was published in theFederal Register on November 16, 2004,emphasizes enforcement, and seemslikely to have a chilling effect on physi-cians engaged in the legitimate practiceof medicine. As Attorneys General haveworked to remove barriers to quality carefor citizens of our states at the end of life,we have learned that adequate painmanagement is often difficult to obtainbecause many physicians fear investiga-tions and enforcement actions if theyprescribe adequate levels of opioids orhave many patients with prescriptionsfor pain medications.136

The end result of these procedures is thatinvestigators and prosecutors without med-ical training are now in the position of inter-preting whether or not a suspected physician’sactions are consistent with traditional medicalpractice or worthy of an investigation. The redflag system is meant to aid them in that deci-sion. At the July 2003 NADDI conference,investigators were told what practices—or redflags—might indicate criminal behavior. Theseincluded

• Long lines of patients waiting to see doc-tors.

• Patients who are poorly dressed.• Out-of-state automobile licenses in doc-

tors’ parking lots.• Patients who arrive and are taken with-

out appointments.• Patient visits lasting less than 25 min-

utes.• Doctors who are licensed to practice in

more than one state.• Doctors who dispense large amounts of

narcotics from one office.137

One of the many problems with the redflag system is that investigative bodies use

invasive procedures to uncover red flags. TheNational Association of Drug DiversionInvestigators, for example, instructs cops toconduct video surveillance of doctors’ officesas if they were “crack houses.”138 Investigatorshave also picked through trash at doctors’offices and private residences. Employees ofsuspected doctors have been interviewed attheir homes. Police have sought out disgrun-tled former employees who might incriminatetheir former employers.139

The relationship between a doctor and hispatient is crucial to the proper assessment andtreatment of the patient’s condition. TheDEA’s aggressive investigative procedures poi-son that relationship from both sides. Painpatients have been asked to testify againsttheir doctors. Pain patient advocacy groupsreport patients being accosted in the parkinglots of their physicians’ offices. These kinds ofprocedures threaten to make some doctorssuspicious of every patient they see—evenlongtime patients—a situation further compli-cated by the DEA’s disavowing its guidelinespamphlet. Doctors and patients are thenforced to play a game. Patients must negotiatebetween indicating enough pain to their doc-tors to warrant more medication, but to avoidappearing desperate—one sign doctors aresupposed to look for in identifying divertingpatients. Some patients simply stop reportingpain and suffer silently, for fear of becomingburdensome.140 One study published in theJournal of Clinical Oncology found that whenasked to match their patients’ pain intensityon a scale of 1 to 10, 35 percent of physiciansfailed to match their patients’ descriptionswithin two points.141 It’s now not at all clear todoctors at what point they’re legally obligatedto report a patient they suspect of divertingprescribed medication.

One pain patient and mother of three toldher local newspaper, “Doctors and nurses lookat you different if they know the medicationsyou are on. They flag your file and view you asan addict.”142 Pain specialists at a professionalconference in Tucson, Arizona, advised doc-tors to install security cameras, mandate urinetests, and frisk patients upon entering their

18

The DEA’s aggressive

investigative procedures poison the

doctor-patientrelationship from

both sides.

offices to ensure they weren’t bringing insomeone else’s urine—all to ensure that thepatients weren’t lying to them and protect thedoctors from prosecution down the line.143 “Ihave to be a detective,” a Tennessee doctor toldthe Wall Street Journal.144 One of Dr. Hurwitz’spatients told the Washington Post thatHurwitz’s treatment saved his life and wasworried what he’d do when Hurwitz lost hislicense. He found another doctor, but onlyafter considerable searching. Even then, “theytreat me like a criminal,” he said. “I only get aone-week supply at a time, and sometimes Ihave to wait for hours at the pharmacy. Andthe pharmacist who fills my prescriptions isthe only one in town who will do it, so if hegoes, then I’m finished.”145

The DEA has also set up a hotline to reportdoctors whom patients suspect of overprescrib-ing, an odd move that further complicates thedoctor-patient relationship.146 Common sensesuggests that people posing as pain patients toillegally divert narcotics or pain patients gettingexcessive pain medication prescribed to themare least likely to report their doctors to theDEA. Conversely, it isn’t difficult to see how alegitimate pain patient dissatisfied with howmuch medication he has been prescribed mightbe tempted to report his doctor out of spite.

Investigators have also sent undercoveragents, typically from sheriffs’ departments, topose as pain patients with fake insurance cards.Agents schedule appointments over the phoneand carefully document everything that hap-pens during office visits. They make audio and,when possible, video recordings of everythingthat transpires. Undercover agents tend to befemale—investigators believe women are lessthreatening, less suspicious, and more likely toelicit sympathy from doctors. Agents makenumerous visits to doctors’ offices to befriendstaff members and win their trust. They thenattempt to accumulate incriminating evidenceagainst the doctors. They are instructed toengage in informal, personal conversation witha “target” and his employees. Once an under-cover agent wins the trust of a doctor and hisstaff, she is instructed to begin looking formore red flags. These additional red flags have

included

• A doctor who told a pain patient wherehe could get his prescriptions filled.

• A physician who asked his patientswhich drugs they prefer and whichdosage worked best for them.

• Doctors who prescribed the same drugin the same dosage to many patients,including to more than one member ofthe same family.147

These aggressive procedures haven’t alwaysbeen the norm. University of Florida professorof pharmacy and lawyer David Brushwoodtold one newspaper that doctors once had amore cordial, cooperative relationship withinvestigators.

“Five years ago, if law enforcement saw aproblem beginning to develop—say a doctor orpharmacist dispensing in ways they thoughtwere problematic—they would very early on goto the doctor or pharmacist and say, ‘We thinkthere’s a problem here.’ By the same token,physicians or pharmacists felt comfortable call-ing law enforcement and saying, ‘Somethingstrange is going on. Come help us out.’ It was aculture of the early consult. The early consult isgone,” Brushwood said.148

Brushwood also noted that many times,investigators will wait for more problematicsituations to develop in an effort to have moreevidence with which to go after a doctor. Lawenforcement officials “watch as a small prob-lem becomes a much larger problem. Theywait, and when there is a large problem thatcould have been caught before it got large,they bring the SWAT team in with bulletproofvests and M16s, and they mercilessly enforcethe law. They’ll come in with charges on mul-tiple counts. Murder, manslaughter, 350counts of drug diversion. Many of which aroseafter they first discovered it, when it was asmall problem,” Brushwood said.149

Because doctors are now being prosecutedfor not adequately discerning the motivesand intentions of their patients, painpatients know that doctors will be lookingthem over for signs of abuse, so many strate-

19

Professor DavidBrushwood saysthat doctors once had a morecordial, cooperative relationship withinvestigators.

gically underreport or overreport their pain,depending on how much medication theyhave, how much they think they need, andhow suspicious they believe a doctor to be oftheir motives. Doctors have no choice but togive extra scrutiny to everything a patientsays, not just out of a desire to keep a patientfrom hurting himself or diverting drugs tothe black market, but because the patientmay be an undercover cop. Even longtimepatients can be duped by police into turningin their doctors under threat of arrest.

A doctor’s billing practices can also triggera red flag. Investigators have contacted pri-vate insurance companies’ fraud units as wellas those within Medicare and Medicaid. Theycomb records to find more potential redflags for a suspected doctor. Investigatorshave also obtained the prescription purchasereports gathered by the DEA from pharma-ceutical companies to track a suspectedphysician’s prescribing history.150

The case of Dr. William Hurwitz is again anexcellent example. He was prosecuted in 2004as part of a two-year DEA operation called“Cotton Candy” (for OxyContin) involvingbetween 60 and 80 doctors, pharmacists, andpatients. Hurwitz was eventually charged with“conspiring to traffic drugs, drug traffickingresulting in death and serious injury, engagingin a criminal enterprise, and health carefraud.”151 He was arrested at his home by 20armed agents in the presence of his two youngdaughters. Investigators seized his assets,including his retirement account, jailed him,and imposed a $2 million bond.152 Hurwitz waseventually convicted, essentially of beingunknowingly duped by pain patients who latersold his prescriptions.153 The jury’s foremantold the Washington Post that Hurwitz was “slop-py,” “a bit cavalier,” and that, “no, he wasn’t run-ning a criminal enterprise.” Yet the jury convict-ed Hurwitz of “conspiracy to distribute con-trolled substances and trafficking resulting indeath and serious injury.”154 In April 2005Hurwitz was sentenced to 25 years in prisonand fined $1 million.155

The DEA now insists that prosecutors donot have to prove a doctor’s malicious intent

or desire to profit from narcotics diversion tosecure a conviction.156 In fact, it’s not evennecessary for the government to have expertmedical testimony that a doctor’s actionswere illegitimate or outside the usual courseof professional practice. The DEA believes itcan bring charges against doctors even if theynever actually distributed drugs or their pre-scriptions were never actually filled. In fact,there seems to be no evidentiary standard atall that doctors can rely on to thwart a con-viction.157

Perhaps no case illustrates the injustice ofaggressive law enforcement tactics betterthan that of Dr. Frank Fisher.158 Fisher was aHarvard-trained physician whose Californiapractice served about 3,000 patients, most ofthem rural and poor. About 5–10 percent ofFisher’s cases were pain patients. In 1999, thepolice arrested Fisher and charged him withmultiple counts of fraud and drug diversion.More notably, Fisher was originally chargedwith several counts of murder. State prosecu-tors attempted to make the case that Fisher’soverprescribing of narcotics made him crim-inally culpable for the deaths of a painpatient who died in an unrelated automobileaccident, a man who received narcotics afterthey had been stolen from the home of one ofhis patients, and a patient who died after herprescription ran out and Dr. Fisher hadalready been arrested and imprisoned. Fisherwas further besmirched in the press.Prosecutors described him as a “mass mur-derer” and common drug pusher who addict-ed thousands of Californians to prescriptionpainkillers.

Upon his arrest, all of Dr. Fisher’s assetswere seized, and he was held on $15 millionbond. It took just a 21-day preliminary hear-ing for a judge to dismiss the murder chargesand lower the bail, releasing Dr. Fisher fromprison. It took another four years to dismissthe remaining felony charges, including fraudand manslaughter. Finally, in May of 2004, ajury acquitted Fisher of the remaining misde-meanor charges. One juror described the pur-suit of him as a “witch hunt.” Fisher spent fivemonths in jail, lost all of his assets and—at the

20

There seems to be no evidentiary

standard at allthat doctors can

rely on to thwarta conviction.

age of 50—was forced to move in with hiselderly parents.

Conclusion

The government is waging an aggressive,intemperate, unjustified war on pain doctors.This war bears a remarkable resemblance tothe campaign against doctors under theHarrison Act of 1914, which made it a crimi-nal felony for physicians to prescribe nar-cotics to addicts. In the early 20th century,the prosecutions of doctors were highly pub-licized by the media and turned public opin-ion against physicians, painting them not ashealers of the sick but as suppliers of nar-cotics to degenerate addicts and threats tothe health and security of the nation.

Since 2001 the federal government has sim-ilarly accelerated its pursuit of physicians it saysare contributing to the alleged rising tide of pre-scription drug addiction. By demonizing physi-cians as drug dealers and exaggerating thehealth risks of pain management, the federalgovernment has made physicians scapegoatsfor the failed drug war. In that they are general-ly legitimate, well-meaning professionals whokeep accurate records, pain physicians also pre-sent a better target than underground, black-market drug dealers for a DEA that has beensubject to increasing criticism from Congressand the Department of Justice for its inabilityto measurably reduce the domestic drug sup-ply. Even worse, the DEA’s renewed war on paindoctors has frightened many physicians out ofpain management altogether, exacerbating analready serious health crisis—the widespreadundertreatment of intractable pain. Despite theDEA’s insistence that it’s not pursuing “good”doctors, it isn’t hard to see how rhetoric fromlaw enforcement officials and prosecutorswould make doctors think otherwise.Hurwitz’s prosecutor, for example, promised toroot out bad doctors “like the Taliban.”159

Another assistant U.S. attorney said, upon thesentencing of one doctor to eight years inprison for having worked for 57 days at a painclinic: “I believe and I hope that this case has

sent a clear message to the medical communitythat they need to be sure the controlled sub-stances they prescribe are medically necessary. Ifdoctors have a doubt about whether they couldget in trouble, this case should answer that”—astatement that implores doctors to err on theside of undertreatment.160

It isn’t hard to see how all of this wouldmake it more difficult for pain patients to findtreatment. “You worry every day that the med-icine won’t be available for much longer,” onepatient told the Village Voice, “or your doctorwon’t be there tomorrow because he’s beenarrested by the DEA.”161 One doctor flatly toldthe Wall Street Journal, “I will not treat painpatients ever again.”162 Still another told Timemagazine, “I tend to underprescribe instead ofusing stronger drugs that could really help mypatients. I can’t afford to lose my ability tosupport my family.” The Voice also reports thatmany medical schools now “advise studentsnot to choose pain management as a careerbecause the field is too fraught with potentiallegal dangers.”163

The most obvious (though least likely)course of action to address these problemswould be for Congress to end the costly,regrettable War on Drugs. Barring that, thebest way for law enforcement officials to bat-tle the problem of diversion would be tocombat the theft of the drugs from ware-houses, manufacturing facilities, and enroute to pharmacies. More importantly, theDEA, DOJ, Congress, and state and localauthorities should end the senseless persecu-tion of doctors and allow them to pursuewhatever treatment options they feel are inthe best interests of their patients, free fromthe watchful eye of law enforcement.

NotesThe author would like to thank the CatoInstitute’s Radley Balko for his assistance in edit-ing and researching this paper.

1. Carl T. Hall, “Living in Pain Addiction,” SanFrancisco Chronicle, April 5, 1999, p. A1.

2. American Pain Foundation, “Voices of People

21

The DEA’srenewed war onpain doctors hasfrightened manyphysicians out of pain managementaltogether, exacerbating analready serioushealth crisis—thewidespreadundertreatmentof intractablepain.

with Pain,” http://www.painfoundation.org/page.asp?menu=1&item=3&file=voices/intro.htm.

3. American Pain Foundation, “Talking Points onPain,” AMNews, September 23–30, 2002, p.1, http://www.painfoundation.org/print.asp?file=PCPA2003_Points.htm.

4. Walter F. Stewart et al., “Lost Productive Timeand Cost Due to Common Pain Conditions in theUS Workforce,” Journal of the American MedicalAssociation 290 (2003): 2443–54.

5. American Pain Foundation, “Talking Points onPain,” September 2004, http://www.painfoundation.org/print.asp?file=PCPA2003_Points.htm.See also Wisconsin Medical Society, “Guidelinesfor the Assessment and Management of ChronicPain,” Wisconsin Medical Journal 103, no. 3, p. 16.

6. Joanne Wolfe, Holcome E. Grier, Neil Klar, SarahB. Levein et al., “Symptoms and Suffering at theEnd of Life in Children with Cancer,” New EnglandJournal of Medicine 342 (February 2000): 326–33,http://content.nejm.org/cgi/content/short/342/5/326.

7. Hall, “Living in Pain Addiction.”

8. American Medical Association, “Patients FaceNumerous Barriers to Receiving Appropriate PainTreatment,” news release, July 1997.

9. Amy J. Dilcher, “Damned If They Do, Damned IfThey Don’t: The Need for a Comprehensive PublicPolicy to Address the Inadequate Management ofPain,” Annals of Health Law 13 (Winter 2004): 81–144.

10. Personal communication with Dr. DavidHaddox, November 11, 2004. See also Dow JonesNewswires, “FDA Panel: OxyContin’s ApprovalShouldn’t Be Limited,” September 9, 2003. Fourprofessional boards of medicine offer certificationin pain management. As of November 2004, therewere 5,869 physicians certified in pain medicine,not all of whom prescribe opiates for the treatmentof chronic pain. The boards and the number ofdoctors certified are as follows: The AmericanBoard of Anesthesiology (ABA)—3,127; AmericanBoard of Pain Medicine (ABPM)—1,768; AmericanBoard of Physical Medicine and Rehabilitation(ABPMR)—875; American Board of Psychiatry andNeurology (ABPN)—99. Data compiled from per-sonal communications with Kris Haskins (ABPM)on November 11, 2004; Steve Glick (ABPN) onNovember 17, 2004; Joseph McClintock (ABA) onNovember 22, 2004; and Donna Morris, (ABPMR)on November 17, 2004.

11. Fred Schulte, “Deaths Mount as Doctors,Pharmacists and Patients Abuse the MedicaidSystem,” Orlando Sun-Sentinel, November 30,

2003, p. 1.

12. Stephen P. Long, “Pain-Politics and PublicPerception: Virginia’s Experience,” Ramifications14, no. 2, p. 4.

13. Hall, “Living in Pain Addiction.”

14. Karsten F. Konerding, “Why Pain?” Ramifications14, no. 2, p.1.

15. Stephen D. Rosenthal, “The Legal Issues: Howthe Courts See Pain Management,” Ramifications14, no. 2, p. 4. See also Associated Press, “DoctorDisciplined for Lack of Aid,” September 3, 1999,and Bergman v. Eden Medical Center, No. H205732-1 (Alameda County Ct., June 13, 2000).

16. “OxyContin Special,” Drug Enforcement Agency 1(2001): 3, 9. See also Asa Hutchinson, administrator,Drug Enforcement Administration, Testimonybefore the House Committee on Appropriations,Subcommittee for the Depart-ments of Commerce,Justice, State, the Judiciary and Related Agencies,March 20, 2002; Domestic Strategic IntelligenceUnit (NDAS), Office of Domestic Intelligence, incoordination with Office of Diversion Control ofthe Drug Enforcement Administration, March2002, p. 4.

17. See, for example, Eric Fleischer, “Doctors:Patient Care Losing to War on Drugs,” DecaturDaily, October 26, 2003 (“Almost any doctor in thestate could prescribe the one class of chemicals thatcould ease Paul’s pain, but many are afraid to do so. . . The result is an increasing number of medicalpractices displaying signs that say ‘No OxyContinprescribed here’); and Tanya Alberts and DamonAdams, “OxyContin Crackdown Raises Physician,Patient Concerns,” Amednews.com, AmericanMedical Association, June 25, 2001.

18. David E. Weissman et al., “Wisconsin Physicians’Knowledge and Attitudes about Opioid AnalgesicRegulations,” Wisconsin Medical Journal 90 (1991): 671.

19. Michael Potter et al., “Opioids for ChronicNonmalignant Pain: Attitudes and Practices ofPrimary Care Physicians in the UCSF/StanfordCollaborative Research Network,” Journal ofFamily Practice (2001): 148.

20. David Brushwood, “Maximizing the Value ofElectronic Monitoring Programs,” Journal of Law,Medicine and Ethics 31 (2003): 41 and note 13.

21. Marc Kauffman, “Worried Pain DoctorsDecry Prosecutions,” Washington Post, December29, 2003.

22. David F. Musto, The American Disease: Origins ofNarcotic Control (New York: Oxford University

22

Press, 1999), pp. 1–23.

23. H. H. Kane, The Hypodermic Injection of Morphia,Its History, Advantages, and Dangers, as discussed byEdward M. Brecher and the editors of ConsumerReports Magazine, 1972, http://216.239.41/search?q=cache:HEPOU8XULTAJ:www.drugtext.org/library/reports.

24. Kurt Hohenstein, “Just What the DoctorOrdered: The Harrison Anti-Narcotic Act, theSupreme Court, and the Federal Regulation ofMedical Practice, 1915–1919,” Journal of SupremeCourt History; David F. Musto, “Physicians’ Attitudestoward Narcotics,” Advances in Pain Research andTherapy, vol. 11, edited by C. S. Hill Jr. and W. S. Fields(New York: Raven Press, 1989), pp. 51–59.

25. The Harrison Narcotics Act (1914), PL. 223,63rd Congress, December 17, 1914.

26. Harry G. Levine, “The Secret of Worldwide DrugProhibition,” The Independent Review 7, no. 2 (Fall2002): 3. See also Eric Sterling, “Drug Policy Failureat Home,” http://www.lightparty.com/foreignPolicy/DrugPolicyFailureATHome.html.

27. Hohenstein, p. 253. See also Musto, 1999, pp.181–82.

28. Musto, 1999, p. 121.

29. Rufus B. King, The Drug Hang-Up: America’s Fifty-Year Folly, 2nd ed. (Springfield, Illinois: Charles C.Thomas, 1972); and “The Narcotics Bureau andthe Harrison Act: Jailing the Healers and the Sick,”Yale Law Journal 195, pp. 784–87.

30. Hohenstein:, p. 245.

31. Edward Jay Epstein, Agency of Fear: Opiates andPolitical Power in America (New York: Verso, 1977),p. 104.

32. Musto, 1999, note 6, p. 368; and TreasuryDepartment, “Hearings before the House Appropri-ation Committee,” Appropriation Bill 1930,November 23, 1928, p. 473.

33. King, p. 786.

34. Musto, 1999, pp. 59, 67, and 211.

35. Musto, 1999, p. 255; The ControlledSubstances Act is Title II of the Drug AbusePrevention and Control Act of 1970. TheControlled Substances Act initiated the War onDrugs, and started a national campaign againstillicit drugs and associated crime. The CSA gavethe Bureau of Narcotics and Dangerous Drugsthe authority to regulate legal prescription drugs.When the Drug Enforcement Agency was created

in 1973, it acquired the BNDD’s authority.

36. United States v. Moore, 423 U.S. 122, 124 (1975).

37. The Controlled Substances Act created fivecategories of drugs based on their approved med-ical use and the potential to addict patients.Schedule I drugs, such as heroin and marijuana,have no approved medical use and were said tohave a high potential for addiction. They areauthorized for medical research only. Schedule IIdrugs are narcotics and nonnarcotics such ascocaine, methadone, oxycodone, and OxyContin.They also include nonnarcotic drugs such asamphetamines and barbiturates that areapproved for medical use but have the highestaddictive potential. Schedules III, IV, and Vinclude narcotics combined with nonnarcoticdrugs, such as codeine and aspirin, and caffeineand mild depressants, and tranquilizers that havea low risk of addiction.

38. “DEA Mission Statement,” Drug EnforcementAdministration, www.dea.gov/agency/mission.htm.

39. “Drug Control, DEA’s Strategies and Operationsin the 1990s,” GAO/GGD-99-108, July 1999, pp. 7,61, 72–73, 78 (Washington: General AccountingOffice, July 1999).

40. U.S. Department of Justice, “Status ofAchieving Key Outcomes and Addressing MajorManagement Challenges,” June 2001.

41. “Review of the Drug Enforcement Administra-tion’s (DEA) Control of the Diversion ofControlled Pharmaceuticals,” The DrugEnforcement Admini-stration, September 2002,http://www.usdoj.gov/oig/inspection/DEA/0210/Memo.htm.

42. U.S. Department of Justice, DrugEnforcement Administration, “Action Plan toPrevent the Diversion and Abuse of OxyContin,”2001; U.S. Department of Justice, DrugEnforcement Administration, “DEA-IndustryCommunicator: Oxy-Contin Special,” vol. 1.

43. Ibid.

44. Ibid.

45. Josh White and Marc Kaufman, “U.S. ComparesVa. Pain Doctor to ‘Crack Dealer,’” Washington Post,September 30, 2003, p. B-3.

46. Statement of Asa Hutchinson, administrator,Drug Enforcement Administration before theUnited States Senate Caucus on InternationalNarcotics Control, Executive Summary, April 11,2002, www.dea.gov/pubs/cngrtest/ct041102p.html.

23

47. Ibid, pp. 1, 3–4.

48. U.S. Department of Justice, Drug EnforcementAdministration, Diversion Control Program,“Summary of Medical Examiner Reports onOxycodone-Related Deaths,” May 16, 2002, www.deadiversion.usdoj.gov/drugs_concern/oxycodone/oxycotin7.htm.

49. Ibid., p. 4.

50. Ibid., pp. 1–2.

51. Ibid., p. 2.

52. Ibid.

53. Cone et al., “Oxycodone Involvement in DrugAbuse Deaths: A DAWN-Based ClassificationScheme Applied to an Oxycodone PostmortemDatabase Containing over 1000 Cases,” Journal ofAnalytical Toxicology 27, no. 2 (March 2003): 57–67.This study was funded by Purdue Pharma, manu-facturer of OxyContin but was subjected to thenormal peer review process.

54. Ibid.

55. Drug Enforcement Administration, May 16,2002, p.1.

56. Ibid, p. 4.

57. G. Singh, “Recent Considerations in NonsteroidalAnti-inflammatory Drug Gastropathy,” AmericanJournal of Medicine 105, no. 1B (1998): 31S–38S.

58. Mike Gray, Drug Crazy (New York: Routledge,1988). See also Epstein.

59. Asa Hutchinson, Statement Before the HouseCommittee on Appropriations, Subcommittee onCommerce, Justice, State, and Judiciary, December11, 2001, p.1; Hutchinson, April 11, 2002, p. 1.Congressional testimony before the HouseCommittee on Appropriations Subcommittee forthe Departments of Commerce, Justice, State, theJudiciary and Related Agencies, March 20, 2002.

60. Debra Rosenberg, “Oxy’s Offspring,”Newsweek, April 22, 2002, p. 37.

61. Timothy Roche, “The Potent Perils of a MiracleDrug: OxyContin Is a Leading Treatment forChronic Pain, but Officials Fear It May SucceedCrack Cocaine on the Street,” Time, January 8,2001, p. 47.

62. Gary Cohen, “The Poor Man’s Heroin,” U.S.News and World Report, February 12, 2001, p. 27.

63. Francis X. Clines with Barry Meier, “Cancer

Painkillers Pose New Abuse Threat,” New YorkTimes, February 9, 2001, p. A21.

64. Department of Health and Human Services,“Oxycodine, Hydrocodone, and Polydrug Abuse,2002,” The DAWN Report, July 2004.

65. See J. Porter and H. Jick, “Addiction Rare inPatients Treated with Narcotics,” New EnglandJournal of Medicine 302, no. 2 (1980): p. 123; J. L.Medina, S. Diamond, “Drug Dependency inPatients with Chronic Headaches,” Headache 17, no.1 (1977): 12–14. This survey of patients treated at alarge headache center during 11 months could onlyidentify three problem cases (two codeine abusersand one propoxyphene abuser) among the 2,369patients who had access to opioid analgesics. D. E.Moulin et al., “Randomized Trial of Oral Morphinefor Chronic Noncancer Pain,” Lancet 347 (1996):143–47. This study used a cross-over design to com-pare the opioid against a placebo (benztropine) toensure blinding of the therapy. The study evaluateda broad range of outcomes related to subjectiveeffects and function. The results demonstrated a sig-nificant reduction in pain during morphine therapy,without change in physical or psychological func-tioning, and without evidence of psychologicaldependence or aberrant drug-related behavior.

66. “Opioids Safely Curb Chronic Back Pain:Study,” Reuters, February 23, 2005.

67. Christine Gorman, “The Case for Morphine,”Time, April 28, 1997.

68. Ibid.

69. Shannon Brownlee, Joannie M. Schrof, BethBrophy, and Mary Brophy Marcus, “The Qualityof Mercy,” U.S. News and World Report, March 17,1997, Ibid., http://www.usnews.com/usnews/culture/articles/970317/archive_006482.htm.

70. Ibid., http://www.usnews.com/usnews/culture/articles/970317/archive_006482.htm.

71. Ibid., http://www.usnews.com/usnews/culture/articles/970317/archive_006482_4.htm.

72. Sharon M. Weinstein et al., “Physicians’Attitudes toward Pain and the Use of OpioidAnalgesics: Results of a Survey from the TexasCancer Pain Initiative,” Southern Medical Journal 93,no. 5 (2000): 479–87.

73. Potter et al., pp. 147–48.

74. Doris Bloodsworth, “OxyContin under Fire,”Orlando Sentinel (five-part series) October 19–23,2003; Doris Bloodsworth, “Pain Pill Leaves DeathTrail: A Nine-Month Investigation Raises ManyQuestions about Purdue Pharma’s Powerful Drug

24

OxyContin,” Orlando Sentinel, October 19, 2003.

75. Dan Tracy and Jim Leusner, “OrlandoSentinel Finishes Report about OxyContinArticles,” Sun Herald, February 21, 2004, p. 2.

76. Quoted in Doris Bloodsworth, “FDA Urged toGet Tougher on OxyContin Maker,” OrlandoSentinel, November 19, 2003, p. 3.

77. Ibid.

78. Ibid.

79. “Congress Tackles OxyContin: Legislators’ 1stHearing Will Be in Orlando in February,” OrlandoSentinel, December 5, 2003, p.2.

80. Doris Bloodsworth, “Crowd Protests DrugMaker: Dozens Who Had Lost Relatives andFriends to OxyContin Overdoses Braved the RainOutside an Orlando Resort to Rally AgainstManufacturer Purdue Pharma,” Orlando Sentinel,November 20, 2003, p. 3.

81. Ibid.

82. James R. McDonough, “Testimony of James R.McDonough before the Government ReformCommittee, House Subcommittee on CriminalJustice, Drug Policy and Human Resources,”February 9, 2004.

83. Ibid.

84. General Accounting Office, “OxyContinAbuse and Diversion and Efforts to Address theProblem,” December 2003 (GAO-04-110, p. 10).

85. Mark Hollis, “Privacy Fears Kill FloridaPrescription Database,” Orlando Sentinel, May 1,2004, p. A14.

86. Howard Kurtz, “After OxyContin Series: ADelayed Reaction,” Washington Post, February 16,2004, p. C01.

87. Tracy and Leusner, p. 1.

88. Florida Department of Law Enforcement, “2001Report of Drugs Identified in Deceased Persons byFlorida Medical Examiners,” April 2001, p. 11, and“2002 Report of Drugs Identified in DeceasedPersons by Florida Medical Examiners,” June 2002,p. 6.

89. Ibid.

90. The state medical examiners collected data onthe following drugs: ethyl alcohol, benzodiazepine,cannabinoids, cocaine, gamma hydroxybutyrate(GHB), heroin, hydrocodone, oxycodone, keta-

mine, methadone, methylated amphetyamines,nitrous oxide, phencyclidine (PCP), and Rohypnol(flunitrazepam), “2002 Report of Drugs,” p. i.

91. “2001 Report of Drugs,” p. 12; and “2002Report of Drugs,” p. 7.

92. “Orlando Sentinel Reporter Resigns, TwoEditors Reassigned in OxyContin Story Fallout,”Orlando Business Journal, February 27, 2004, p. 1.;Trevor Butterworth, “The Great OxyContin Scare,”AlterNet: DrugReporter, August 30, 2004, p. 1.

93. “Sentinel Overstated Deaths Caused Solely byOxycodone,” Orlando Sentinel, August 1, 2004.

94. Aaron Derfel, “Painkiller Linked to OverdoseSuicides: Drug Nicknamed ‘Hillbilly Heroin.’Coroners Draft National Alert after Jump inDeaths Involving Popular Oxycontin,” MontrealGazette, August 30, 2004, p. A7.

95. Veronique Mandal and Rob Antle, “‘HillbillyHeroin’ Target of Alert: Oxycontin Blamed for250 Deaths in Ontario,” Ottawa Citizen, August 4,2004, p. A4.

96. John Laidler, “Grants to Help Combat DrugUse,” Boston Globe, August 8, 2004, p. 1.

97. Ibid.

98. Statement of Thomas W. Raffanello, SpecialAgent in Charge, Miami Division, U.S. DrugEnforcement Administration, before the U.S. Houseof Representatives Committee on GovernmentReform, Subcommittee on Criminal Justice, DrugPolicy and Human Resources, February 9, 2004, p. 4.

99. Hutchinson, April 11, 2002, Executive Summary.

100. Appendix, Budget of the United StatesGovernment, Fiscal Year 1999, pp. 606–609.DOCID:1999-app-jus-7.

101. Hutchinson, April 11, 2002, p. 7.

102. Rogelio E. Guevara, chief of operations, DEA,Statement before the House Judiciary Committee,Subcommittee on Crime, Terrorism, and HomelandSecurity, May 6, 2003, p. 5.

103. Drug Enforcement Agency, “Drug IntelligenceBrief: OxyContin, Pharmaceutical Diversion,”March 2002, p. 5, www.usdoj.gov/dea/pubs/intel/02017/02017p.html.

104. Joe Burchell, Michael Marizco, and EnricVolante, “Hospital’s Drug Theft Estimates Spiral-ing,” Arizona Daily Star, June 24, 2004.

105. Associated Press, “Pill Thefts Alter the Look

25

of Rural Drugstores,” New York Times, July 6, 2004.

106. J. Scott Orr, “Of Six Bogus Requests forDrugs Over the Internet, Only One was Denied,”Newark Star-Ledger, November 30, 2003.

107. Laurence Hammock, “Doctor Found Guiltyin OxyContin Case,” Roanoke Times, July 13, 2001.Emphasis added.

108. Alberto R. Gonzales, U.S. attorney general,Statement before the U.S. House of Representatives,Committee on Appropriations, Subcommittee onScience, the Departments of State, Justice, Com-merce, and Related Agencies, March 1, 2005, http://www.justice.gov/ag/testimony/2005/022805fy06aghousetestimonyfinal.htm.

109. 21 USC Sec. 853:1–2.

110. Drug Enforcement Administration, “AssetForfeiture Benefits Local Police Departments,”news release, March 25, 2003, www.usdoj.gov/dea/pubs/states/newsrel/kentucky032503p.html;Hutchinson, April 11, 2002, p. 6.

111. U.S. Department of Justice, Office of InspectorGeneral, Audit Division, “Assets Forfeiture Fundand Seized Asset Deposit Fund Annual FinancialStatement Fiscal Year 2002, Report 03-20,” June2003, p. 1.

112. The National Association of Drug DiversionInvestigators was founded in 1987 for the pur-pose of investigating and prosecuting pharma-ceutical drug diversion. There are about 2,400members of NADDI representing local and stateand police departments, DEA agents, insuranceinvestigators, drug companies and pharmacies’loss prevention departments, and state medicalboard and pharmacy regulatory agents who inves-tigate and prosecute the diversion of prescriptiondrugs. NADDI has 14 state chapters in Alabama,California, the Carolinas, Florida, Indiana,Kentucky, Maryland, New England, New York,Ohio, Pennsylvania, Tennessee, Texas, and Vir-ginia. NADDI hosts training seminars for thepurpose of coordinating methods of investigat-ing and prosecuting drug diverters.

113. Dennis M. Luken, lecture on “PharmaceuticalDrug Diversion Schemes,” National Association ofDrug Diversion Investigators Training Conference,July 24, 2003.

114. Greg Aspinwall, “Diversion of Non-Controlled Drugs,” National Association of DrugDiversion Investigators Training Conference, July24, 2003.

115. Ibid.

116. Luken.

117. Kevin Eigelbach, “Federal Suit of DoctorSettled,” Kentucky Post, December 31, 2004.

118. DEA Diversion Control Program, “Rules-2003,” Federal Register 68, no. 32 (February 18,2003): 5.

119. DEA Update, National Association of StateControlled Substance Authorities, Myrtle Beach,South Carolina, October 2002, pp. 17–18.

120. Drug Enforcement Agency and Last ActsPartnership, Pain and Policy Studies Group,University of Wisconsin, “Prescription Pain Medi-cations, 2004,” pp. 42–43.

121. Laurence Hammack, “Doctors or Dealers?”Roanoke Times, June 11, 2001.

122. 21 USC Section 802 Definitions (1).

123. Jacob Sullum, “Pill Sham,” Reason Online, April23, 2004, http://www.reason.com/sullum/042304.shtml.

124. Michael Arnold Glueck and Robert J. Cihak,“Jury Can Deny Liars for Hire,” NewsMax.com,January 5, 2005.

125. Luken.

126. Greg Wood, Health Care Fraud Investigator,U.S. Attorney’s Office, Western District of Virginia,Healthcare Fraud Prevention and Funds RecoverySummit, Washington, June 21–23, 2004, pp. 8–9.

127. Marc Kaufman, “New DEA Statement HasPain Doctors More Fearful,” Washington Post,November 30, 2004.

128. Drug Enforcement Agency, Last ActsPartnership, Pain and Policy Studies Group,University of Wisconsin, August 2004; DrugEnforcement Agency, “Dispensing of ControlledSubstances for the Treatment of Pain: InterimPolicy Statement,” www.doctordeluca.com/Library/WOD/DEA-FAQ-InterimStatement111204.htm.

129. Drug Enforcement Administration, “DEA tojoin pain advocates in issuing statement on pre-scription pain medications,” news release,October 23, 2001.

130. Drug Enforcement Administration, “Prescrip-tion Pain Medications: Frequently Asked Questionsand Answers for Health Care Professionals, and LawEnforcement Personnel,” http://www.aapsonline.org/painman/deafaq.pdf (since redacted).

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131. Ibid., emphasis added.

132. Marc Kaufman, “DEA Withdraws ItsSupport of Guidelines on Painkillers,” WashingtonPost, October 21, 2004, p. A3.

133. Drug Enforcement Agency, “Dispensing ofControlled Substances for the Treatment ofPain,” p. 3.

134. Ibid.

135. Mark Kaufman, “Specialists Decry DEAReversal on Pain Drugs,” Washington Post, December21, 2004, p. A8.

136. National Association of Attorneys General,Letter to DEA administrator Karen P. Tandy,January 19, 2005.

137. Charlie Cichon, “Identifying and Targeting theIllegal Prescriber,” National Association of DrugDiversion Investigators Training Conference,November 19–22, 2003.

138. Luken.

139. Ibid. See also Miguel A. Faria Jr., “The Nature ofthe Beast,” and “The Police State of Medicine”;Willian E. Hurwitz, “Reflections on a Case ofRegulatory Abuse”; and Otto Scott, “Pain,” all from aspecial issue of the Medical Sentinel, July/August 1998.

140. Brownlee et al.

141. E. Au et al., “Regular Use of a Verbal Pain ScaleImproves the Understanding of Oncology In-patient Pain Intensity”; Journal of Clinical Oncology12 (December 1994): 2751–55.

142. Eric Fleischauer, “Physicians Casualties in theWar on Drugs,” Decatur Daily News, October 27, 2003.

143. Michael Arnold Glueck and Robert J. Cihak,“The Painful DEA,” NewsMax.com, May 6, 2003.

144. Jane Spencer, “Crackdown on Drugs HitsChronic-Pain Patients,” Wall Street Journal, March16, 2004.

145. Mark Kaufman, “High-Dosage Opioids SavedHis Life, Patients Says,” Washington Post, December29, 2003.

146. Drug Enforcement Administration, “DEA

Unveils International Toll-Free Hotline to ReportIllegal Prescription Drug Sales and RoguePharmacies Operating on the Internet,” newsrelease, December 15, 2004.

147. Luken.

148. Fleischauer.

149. Ibid.

150. Luken. See also Faria.

151. Josh White, “McLean Doctor Facing DrugTrafficking Charges,” Washington Post, September25, 2003, p. B3.

152. Joel Hochman, “Why Dr. Hurwitz?” DrugSense Weekly, October 31, 2003.

153. Jerry Markon, “Pain Doctor Convicted of DrugCharges,” Washington Post, December 16, 2004, p. A1.

154. Jerry Markon, “Pain Doctor ‘Cavalier,’ JuryForeman Says,” Washington Post, December 21,2004, p. B3.

155. U.S. Drug Enforcement Administration,“Virginia Pain Doctor Sentenced to 25 Years,” newsrelease, April 14, 2005, http://www.dea.gov/pubs/pressrel/pr041405.html.

156. Drug Enforcement Agency, “Dispensing ofControlled Substances for the Treatment ofPain.”

157. Ibid.

158. Carl T. Hall, “Jury Acquits Doctor in Pain-Control Test Case,” San Francisco Chronicle, May20, 2004, p. A1.

159. Josh White, “Pill Probe Focuses on N. Va.Doctors,” Washington Post, August 4, 2002, p. A1.

160. Association for American Physicians andSurgeons, “Actions against Pain Physicians,” http://www.aapsonline.org/painman/actionsagainst.htm.

161. Frank Owen, “The DEA’s War on PainDoctors,” Village Voice, November 5–11, 2003.

162. Spencer.

163. Ibid.

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540. The Affirmative Action Myth by Marie Gryphon (April 6, 2005)

539. $400 Billion Defense Budget Unnecessary to Fight War on Terrorism by Charles V. Peña (March 28, 2005)

538. Liberating the Roads: Reforming U.S. Highway Policy by Gabriel Roth (March 17, 2005)

537. Fiscal Policy Report Card on America’s Governors: 2004 by Stephen Moore and Stephen Slivinski (March 1, 2005)

536. Options for Tax Reform by Chris Edwards (February 24, 2005)

535. Robin Hood in Reverse: The Case against Economic Development Takings by Ilya Somin (February 22, 2005)

534. Peer-to-Peer Networking and Digital Rights Management: How Market Tools Can Solve Copyright Problems by Michael A. Einhorn and Bill Rosenblatt (February 17, 2005)

533. Who Killed Telecom? Why the Official Story Is Wrong by Lawrence Gasman (February 7, 2005)

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