While there was no evidence that Dr. Hurwitz was profiting from the resale of his prescriptions -- and the jurors I interviewed said they didn’t think he intended the drugs to be resold -- he will still spend more time in prison than almost all the patients who admitting lying to him and reselling the drugs. Thanks to the deals they made to cooperate with prosecutors, seven of the nine patients got sentences ranging from 10 to 39 months. Only two got longer sentences than 57 months -- and one of them, who got 72 months, was also guilty of armed robbery and arson.The other thing that is really troubling about this case is that jurors admitted to Tierney (previously) that they were not clear on what the law says about whether a doctor who screws up and prescribes to the wrong people, but isn't intentionally diverting drugs to the black market, should be held criminally responsible. But that is precisely the point of law on which the verdicts turned. If jurors don't understand the law they are judging, what is the justification for keeping the conviction and imprisoning someone for it? Despite the praise that has been given to Brinkema by Tierney and others for her handling of this case -- which admittedly was far better than other judges have done -- at the end of the day I have to say that I think she failed to do proper justice. I repeat, if the jurors admit that they did not understand the key point of law before them, I see no reasonable way for the verdicts to be considered legitimate, because the process itself is simply unsound. I could see an argument (theoretically) for having a third trial, but Dr. Hurwitz should be at home tonight with his family, and it's a crime that he's not -- not only for his sake, but for all the pain patients who effectively are being tortured by denial of pain medication because doctors don't want to take the risk of getting sent to prison. Lastly on this theme, think about the fact that the first set of convictions were invalidated, and this second set for the aforementioned reasons clearly should have been. That's an extraordinarily poor track record. A criminal justice system that imprisons people even when jurors admit they didn't know what they were doing is a system that is fundamentally corroded and has lost its way. Don't be proud of yourselves, feds! Despite all of the foregoing, I also have to say that I am relieved. 17 months is a long time to spend in prison, even if one hasn't already spent some years there already, but it could be much, much worse. Judge Brinkema could have given him the same 25 years, or life -- or 10 years, or 12 or 15. The trial also had a bright spot in that Brinkema saw through the misrepresentation about dosages that prosecutors had attempted:
Brinkema said she had read news accounts of the first trial and had seen some of the massive prescriptions Hurwitz had given out, including one patient who was given 1,600 pills a day. "The amount of drugs Dr. Hurwitz prescribed struck me as absolutely crazy," the judge said. But after hearing testimony from both sides, "I totally turned around on that issue," Brinkema said. "The mere prescription of huge quantities of opioids doesn’t mean anything."In fact, there are known pain treatment cases in which the dosages were literally four times greater than the largest dosage prescribed by Hurwitz in the cases at stake (as I pointed out in a letter to Judge Wexler before the first sentencing, though obviously to no avail). Now lawyers in other pain cases (current and future) can read Judge Brinkema's comments to judges and jurors to explain why the apparently large doses may have been appropriate. The problem hasn't been a lack of experts willing to say that in trials; the problem has been that for some reason it just seems to wash over people in the face of the large number of pills. I think that having a quote like that from a federal judge will help to break through. I'm not a physician, and I'm not in a position to judge whether or not Dr. Hurwitz practiced good medicine in every case. But I'm completely confident that he did not engage any drug-dealing conspiracy. Perhaps the fact that I've met him several times in the past biases my view. But I've also met many of his former patients -- some of them I know well -- and it's a provable fact that he helped many people whom others doctors wouldn't help and who desperately needed the help, and that he gave them the benefit of thoughtful attention. A lot of these people were left in the lurch when the authorities moved against him, causing at least one suicide and arguably a few of them. Hopefully this outcome, while highly imperfect, has enough good points in it to help move things in the right direction; time will tell. You can keep with all of our pain reporting in our topical archive -- RSS is available here -- email us if you'd like to run our pain feed (or any other feed we offer) on your web site.
In a press release that does not seem to be available online, the American Civil Liberties Union praises Sen. Joseph Biden (D-Del.), historically one of the most gung-ho drug warriors in the Democratic Party, for introducing a bill that would eliminate the sentencing disparity between crack and cocaine powder. Previous proposals would have merely reduced the disparity, in some cases by making cocaine powder sentences more severe. By contrast, Biden's bill would raises the amount of crack that triggers a five-year mandatory minimum sentence to 500 grams, the same as the amount for cocaine powder. [reason]Here's Biden's statement:
The current sentencing disparity between the two forms of cocaine is based on false notions and old logic. The bottom line is that there is no scientific justification for any disparity. Crack and powder are simply two forms of the same drug, and each form produces identical effects. I will soon be introducing legislation that eliminates the sentencing disparity completely, fixing this injustice once and for all.Coming from a man whose drug war credentials include authoring the RAVE Act and creating ONDCP, this is an exciting surprise. While many consider fixing the crack/powder sentencing disparity a no-brainer, reducing federal drug sentences is certainly a bold move for Biden.
He's running for president right now, so Biden's willingness to challenge a drug war injustice suggests a shifting perception of the political implications of U.S. drug policy. As obviously flawed as the sentencing disparity is, it's not really that much more palatable than any number of other issues we're working on. If Biden can recognize this problem, there's much more he could potentially come to understand.
(This blog post was published by StoptheDrugWar.org's lobbying arm, the Drug Reform Coordination Network, which also shares the cost of maintaining this web site. DRCNet Foundation takes no positions on candidates for public office, in compliance with section 501(c)(3) of the Internal Revenue Code, and does not pay for reporting that could be interpreted or misinterpreted as doing so.)
half a million nonviolent drug offenders rot. The news just broke that President Bush has commuted Scooter Libby's sentence, leaving him with a conviction and a $250,000 fine. Most of the fine is going to be paid by his allies. This might not bother me as much -- I'm generally not a big fan of prison -- were it not that Bush has been such a "pardon Scrooge" during all of his now many years in office. In fact, as of last November the total number of commutations he had done numbered a mere two, according to SF Chronicle columnist Deb Saunders. What a coincidence that of all of the two million people languishing behind bars in this country, the vice president's former aide was one of only .00015% of them -- three people -- who deserved to be spared prison time! I've been watching drug policy, and criminal justice generally, for the last 14 years, and the sheer hypocrisy in this instance even blows me away. Either George Bush proceeds now to release nonviolent offenders in droves -- thousands and thousands of them -- or calling him a hypocrite will be the understatement of the millennium. Clarence Aaron and the Garrison twins would be three good people to start with. (Update: The president cannot commute state sentences, so change the .00015% I referred to earlier to .0015% instead. On the other side of the equation, though, a much higher percentage of federal incarcerations are of nonviolent drug offenses than of state incarcerations.)