Have you ever visited your doctor and asked for prescription painkillers, only to hear “I won’t prescribe those, because I don’t want the DEA to raid me for running a pill mill?” A recent Supreme Court decision may relieve doctors and other medical professionals concerned about prosecution for prescribing opioids. Even those already convicted may benefit from this clarification of the previously-unclear law in this high-risk area of medicine.

The Law

Under Federal law, a person cannot “knowingly” distribute a controlled substance such as an opioid “except as authorized.” Separate regulations define “authorized” as prescribing only for a “legitimate medical purpose” and in the “usual course of professional practice.” The “usual course of professional practice” originally meant “while working as a doctor,” but shifted over time to mean “complying with the professional standards of medicine.” As a result, more and more doctors face criminal charges for allegedly distributing opioids “outside the usual course of professional practice.” While the Government characterized these doctors as running “pill mills,” it also increasingly prosecuted doctors who prescribed opioids more sparingly. In the recent case of Ruan v. U.S., two doctors convicted for illegally distributing opioids challenged their convictions – and the Supreme Court agreed.

The Court faced this question: can doctors illegally distribute drugs only if they knew they weren’t authorized to prescribe those drugs? The Government argued “no” – that “having authorization” was a defense, but not an element that the Government had to disprove. Under this argument, a doctor who knowingly prescribed opioids, but who could not prove she had authority, would be guilty of illegally distributing drugs. While this question of “who has to prove it” may seem arcane, that distinction made or broke prison sentences of 20+ years. Had the Government won, a doctor who negligently prescribed opioids (acted below “professional standards”) wouldn’t just face malpractice – but potential criminal charges.

Two Opinions, One Conclusion

Justice Breyer’s majority opinion (which five other Justices joined) held that knowledge is an element. In other words, a doctor can only violate the law if she knows she lacks authorization to distribute opioids. Pointing to other cases dealing with welfare fraud and pornography, the Court explained that a doctor’s state of mind separates legal conduct (giving out prescriptions) from criminal conduct (drug dealing). Without this knowledge requirement, the law would also punish innocent and beneficial conduct – giving prescriptions to people who need them. As a result, the Court vacated the doctors’ convictions and returned the cases to the lower courts to determine whether – under the now-clarified  law – those convictions could still stand.

Justice Alito’s concurring opinion (which two other Justices joined) agreed that the doctors’ convictions had to be revisited. However, Alito agreed with the Government that “authorization” was a defense and not an element, so that doctors must prove they had authorization or face conviction. But Alito disagreed with the Government that knowledge was irrelevant – he noted that “acting ‘as a physician’ does not invariably mean acting as a good physician.” And so Alito stated that a doctor can defend herself if she believed the prescription was a valid means to achieve a medical purpose. Alito therefore “concurred” – essentially saying the majority reached the right result for the wrong reasons – and also told the lower courts to revisit the convictions.

A Second Chance?

The Ruan decision not only changes the law moving forward, but offers hope to doctors previously convicted for illegally prescribing opioids. In a habeas corpus proceeding, a defendant can challenge his conviction based on a new Constitutional rule  that would change the outcome. Because Ruan requires the Government to prove that a doctor knew she lacked authorization, doctors convicted of “illegal distribution” where the Government did not prove that element may have a second chance. But time is ticking: after one year passes from the end of the appeals process, even a wrongful sentence normally becomes final.

We have seen the impact of this change in the law firsthand – we recently challenged a 35-year sentence given to a client for allegedly prescribing opioids illegally. Even though our client had been tried twice – and the Government’s vigorous arguments – we convinced the same judge who sentenced our client to give her another hearing. If you know someone wrongly convicted of illegal drug distribution, give Ashley Spencer a call at (713)-961-7770 to see if we can help. While contesting a conviction is always uncertain, and convincing a court to revisit or reduce a sentence is a high legal burden, doing nothing means the conviction will certainly stand unchallenged.