Pain Relief,Prescription Drugs,and Prosecution: A Four-State Survey of Chief Prosecutors

Johnson S.H. , “Disciplinary Actions and Pain Relief: Analysis of the Pain Relief Act,” Journal of Law, Medicine & Ethics, 24, no. 4 (1996): 319–27, at 319; Johnson S.H. , “Introduction: Legal and Regulatory Issues in Pain Management,” Journal of Law, Medicine & Ethics, 26, no. 4 (1998): 265–66, at 265; Alpers A , “Criminal Act or Palliative Care? Prosecutions Involving the Care of the Dying,” Journal of Law, Medicine & Ethics, 26, no. 4 (1998): 308–31, at 308, 310; Hoffmann D.E. , “Pain Management and Palliative Care in the Era of Managed Care: Issues for Health Insurers,” Journal of Law, Medicine & Ethics, 26, no. 4 (1998): 267–89, at 267; Quill T.E. , “The Debate over Physician-Assisted Suicide: Empirical Data and Convergent Views,” Annals of Internal Medicine, 128, no. 7 (1998): 552–58, at 552–53; Brockopp D.Y. , “Barriers to Change: A Pain Management Project,” International Journal of Nursing Studies, 35 (1998): 226–32; Gilson A.M. Joranson D.E. , “Controlled Substances and Pain Management: Changes in Knowledge and Attitudes of State Medical Regulators,” Journal of Pain and Symptom Management, 21, no. 3 (2001): 227–37, at 227.

See Johnson , “Disciplinary Actions and Pain Relief: Analysis of the Pain Relief Act,” supra note 1, at 319; Joranson D.E. Gilson A.M. , “Improving Pain Management Through Policy Making and Education for Medical Regulators,” Journal of Law, Medicine & Ethics, 24, no. 4 (1996): 344–47, at 344; Hill C.S. Jr. , “The Negative Influence of Licensing and Disciplinary Boards and Drug Enforcement Agencies on Pain Treatment with Opioid Analgesics,” Journal of Pharmaceutical Care in Pain & Symptom Control, 1, no. 1 (1993): 43–62, at 44; Tolle S. , “Family Reports of Pain in Dying Hospitalized Patients: A Structured Telephone Survey,” Western Journal of Medicine, 172 (2000): 374–77, at 374; Shapiro R. , “Health Care Providers' Liability Exposure for Inappropriate Pain Management,” Journal of Law, Medicine & Ethics, 24, no. 4 (1996): 360–64, at 360; Ostrom C.M. , “Doctors Leery of U.S. Crackdown on Pain Drugs,” The Seattle Times, January 29, 2002, at A1, A7.

Portenoy R.K. , “Opioid Therapy for Chronic Nonmalignant Pain: A Review of the Critical Issues,” Journal of Pain and Symptom Management, 11, no. 4 (1996): 203–17, at 208; Shapiro, supra note 2, at 363; Foley K.M. , “The Relationship of Pain and Symptom Management to Patient Requests for Physician-Assisted Suicide,” Journal of Pain and Symptom Management, no. 5 (1991): 289–97, at 291; Weinstein S.M. , “Physicians' Attitudes Toward Pain and the Use of Opioid Analgesics: Results of a Survey from the Texas Cancer Pain Initiative,” Southern Medical Journal, 93, no. 5 (2000): 479–87; Hill Jr. , supra note 2; Brockopp , supra note 1.

Joranson D.E. Gilson A.M. , “Controlled Substances, Medical Practice, and the Law,” in Schwartz H. , ed., Psychiatric Practice Under Fire: The Influence of Government, the Media and Special Interests on Somatic Therapies (Washington, D.C.: American Psychiatric Press, 1994): 173–94; Greenwald B.D. Narcessian E.J. , “Opioids for Managing Patients with Chronic Pain: Community Pharmacists' Perspectives and Concerns,” Journal of Pain and Symptom Management, 17, no. 5 (1999): 369–75.

Portenoy , supra note 3, at 204; Sees K.L. Clark H.W. , “Opioid Use in the Treatment of Chronic Pain: Assessment of Addiction,” Journal of Pain and Symptom Management, 8, no. 5 (1993): 257–64, at 258; Whitecar P.S. Jonas A.R. Clasen M.E. , “Managing Pain in the Dying Patient,” American Family Physician, 61, no. 3 (2000): 755–64, at 761; Weinstein , supra note 3; Greenwald Narcessian , supra note 4.

Joranson Gilson , supra note 4, at 181.

Johnson , “Introduction: Legal and Regulatory Issues in Pain Management,” supra note 1, at 265; Weissman D. , “Doctors, Opioids, and the Law: The Effect of Controlled Substances Regulations on Cancer Pain Management,” Seminars in Oncology, 20, no. 1. suppl. A (1993): 53–58, at 55; Hill Jr. , supra note 2; Portenoy , supra note 3; Gilson Joranson , supra note 1; Joranson D.E. Gilson A.M. , “Pharmacists' Knowledge of and Attitudes Toward Opioid Pain Medications in Relation to Federal and State Policies,” Journal of the American Pharmaceutical Association, 41, no. 2 (2001): 213–20; Weinstein , supra note 3; See Federation of State Medical Boards, Model Guidelines for the Use of Controlled Substances for the Treatment of Pain (adopted May 2, 1998), available at <http://www.medsch.wisc.edu/painpolicy/domestic/model.htm> [hereinafter cited as FSMB Guidelines].

Joranson Gilson , supra note 7, at 217; Joranson D.E. Gilson , supra note 4, at 176.

Controlled Substances Act (1970), 21 U.S.C §§ 801 et seq.; Abood R.R. Brushwood D.B. , Pharmacy Practice and the Law (Gaithersburg, Vlaryland: Aspen, 2001): At 192; Greenwald Narcessian , supra note 4, at 374; Behr D. , “Prescription Drug Control Under the Federal CSA: A Web of Administrative, Civil, and Criminal Law Controls,” Washington University Journal of Urban and Contemporary Law, 45 (1994): 41–119; FSMB Guid lines, supra note 7.

Gilson Joranson , supra note 1; Joranson Gilson , supra note 7; Greenwald Narcessian , supra note 4; Weinstein , supra note 3.

Johnson , “Disciplinary Actions and Pain Relief: Analysis of the Pain Relief Act,” supra note 1, at 320, 326; Hyman C. , “Pain Management and Disciplinary Action: How Medical Boards Can Remove Barriers to Effective Treatment,” Journal of Law, Medicine & Ethics, 14, no. 4 (1996): 338–43, at 338; Joranson Gilson , supra note 2, at 344; Shapiro , supra note 2, at 363; Hill Jr. , supra note 2, at 43–44; Jost T.S. , “Public Financing of Pain Management: Leaky Umbrellas and Ragged Safety Nets,” Journal of Law, Medicine & Ethics, 26, no. 4 (1998): 290–307, at 291; Portenoy , supra note 3; Alpers, supra note 1; Hoffmann , supra note 1; McIntosh H. , “Regulatory Barriers Take Some Blame for Pain Undertreatment,” Journal of the National Cancer Institute, 83, no. 17 (1991): 1202–04; McIntosh H. , “How Physicians Handle Drug Investigations,” Journal of the National Cancer Institute, 83, no. 18 (1991): 1282–84; Nowak R. , “Cops and Doctors: Drug Busts Hamper Pain Therapy,” The Journal of NIH Research, 4 (1992): 27–28; Weinstein , supra note 3; Ostrom, supra note 2, at A1, A7.

Foley , supra note 3, at 291; Hyman , supra note 11, at 338; Portenoy , supra note 3; Nowak , supra note 11; Brockopp , supra note 1.

Portenoy , supra note 3, at 204; Sees Clark , supra note 5, at 258; Whitecar Jonas Clasen , supra note 5, at 761; Weinstein , supra note 3; Greenwald Narcessian , supra note 4.

Foley , supra note 3; Portenoy , supra note 3; Nowak , supra note 11; Hyman , supra note 11, at 338.

Weinstein , supra note 3, at 481.

Hill Jr. , supra note 2, at 45, 48.

Martino A.M. , “In Search of a New Ethic for Treating Patients with Chronic Pain: What Can Medical Boards Do?,” Journal of Law, Medicine & Ethics, 26, no. 4 (1998): 332–49, at 332.

Wilford B.B. , “An Overview of Prescription Drug Misuse and Abuse: Defining the Problem and Seeking Solutions,” Journal of Law, Medicine & Ethics, 22, no. 3 (1994): 197–203, at 199.

Wilford , supra note 18.

See Vilensky W. Steer R.A. Weikel C.V. , “Background Characteristics of Judicious and Injudicious Prescribers in New Jersey,” Journal of Forensic Sciences, 32, no. 1 (1987): 201–07 (found that 12 percent of injudicious prescribers were impaired).

Wilford , supra note 18; Jesilow P.D. Pontell H.N. Geis G. , “Medical Criminals: Physicians and White-Collar Offenses,” Justice Quarterly, 2 (1985): 149–65, at 155–56. See also Behr , supra note 9.

Conlan M.F. , “U.S. Congress May Try to Kill Oregon's Assisted-Suicide Law,” Drug Topics, 143, no. 19 (October 4, 1999): 85–86, at 86; Orentlicher D. Caplan A. , “The Pain Relief Promotion Act of 1999: A Serious Threat to Palliative Care,” JAMA, 283, no. 2 (2000): 255–58, at 255–56; Shapiro R. , “Liability Issues in the Management of Pain,” Journal of Pain and Symptom Management, 9, no. 3 (1994): 146–52, at 149; Ziegler S.J. Lovrich N.R. Jr. , Prohibiting Physician-Assisted Suicide at the Expense of Pain Relief(September 2001), Pain and the Law Website, at <http://www.painandthelaw.org/mayday/ziegler_lovrich_100301.php>; Ostrom, supra note 2. Although several people have used the terms interchangeably, euthanasia and physician-assisted suicide are actually two distinct practices and can be distinguished on the basis of patient control. Specifically, in physician-assisted suicide, the physician provides the means or instructions on how to hasten the patient's death, but it is the patient who must actually cause the consumption of the substance. In contrast, euthanasia (“mercy-killing”) involves the administration of the substance by the physician (e.g., a lethal injection). Humphry D. Clement M. , Freedom to Die: People, Politics, and the Right to Die Movement (New York: St. Martin's Griffin, 2000): At 287; Clark N. , The Politics of Physician-Assisted Suicide (New York: Garland Publishing, 1997): At 7, 10; Steinbrook R. , “Physician-Assisted Suicide in Oregon — An Uncertain Future,” N. Engl. J. Med., 346, no. 6 (2002): 460–64, at 460.

Hallenbeck J. , “Terminal Sedation for Intractable Distress,” Western Journal of Medicine, 171, no. 4, (1999): 222–23, at 222; Cherny N.I. Portenoy R.K. , “Sedation in the Management of Refractory Symptoms: Guidelines for Evaluation and Treatment,” Journal of Palliative Care, 10, no. 2 (1994): 31–38; Hardy J. , “Sedation in Terminally 111 Patients”, The Lancet, 356 (2000): 1866–67; Billings A.J. Block S.D. , “Slow Euthanasia,” Journal of Palliative Care, 12, no. 4 (1996): 21–30; Cantor N. , “Twenty-Five Years After Quintan: A Review of the Jurisprudence of Death and Dying,” Journal of Law, Medicine & Ethics, 29, no. 2 (2001): 182–96; Alpers A. Lo B. , “The Supreme Court Addresses Physician-Assisted Suicide. Can Its Rulings Improve Palliative Care?,” Archives of Family Medicine, 8 (1999): 200–05.

Quill , supra note 1; Billings Block , supra note 23; Cherny Portenoy , supra note 23; Hallenbeck , supra note 23.

Cantor , supra note 23, at 187; Hallenbeck , supra note 23; Quill T.E. Lo B. Brock D.W. , “Palliative Options of Last Resort: A Comparison of Voluntarily Stopping Eating and Drinking, Terminal Sedation, Physician-Assisted Suicide, and Voluntary Active Euthanasia,” JAMA, 278, no. 23 (1997): 2099–104.

Fohr S. , “The Double Effect of Pain Medication: Separating Myth from Reality,” Journal of Palliative Medicine, 1, no. 4 (1998): 315–28; Meisel A. Jernigan J.C. Youngner S.J. , “Prosecutors and End-of-Life Decision Making,” Archives of Internal Medicine, 159, no. 10 (1999): 1089–95.

Fohr , supra note 26, at 318–21; Quill T.E. , “Principle of Double Effect and End-of-Life Pain Management: Additional Myths and a Limited Role,” Journal of Palliative Medicine, 1, no. 4 (1998): 333–36; Weinstein , supra note 3.

Fohr , supra note 26, at 316.

Fohr , supra note 26; Quill , supra note 1; Whitecar Jonas Clasen , supra note 5.

Cantor , supra note 23, at 186.

See also Alpers Lo , supra note 23; Meisel Jernigan Youngner , supra note 26; Orentlicher D. , “The Supreme Court and Physician-Assisted Suicide: Rejecting Assisted Suicide but Embracing Euthanasia,” N. Engl. J. Med., 337, no. 17 (1997): 1236–39, at 1236–37.

See generally Meisel A. Snyder L. Quill T. , “Seven Legal Barriers to End-of-Life Care: Myths, Realities, and Grains of Truth,” JAMA, 284, no. 19 (2000): 2495–501; Cantor , supra note 23.

Steinbrook , supra note 22, at 463; Gostin L. , “Drawing a Line Between Killing and Letting Die: The Law, and Law Reform, on Medically Assisted Dying,” Journal of Law, Medicine & Ethics, 21, no. 1 (1993): 94–101, at 94; Orentlicher Caplan , supra note 22.

Cantor N. Thomas G. III , “Pain Relief, Acceleration of Death, and Criminal Law,” Kennedy Institute of Ethics Journal, 6, no. 2 (1996): 107–28.

Orentlicher , supra note 31. See also Billings Block , supra note 23; Alpers Lo , supra note 23.

Orentlicher Caplan , supra note 22, at 256; Cantor, supra note 23; Cantor Thomas III , supra note 34; Alpers Lo , supra note 23.

Lethal Drug Abuse Prevention Act, H.R. 4006, 105th Congress, 2d session (1998); Pain Relief Promotion Act (PRPA), H.R. 2260, 106th Congress (1999); Conlan , supra note 22, at 86; Orentlicher Caplan , supra note 22; Baron C. , “Assisted Dying,” Trial, 35, no. 7 (1999): 44–50. See also Ziegler Lovrich , supra note 22; Steinbrook , supra note 22 (voicing concern that an intent to comfort terminal patients with the administration of opioids could be viewed by law enforcement as intent to hasten death).

Concerns over determining physicians' intent were raised by the Hospice Patients Alliance, which at one time encouraged people to report physicians to the Drug Enforcement Administration if a terminally ill patient died and prescription drugs were involved. See Hospice Patients Alliance, When Narcotics Are Misused in Order to Kill a Patient You Can Report the Crime to the U.S. Drug Enforcement Administration, at <http://www.hospiceparients.org/usdoj-dea-ofclist.html> (last visited October 4, 2000).

Alpers , supra note 1, at 309. Pamela Bucy notes that it “is unfortunate that the only mechanism readily available to study prosecutions of health care providers is through reported cases. This is inadequate for two reasons. First, courts are reporting fewer and fewer of their opinions…. Second, significant cases are often settled. These two deficiencies in the sample make it difficult to detect trends, especially in an area changing as rapidly as health care.” Bucy P. , “The Poor Fit of Traditional Evidentiary Doctrine and Sophisticated Crime: An Empirical Analysis of Health Care Fraud Prosecutions,” Fordham Law Review, 63 (1994): 383–528, at 386 n.6.

Alpers , supra note 1.

Meisel Jernigan Youngner , supra note 26.

See, e.g., Benson M.L. Cullen F.T. , Combating Corporate Crime: Local Prosecutors at Work (Boston: Northeastern University Press, 1998); Benson M.L. , “District Attorneys and Corporate Crime: Surveying the Prosecutorial Gatekeepers,” Criminology, 26, no. 3 (1988): 505–18; Benson M.L. Cullen F.T. Geis G. , “Local Prosecutors and Corporate Crime,” Crime and Delinquency, 36, no. 3 (1990): 356–72; Jesilow Pontell Geis , supra note 21; Ayers K.A. Jr. Frank J. , “Deciding to Prosecute White-Collar Crime: A National Survey of State Attorneys General,” Justice Quarterly, 4, no. 3 (1987): 425–39.

Although the knowledge and opinions held by U.S. Attorneys are important as well, particularly since they work so closely with the Drug Enforcement Administration and have federal jurisdiction over conduct occurring in Veterans Administration (VA) hospitals, empirical research necessarily proceeds in steps. Consequently, in light of resource and time constraints, coupled with the realization that there are ten times more local prosecuting officials than appointed U.S. Attorneys, we narrowed our focus in this instant study to local prosecutors.

Jacoby J.E. , “The Charging Policies of Prosecutors,” in McDonald W.F. , ed., The Prosecutor (Beverly Hills: Sage Publications, 1979): 75–95, at 76–77; Jacoby J.E. , The American Prosecutor: A Search for Identity (Lexington, Massachusetts: Lexington Books, 1980): At 195; Thomas C.W. Fitsh W.A. , “Prosecutorial Decision Making,” American Criminal Law Review, 13, no. 3 (1976): 507–59, at 509; Cole G.F. , Politics and the Administration of Justice (Beverly Hills: Sage Publications, 1973).

Alpers , supra note 1, at 308.

Jacoby , The American Prosecutor: A Search for Identity, supra note 44, at xix.

Id. at xv; Jacoby , “The Charging Policies of Prosecutors,” supra note 44, at 75. The chief prosecuting attorneys in our study carry different titles: Prosecuting attorney (Washington), district attorney (Oregon), and state's attorney (Connecticut and Maryland).

Cole , supra note 44, at 113–14.

Cole , supra note 44, at 112, 150; Jacoby , “The Charging Policies of Prosecutors,” supra note 44, at 75.

Miller F.W. , Prosecution: The Decision to Charge a Suspect with a Crime, Report of the American Bar Foundation's Survey of the Administration of Criminal Justice in the United States (Boston: Little, Brown and Company, 1969): At 295; Cole G.F. , “The Decision to Prosecute,” Law and Society Review, 4, no. 3 (1970): 331–43.

Jacoby , The American Prosecutor: A Search for Identity, supra note 44, at 47.

Jacoby , “The Charging Policies of Prosecutors,” supra note 44, at 78.

Cox S.J. , “Prosecutorial Discretion: An Overview.” American Criminal Law Review, 13, no. 3 (1976): 383–434; Jacoby , The American Prosecutor: A Search for Identity, supra note 44; Miller , supra note 50; Thomas Fitch , supra note 44.

Jackson R. , “The Federal Prosecutor,” Journal of the American Judicature Society, 24 (1940): 18–20, at 18.

Spohn C. Beichner D. Davis-Frenzel E. , “Prosecutorial Justifications for Sexual Assault Case Rejection: Guarding the Gateway to Justice,” Social Problems, 48, no. 2 (2001): 206–35; Jacoby , The American Prosecutor: A Search for Identity, supra note 44.

Gottfredson M.R. Gottfredson D.M. , Decision Making in Criminal Justice: Toward the Rational Exercise of Discretion, 2nd ed. (New York: Plenum Press, 1988): At 113–14. See also Teslik R. , Prosecutorial Discretion—the Decision to Charge: An Annotated Bibliography (Washington, D.C.: U.S. Department of Justice, Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, 1975); Kaplan J. , “The Prosecutorial Discretion — A Comment.” University of Northwestern Law Review, 60, no. 2 (1965): 174–93; Jacoby , The American Prosecutor: A Search for Identity, supra note 44; Miller , supra note 50; Frase R.S. , “The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial Discretion,” University of Chicago Law Review, 47 (1980): 246–330; Thomas Fitch , supra note 44; Cox , supra note 53.

Albonetti C.A. , “Prosecutorial Discretion: The Effects of Uncertainty,” Law and Society Review, 21, no. 2 (1987): 291–313, at 291; Eisenstein J. , “Unsettled Territory: An Overview of Research on The Legal Process,” Law & Courts (newsletter of the Law and Courts Section of the American Political Science Association), 11, no. 1 (2000): 1–32, at 5 (part of symposium issue on Politics and Prosecutors).

McGhee M.E. , “Prosecutorial Discretion,” Georgetown Law Journal, 88 (2000): 1057–69, at 1057.

Gershman B.L. , “A Moral Standard for the Prosecutor's Exercise of the Charging Discretion.” Fordham Urban Law Journal, 20 (1993): 513–30, at 513 n.3. Aside from the role that convictability plays in the decision to charge, both Miller, supra note 50, and Gottfredson Gottfredson , supra note 56, recognized that there are reasons beyond legal concerns for not charging a suspect. For instance, although a prosecutor may decline to charge a suspect for legal reasons, such as insufficient evidence, a closer examination may indicate that the legal reason is merely a facade for an outright discretionary action. Specifically, a review of the case may reveal that there is sufficient legal evidence to convict; however, prosecution of the offender is “otherwise undesirable” in light of extralegal factors. Miller , supra note 50, at 155. In fact, this “insufficient evidence” designation is often a convenient way out for the public prosecutor. Miller, supra note 50, at 156.

Cole , supra note 44.

Schmidt J. Steury E.H. , “Prosecutorial Discretion in Filing Charges in Domestic Violence Cases,” in Cole G.F. Gertz M.G. , eds., The Criminal Justice System: Politics and Policies, 7th ed. (Belmont, California: Wadsworth Publishing, 1998): 187–201.

Hirschel D. Hutchison I.W. , “The Relative Effects of Offense, Offender, and Victim Variables on the Decision to Prosecute Domestic Violence Cases,” Violence Against Women, 7, no. 1 (2001): 46–59; Miller , supra note 50; Baumer E.R. Messner S.F. Felson R.B. , “The Role of Victim Characteristics in the Disposition of Murder Cases,” Justice Quarterly, 17, no. 2 (2000): 281–307; Frohmann L. , “Convictability and Discordant Locales: Reproducing Race, Class, and Gender Ideologies in Prosecutorial Decisionmaking,” Law & Society Review, 31, no. 3 (1997): 531–55; Schmidt Steury , supra note 61.

Cole , supra notes 44, 50.

Frohmann , supra note 62; Spohn Beichner Davis-Frenzel , supra note 55.

Miller , supra note 50; Pritchard D. , “Homicide and Bargained Justice: The Agenda-Setting Effect of Crime News on Prosecutors,” Public Opinion Quarterly, 50 (1986): 143–59; Haynie S.L. Dover E.A. , “Prosecutorial Discretion and Press Coverage,” American Politics Quarterly, 22, no. 3 (1994): 370–81.

Albonetti , supra note 57.

Frohmann , supra note 62, at 535 (citing Emerson R.M. Paley B.P. , “Organizational Horizons and Complaint-Filing,” in Hawkins K. , ed., The Uses of Discretion (New York: Oxford University Press, 1992)). See also Frohmann L. , “Discrediting Victims' Allegations of Sexual Assault: Prosecutorial Accounts of Case Rejections,” Social Problems, 38, no. 2 (1991): 213–26, at 224.

Friedrichs D.O. , Trusted Criminals: White-collar Crime in Contemporary Society (Boston: Wadsworth Publishing Company, 1996): At 10.

Green G.S. , Occupational Crime, 2nd ed. (Chicago: Nelson-Hall Publishers, 1997): At 15; Friedrichs , supra note 68, at 102; Jesilow Pontell Geis , supra note 21.

Jesilow Pontell Geis , supra note 21, at 160.

Friedrichs , supra note 68, at xvii; Green, supra note 69, at xiii (quoting Gilbert Geis).

Friedrichs , supra note 68, at 2, 22.

Albonetti C.A. , “Direct and Indirect Effects of Case Complexity, Guilty Pleas, and Offender Characteristics on Sentencing for Offenders Convicted of a White-Collar Offense Prior to Sentencing Guidelines,” Journal of Quantitative Criminology, 14, no. 4 (1998): 353–79, at 357; Jesilow Pontell Geis , supra note 21; Ayers Jr. Frank , supra note 42.

Friedrichs , supra note 68, at 50–53. See also Johnson , “Disciplinary Actions and Pain Relief: Analysis of the Pain Relief Act,” supra note 1, at 320–21.

Jesilow Pontell Geis , supra note 21, at 161.

Green , supra note 69, at 184; Jesilow Pontell Geis , supra note 21.

Jesilow Pontell Geis , supra note 21, at 154.

Jesilow Pontell Geis , supra note 21; Behr , supra note 9; Van Grunsven P. , “Criminal Prosecution of Health Care Providers for Clinical Mistakes and Fatal Errors: Is ‘Bad Medicine’ a Crime?,” Journal of Health and Hospital Law, 29, no. 2 (1995): 107–20; Jost, supra note 11.

Bensel F.P. Goldberg B.D. , “Prosecutions and Punitives for Malpractice Rise, Slowly,” National Law Journal, January 22, 1996 Alpe upra note 1; Van Grunsven , supra note 78; Lch J. The Criminalization of Physician Violence: Sorol in transformation,” Justice Quarterly, 18, no. 1 (2001) 41–70.

Grunsven Van , supra note 78, at 112; Van Grunsven P. , “Medical Malpractice or Criminal Mistake? An Analysis of Past and Current Criminal Prosecutions for Clinical Mistakes and Fatal Errors,” DePaul Journal of Health Care, 1 (1997): 1–54, at 51; Liederbach , supra note 79, at 148–49.

Liederbach , supra note 79, at 145–50; Benson Cullen Geis , supra note 42, at 364.

Jesilow Pontell Geis , supra note 21, at 160.

Id. at 161. “U.S. Attorneys are extraordinarily kind to doctors, because even if they are crooks, theoretically they are still providing some useful services to the community.”

Meisel Jernigan Youngner , supra note 26.

Id. at 1092.

Id. at 1090.

Id. at 1092.

Alpers , supra note 1, at 308.

Id. at 311.

Id. at 315.

Id. at 311.

See Donaghue Medical Research Foundation, II. Assessment of Pain Management and Obstacles to Adequate Pain Management in Connecticut, at <http://www.aslme.org/research/proposal_pt2.php> (last visited February 18, 2003).

Dillman D.A. , Mail and Internet Surveys: The Tailored Design Method, 2nd ed. (New York: John Wiley and Sons, Inc., 2000).

Meisel Jernigan Youngner , supra note 26.

Alpers , supra note 1, at 315.

Fohr , supra note 26; Quill , supra note 1.

Whitecar Jonas Clasen , supra note 5, at 761.

Fohr , supra note 26, at 316.

See Cantor, supra note 23; Alpers Lo , supra note 23; Orentlicher Caplan , supra note 22; Vacco v. Quill, 521 U.S. 793 (1997).

Pain Relief Promotion Act of 1999: Hearing on H.R. 2260 Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 106th Cong. (June 24, 1999) (written testimony of Walter R. Hunter, Associate National Medical Director, VistaCare Hospice), available at <http://www.house.gov/judiciary/hunt0624.htm>.

Benson , supra note 42; Benson Cullen , supra note 42; Ayers Jr. Frank , supra note 42; Liederbach , supra note 79.

Meisel Jernigan Youngner , supra note 26; Gilson Joranson , supra note 1; Benson Cullen , supra note 42; Benson , supra note 42; Ayers Jr. Frank , supra note 42; Weinstein , supra note 3; Liederbach , supra note 79. Special thanks to Gilson Aaron Ph.D., and Youngner Stuart M.D., who helped further refine our thinking.

Steinbrook , supra note 22. See also Ziegler S.J. Lovrich N.P. Jr. , Pain Relief and Prohibiting PAS: The Saga Continues (September 2001), Pain and the Law Website, at <http://www.painandthelaw.org/mayday/ziegler_lovrich_110101.php>.

Alpers , supra, note 1.

Jacoby , The American Prosecutor: A Search for Identity, supra note 44.

See, e.g., id.

Sees Clark , supra note 5, at 258.

Wilford , supra note 18.

Gaffney M. Lovrich N.P. Jr. , Perceptions of Crime: Differential Citizen Views of Problems of Public Order at the City and Neighborhood Level, paper presented at the Annual Meeting of the Academy of Criminal Justice Sciences, New Orleans, March 24, 2000. See also Benson Cullen , supra note 42.

Prosecutor #1: [I would refer] in conjunction with [the police investigation]. Prosecutor #2: I would not only prosecute, but also refer to the state medical board. Prosecutor #3: Your question had us consider the state medical board in lieu of investigation. When I have had these cases [involving medical practice], we have had police and [the state medical board] investigate together. The police do not have the background for these investigations. Prosecutor #4: The questions asking if we would send matters to the medical board in lieu of police investigation are not well taken. We would likely [undertake] parallel investigations.

Prosecutor #9: Prescribing drug cases: For profit? [I have no anxiety when deciding to prosecute]. [Doctor has] lax controls? Punish for stupidity or do we want a knowing violation? If the physician is impaired [and diverting, I] would treat [the case] as if [it were motivated by] profit, but would treat differently for sentencing purposes. Evidence issues also present a problem — hired experts on each side would describe typical dosages — result in reasonable doubt? What about witnesses? Credibility issues are present because they may be addicted patients who are now cut off or co-defendants who assisted in street sales. If I get an undercover officer, that would be better, but [that would be] a problem if the jurisdiction is small.

Due to variation in the names of offenses among the states, we classified offenses using a generic classification scheme. Moreover, to avoid double counting, we counted only the highest offense when respondents provided lesser included offenses as alternatives (e.g., when both murder and manslaughter were offered, only murder was counted).

Prosecutor #16: It would be good to know if the doses administered were clearly beyond norms (something I assumed). This is an interesting and thought-provoking survey.

Prosecutor #15: [A few of my family members] were hospice patients. My experience of their deaths completely determined my answers to your great questions. I was surprised about how strongly I feel on these issues. Because rational analysis played no part, I would have to refer this matter to another prosecutor in my office should the situation present itself.

We also drew a distinction between “uncertain” (the respondent was taking a middle ground as to whether the profession was effective or not in policing its own) and “do not know.” Those choosing “uncertain” would correspond with a score of 4 along the seven-point scale, and those who did not know checked the box labeled “Don't Know.”

See Grunsven Van , supra note 80; Liederbach , supra note 79.

Benson Cullen , supra note 42; Jesilow Pontell Geis , supra note 21; Benson , supra note 42; and Ayers Jr. Frank , supra note 42.

We recognize that there are other parametric and non-parametric tests that we could have selected that would have contributed further to our analysis.

All variables were reviewed, and those which posed a risk of tautology were omitted.

See, e.g., Goodwin P. , “Oregon's Physician Assisted Suicide Law: An Alternative Viewpoint,” Archives of Internal Medicine, 157, (1997): 1642–44; Ziegler S.J. Lovrich N.E. Jr. , Examining the Link Between Physical Pain and Requests for Hastened Death: Different Results or Different Values? (July 2, 2002), Pain and the Law Website, at <http://www.painandthelaw.org/mayday/ziegler_070202.php>; Bonnie R.J. Guyer B. , “Injury as a Field of Public Health: Achievements and Controversies,” Journal of Law, Medicine & Ethics, 30, no. 2 (2002): 267–80, at 278.

Weinstein , supra note 3, at 481.

Greenwald Narcessian , supra note 4, at 373.

Joranson Gilson , supra note 7, at 217.

Gilson Joranson , supra note 1, at 235.

Weinstein , supra note 3, at 480.

Gilson Joranson , supra note 1, at 230.

Joranson Gilson , supra note 7, at 215.

Greenwald Narcessian , supra note 4, at 371.

Gilson Joranson , supra note 1, at 230.

See Alpers , supra note 1; Jesilow Pontell Geis , supra note 21.

See notes 112 and 115, supra.

Alpers , supra note 1, at 315.

Jesilow Pontell Geis , supra note 21, at 161.

See Benson Cullen , supra note 42; Benson Cullen Geis , supra note 42.

See Martino , supra note 17. For a related context, see Lawthers A.C. , “Physicians' Perceptions of the Risk of Being Sued,” Journal of Health Politics, Policy and Law, 17, no. 3 (1992): 463–82.

Gilson Joranson , supra note 1. See also Hoover v. Agency for Health Care Admin. , 676 So. 2d 1380 (Fla. Dist. Ct. App. 1996).

Zaller J. Feldman S. , “A Simple Theory of the Survey Response: Answering Questions versus Revealing Preferences,” American Journal of Political Science, 36, no. 3 (1992): 579–616.

Alpers , supra note 1; Meisel Jernigan Youngner , supra note 26.

Alpers , supra note 1.

Id. at 311.

See, e.g., Behr , supra note 9; Jesilow Pontell Geis , supra note 21.

Joranson D.E. , “Pain Management, Controlled Substances, and State Medical Board Policy: A Decade of Change,” Journal of Pain and Symptom Management, 23, no. 2 (2002): 138–47, at 144; Hyman , supra note 11, at 338.

For a comprehensive examination of state and federal policies relating to the medical use of opioids, see Joranson D. E. , Achieving Balance in Federal and State Pain Policy: A Guide to Evaluation (Madison: The Pain & Policy Studies Group, University of Wisconsin Comprehensive Cancer Center, 2000), available at <http://www.medsch.wisc.edu/painpolicy/eguide2000/index.html>.