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545 June 16, 2005 Routing

Treating Doctors as Drug Dealers

The DEA’s War on Prescription Painkillers
by Ronald T. Libby

Executive Summary

The medical field of treating chronic pain is pain medication OxyContin was finding its way
still in its infancy. It was only in the late 1980s to the black market for illicit drugs, resulting in
that leading physicians trained in treating the an outbreak of related crime, overdoses, and
chronic pain of terminally ill cancer patients deaths. Though many of those reports proved to
began to recommend that the “opioid therapy” be exaggerated or unfounded, critics in Congress
(treatment involving narcotics related to opium) and the Department of Justice scolded the U.S.
used on their patients also be used for patients Drug Enforcement Administration for the
suffering from nonterminal conditions. The new alleged pervasiveness of OxyContin abuse.
therapies proved successful, and prescription The DEA responded with an aggressive plan
pain medications saw a huge leap in sales to eradicate the illegal use or “diversion” of
throughout the 1990s. But opioid therapy has OxyContin. The plan uses familiar law enforce-
always been controversial. The habit-forming ment methods from the War on Drugs, such as
nature of some prescription pain medications aggressive undercover investigation, asset forfei-
made many physicians, medical boards, and law ture, and informers. The DEA’s painkiller cam-
enforcement officials wary of their use in treating paign has cast a chill over the doctor-patient can-
acute pain in nonterminal patients. Consequent- dor necessary for successful treatment. It has
ly, many physicians and pain specialists have resulted in the pursuit and prosecution of well-
shied away from opioid treatment, causing mil- meaning doctors. It has also scared many doctors
lions of Americans to suffer from chronic pain out of pain management altogether, and likely
even as therapies were available to treat it. persuaded others not to enter it, thus worsening
The problem was exacerbated when the the already widespread problem of undertreated
media began reporting that the popular narcotic or untreated chronic pain.

Ronald T. Libby is a professor of political science and public administration at the University of North Florida.
In 1995 Introduction which it attributed to “low priority of pain
untreated pain management in our health care system,
Untreated pain is a serious problem in the incomplete integration of current knowledge
cost American United States. Given the difficulties in measur- into medical education and clinical practice,
business more ing a condition that’s untreated, estimates vary, lack of knowledge among consumers about
but most experts agree that tens of millions of pain management, exaggerated fears of opioid
than $100 billion Americans suffer from undertreated or untreat- side effects and addiction, and fear of legal
in medical ed pain. The Society for Neuroscience, the consequences when controlled substances are
expenses, lost largest organization of brain researchers, esti- used.”7 The American Medical Association
mates that 100 million Americans suffer from stated in a 1997 news release that 40 million
wages, and other chronic pain.1 The American Pain Foundation, Americans suffer from serious headache pain
costs, including a professional organization of pain specialists, each year, 36 million from backaches, 24 mil-
50 million puts the number at 75 million—50 million lion from muscle pains, and 20 million from
from serious chronic pain (pain lasting six neck pain. An additional 13 million suffer
workdays. months or more), and an additional 25 million from intense, intractable, unrelenting pain not
from acute pain caused by accidents, surgeries, related to cancer. Most of those patients, the
and injuries. The societal costs associated with AMA warned, receive inadequate care because
untreated and undertreated pain are substan- of barriers to pain treatment.8 A 2004 survey
tial. In addition to the obvious cost of needless of the medical literature published in the
suffering, damages include broken marriages, Annals of Health Law found documented wide-
alcoholism and family violence, absenteeism spread undertreatment of pain among the ter-
and job loss, depression, and suicide.2 The minally ill, cancer patients, nursing home resi-
American Pain Society, another professional dents, the elderly, and chronic pain patients, as
group, estimates that in 1995 untreated pain well as in emergency rooms, postoperative
cost American business more than $100 billion units, and intensive care units.9
in medical expenses, lost wages, and other costs, One reason chronic pain remains under-
including 50 million workdays.3 A 2003 article treated is that there are few doctors who spe-
in the Journal of the American Medical Association cialize in the field. Dr. J. David Haddox, the vice
puts the economic impact of common ailments president of health affairs at Purdue Pharma
alone—such as arthritis, back pain, and L.D., the manufacturer of long-acting opioid
headache—at $61.2 billion per year.4 medications OxyContin and MSContin, esti-
Chronic pain can be brought on by a wide mates that between four or five thousand doc-
range of illnesses, including cancer, lower back tors who specialize in pain management treat
disorders, rheumatoid arthritis, shingles, post- the 30 million chronic pain patients who seek
surgical pain, fibromyalgia, sickle cell anemia, treatment in the United States10—about one
diabetes, HIV/AIDS, migraine and cluster doctor for every 6,000 patients. In Florida, just 1
headaches, pain from broken bones, sports percent or 574 of the state’s 56,926 doctors pre-
injuries, and other trauma. scribed the vast majority of narcotic drugs paid
According to one 1999 survey, just one in for by Medicaid in 2003.11
four pain patients received treatment ade- The shortage of pain doctors can in part be
quate to alleviate suffering.5 Another study of explained by the relatively new, dynamic
children who died from cancer at two Boston nature of pain medicine as well as society’s
hospitals between 1990 and 1997 found that aversion to narcotics. It wasn’t until the 1980s
almost 90 percent of them had “substantial that physicians who specialized in opioid
suffering in the last month, and attempts to treatment for pain associated with terminal
control their symptoms were often unsuccess- cancer began to advocate the same treatment
ful.”6 In a formal policy statement issued in for nonterminal chronic pain patients.12 The
1999, the California medical board found “sys- fact that the field is so novel has not only pre-
tematic undertreatment of chronic pain,” vented physicians from seeking it out as a spe-

cialty, it initially caused a great deal of debate drug dealers. Those highly publicized indict-
within the medical community. Though ments and prosecutions have frightened many
many physicians now approve of opioid thera- physicians out of the field of pain management,
py for nonterminal chronic pain, there was leaving only a few thousand doctors in the
some initial resistance, from both inside and country who are still willing to risk prosecution
outside the medical community. “There’s still and ruin in order to treat patients suffering
a fear of opiates,’’ University of California at from severe chronic pain.17 One 1991 study in
San Francisco pain expert Allan Basbaum told Wisconsin, for example, found that over half
the San Francisco Chronicle, “The word ‘mor- the doctors surveyed knowingly undertreated
phine’ scares the hell out of people. To many pain in their patients out of fear of retaliation
patients, morphine either means death or from regulators.18 Another 2001 study of
addiction.”13 In an article for Ramifications, a California doctors found that 40 percent of pri-
newsletter for pain specialists, Dr. Karsten F. mary care physicians said fear of investigation
Konerding of the Richmond Academy of affected how they treated chronic pain.19 In
Medicine compares the contemporary prac- states where state regulatory bodies aggressive-
tice of pain medicine with the infant field of ly monitor physicians’ narcotics-prescribing
radiology at the turn of the 19th century. One habits, there is even more reticence among doc-
London newspaper at the time, Konerding tors to adequately treat pain.20
A 2001 study
notes, called radiographs of bones and organs “The medical ambiguity is being turned of California
“a revolting indecency.”14 into allegations of criminal behavior,” Dr. doctors found
In addition to a reluctance to enter an Russell K. Portenoy told the Washington Post.
emerging and not altogether accepted field, Portenoy is a pain specialist at Beth Israel that 40 percent
physicians specializing in pain medicine can Medical Center in New York, and is consid- said their fear of
also find themselves caught in a damned-if- ered one of the fathers of opioid pain therapy.
you-do, damned-if-you-don’t conundrum “We have to draw a line in the sand here, or
an investigation
with some patients. This study deals primar- else the treatment will be lost, and millions of affected how they
ily with the government’s efforts to minimize patients will suffer.”21 treated chronic
the overprescribing of painkillers, but several
physicians have also been sued for underpre- pain.
scribing, including one California physician A Brief History of
who was successfully sued in 2001 for $1.5 Painkillers and the Law
But a significant reason pain is undertreat- From the introduction of heroin from the
ed—and increasingly so—is the government’s 1880s until about 1920, narcotics were unregu-
decision to prosecute pain doctors who it says lated and widely available in the United States.22
overprescribe prescription narcotics. According Drug addiction was largely accidental, due to
to the federal government, a small group of the public’s ignorance about the habit-forming
doctors is prescribing hundreds of millions of properties of morphine, the most popular
dollars of such drugs, many of which are find- highly addictive drug of the era. Though widely
ing their way to the black market, contributing used for medical operations and convalescence,
to an epidemic of addiction, crime, and death.16 morphine was also used in everyday potions
Over the last several years, federal and state and elixirs. The drug was commonly regarded
prosecutors have prosecuted licensed physi- as a universal panacea, used to treat as many as
cians for drug distribution, fraud, manslaugh- 54 diseases, including insanity, diarrhea, dysen-
ter, and even murder for the deaths of people tery, menstrual and menopausal pain, and
who misused and/or overdosed on prescription nymphomania.23 Opiates were as readily avail-
painkillers. If convicted, those physicians are able in drug stores and grocery stores as aspirin,
subject to the same mandatory drug sentencing serving many of the same functions that alco-
guidelines designed to punish conventional hol, tranquilizers, and antidepressants do

today. That perception changed during the pro- The Harrison Narcotics Act was repealed
gressive era of the early 20th century, when the in 1970, but was replaced by the Drug Abuse
government criminalized the common use of Prevention and Control Act.35 DAPCA, along
opium.24 with the 1975 Supreme Court ruling in the
The first federal law to criminalize the non- case U.S. v. Moore, reaffirmed the legality of
medical use of drugs was the Harrison Act of the Harrison Act’s criminalization of doctors
1914, which outlawed the nonmedical use of who treat addicts by prescribing controlled
opium, morphine, and cocaine.25 The law was pharmaceuticals.36 In Moore, the Supreme
supported by advocates of Prohibition.26 Court confirmed that physicians who are
Section 2 of the Harrison Act made it illegal licensed by the Drug Enforcement Agency to
for any physician or druggist to prescribe nar- prescribe narcotics under Title II of DAPCA
cotics to an addict, effectively turning a quar- (called the federal Controlled Substances
ter-million drug-addicted citizens and their Act) “can be prosecuted when their activities
doctors into criminals.27 By 1916, 124,000 fall outside the usual course of professional
physicians; 47,000 druggists; 37,000 dentists; practice.”37 A doctor could be criminally
11,000 veterinarians; and 1,600 manufactur- charged with unlawfully prescribing (or
ers, wholesalers, and importers had registered “diverting”) highly addictive narcotic drugs
with the Treasury Department, as required by that the DEA classifies as Schedule II “con-
the Harrison Act.28 Almost as soon as they had trolled substances.” Even though it was
registered, hundreds of doctors were arrested passed during a period of general drug toler-
and prosecuted for prescribing narcotics to ance, DAPCA would prove to be a potent
addicted patients.29 During the first 14 years weapon in later years as the War on Drugs
of the act, U.S. attorneys prosecuted more intensified.
than 77,000 people, mostly medical profes-
sionals, for violating the act.30 Between 1914
and 1938, about 25,000 doctors were arrested A New Mission for the DEA
under the terms of the Harrison Act for giving
narcotic prescriptions to addicts.31 Many were As the federal government’s chief drug law
eventually put on trial, and most lost their rep- enforcement agency since 1973, the DEA’s
utations, careers, and/or life savings. By 1928, mission has been to “bring to the criminal
the average sentence for violation of the and civil justice system substances destined
Harrison Act was one year and 10 months in for illicit traffic in the U.S.”38 Until the 1990s,
prison.32 More than 19 percent of all federal the DEA focused its resources primarily on
prisoners were incarcerated for narcotics illegal black market drugs, such as heroin,
offenses.33 Clinics closed down, and physi- cocaine, crack cocaine, ecstasy, and marijua-
cians had little choice but to abandon thou- na, in urban areas.
sands of addicted patients. A black market for But in 1999 the DEA came under heavy
narcotics soon arose. criticism from Congress on the grounds that
The DEA would With the endorsement of powerful public there was no “measurable proof” that it had
figures such as Secretary of State William reduced the illegal drug supply in the coun-
need to find a Jennings Bryan, Captain Richmond Pearson try.39 In 2000 and 2001 the Department of
new front for the Hobson (the “Great Destroyer” of alcohol Justice, which administers the DEA, gave the
War on Drugs, and narcotics addiction and the Anti-Saloon agency a highly critical rebuke, and asserted
League’s highest-paid publicist), and Harry J. that the Drug Enforcement Agency’s goals
one that could Anslinger (the first commissioner of nar- were not consistent with the president’s fed-
produce tangible, cotics and former assistant commissioner of eral National Drug Control Strategy.40 The
Prohibition), the U.S. government inaugurat- DEA would need to find a new front for the
measurable ed an aggressive, unprecedented pursuit of War on Drugs, one that could produce tangi-
results. physicians and their addicted patients.34 ble, measurable results.

The Controlled Substances Act empow- drug epidemic beginning in Appalachia and Hutchinson
ered the DEA to regulate all pharmaceutical spreading to the East Coast and Midwest, announced that
drugs. In 2002 Glen A. Fine, the inspector infecting suburban, urban, and rural neigh-
general of the Department of Justice, asked borhoods across the country: the DEA would
why the DEA wasn’t doing more to combat reallocate many
prescription drug abuse when it was “a prob- In the past, Americans viewed drug
lem equal to cocaine.”41 Fine claimed that, abuse and addiction as an overwhelm-
of its resources
while 4.1 million Americans used cocaine in ingly urban problem. As the drug prob- from illegal
2001, 6.4 million illegally used prescription lem escalated, drugs began to stream drugs in urban
narcotic painkillers that same year. He also into rural neighborhoods throughout
claimed that the illicit use of pain medication small town America. Residents began to areas to illicit
accounted for 30 percent of all emergency feel the impact of drugs such as mari- prescription
room drug-related deaths and injuries. juana, cocaine, methamphetamine, drugs in rural
In 2001 the DEA had already announced a MDMA, heroin, and OxyContin, which
major new anti-drug campaign: the OxyContin entered their towns at an alarming rate. areas in order to
Action Plan.42 The agency underscored the Violence associated with drug traffick- address the
threat of prescription drug abuse by asserting ing also became part of the landscape in
that the number of people who “abuse con- small cities and rural areas.46
emerging opioid
trolled pharmaceuticals each year equals the threat.
number who abuse cocaine—2 to 4 percent of This was the first time that the DEA had
the U.S. population.”43 The agency also claimed grouped a legal, prescription drug with illicit
that prescription drugs increased the number drugs, though it wouldn’t be the last.
of overdose deaths by 25 percent and account- Government officials like Hutchinson have
ed for 20 percent of all emergency room visits gone on to make frequent public statements
for drug overdoses.44 Criticism from Congress putting OxyContin in close rhetorical prox-
and the Department of Justice the following imity to cocaine, heroin, and other drugs
year reaffirmed the agency’s determination to with a proven record for generating public
crack down on prescription drugs. The fear. During congressional testimony in April
OxyContin plan would elevate a legal, prescrip- 2002, Hutchinson explained the necessity for
tion drug to the status of cocaine and other renewed vigilance in the War on Drugs, and
Schedule II substances. That shift put pain doc- why the new front against prescription
tors in the DEA’s crosshairs, as susceptible to painkillers was necessary. He announced that
investigation as conventional drug dealers. In the DEA would reallocate many of its
September of 2003, at the 69-count indictment resources from illegal drugs in urban areas to
of Virginia doctor William Hurwitz, U.S. illicit prescription drugs in rural areas in
Attorney Mark Lytle claimed that the physician order to address the emerging opioid threat.
was complicit in the deaths of three patients, Hutchinson said that the DEA would work
and compared William Hurwitz to a “street- with local and state law enforcement agen-
corner crack dealer.” Lytle further argued that cies in the effort, and would use its Asset
Dr. Hurwitz posed such a threat to the com- Forfeiture Fund to help state and local offi-
munity that he should be denied bail.45 cials finance the new initiative.47
The OxyContin Action Plan bore a remark- The DEA’s public relations effort linking
able resemblance to the Harrison Act in that it a pain medication like OxyContin to cocaine,
enabled the federal government to prosecute heroin, and other prohibited substances was
physicians who prescribed an otherwise legal a marked departure from its traditional mis-
narcotic drug, due to unfounded fears of a sion. In fact, the DEA had created a new mis-
“dope menace” sweeping the country. DEA sion for itself—combating the illegal diver-
commissioner Asa Hutchinson described the sion of otherwise legal medication. Where
nonmedical use of OxyContin as a deadly new the conventional drug war targeted black

markets and the unknown, hard-to-quantify OxyContin pills or prescriptions at a crime
entities that come with them, the new mis- scene, or a family member or witness merely
sion offered in practicing physicians a pool of mentions the presence of OxyContin, the
registered, licensed, cooperative targets who death is also confirmed as “OxyContin-veri-
kept records, paid taxes, and filled out a vari- fied.”51 Obviously the mere presence of
ety of forms. OxyContin in the system of the deceased, or
the mere mention of the drug by friends or
family members is far from verification that
Justifying the OxyContin OxyContin—either alone or in conjunction
Campaign with other factors—actually caused a prema-
ture death.
In an effort to justify its national cam- Third, overdose victims tend to have multi-
paign against OxyContin, the DEA contacted ple drugs in their bodies.52 Approximately 40
775 medical examiners from the National percent of the autopsy reports of OxyContin-
Association of Medical Examiners in 2001 related deaths showed the presence of Valium-
and instructed them to report “OxyContin- like drugs. Another 40 percent contained a sec-
related deaths” for 2000 and 2001.48 On the ond opiate such as Vicodan, Lortab, or Lorcet,
The new basis of those reports, the DEA subsequently in addition to oxycodone. Thirty percent
mission offered announced 464 “OxyContin-related deaths” showed an antidepressant such as Prozac, 15
in practicing over those two years.49 percent showed cocaine, and 14 percent indi-
But the conclusions the DEA drew from cated the presence of over-the-counter antihis-
physicians a pool this data are significantly flawed. tamines or cold medications. Deaths like
of registered, First, the DEA’s criteria for “OxyContin- those could be the result of any of the drugs
related deaths” are problematic. There are 58 present, drugs working in combination, or
licensed, pain relief drugs that contain oxycodone. one or more drugs plus the effects of other
cooperative OxyContin is simply one of three single-entity, conditions, such as illness or disease. Indeed,
targets who kept long-acting, oxycodone drugs. There are the March 2003 issue of the Journal of
numerous other less potent, short–acting, oxy- Analytical Toxicology found that of the 919
records, paid codone drugs, such as Percocet, Percodan, and deaths related to oxycodone in 23 states over a
taxes, and filled Roxicet that also contain nonnarcotic pain three-year period, only 12 showed confirmed
out a variety of relievers such as aspirin or Tylenol. OxyContin evidence of the presence of oxycodone alone in
is Purdue Pharma’s brand name drug. It’s pop- the system of the deceased.53 About 70 percent
forms. ular because it provides long-acting relief from of the deaths were due to “multiple drug poi-
pain for up to 12 hours, which enables pain suf- soning” of other oxycodone-containing drugs
ferers to sleep through the night. Since there is in combination with Valium-type tranquiliz-
no chemical test to distinguish OxyContin ers, alcohol, cocaine, marijuana, and/or other
from the other oxycodone drugs, it is difficult narcotics and anti-depressants.54 That is
to see how the DEA could definitively assert strong evidence that many of the deaths
that a death attributable to oxycodone is due to attributed to OxyContin by government offi-
OxyContin and not other short-acting oxy- cials are not the result of unknowing pain
codone drugs. Nevertheless, the DEA counts as patients who grew addicted and overdosed,
an “OxyContin-related death” any death in but of habitual drug users who may have used
which oxycodone is detected without the pres- the drug with any number of other sub-
ence of aspirin or Tylenol.50 stances, any one of which could have con-
Second, if an OxyContin tablet is found in tributed to overdose and death.
the gastrointestinal tract of a deceased person, In the absence of opioids like OxyContin,
the DEA labels it an “OxyContin-verified habitual users will, in all likelihood, merely
death,” regardless of other circumstances. switch to more available drugs. However,
Even more problematic, if investigators find pain patients who rely on the drug for relief

don’t have that option. They’re far more like- Hutchinson testified before Congress in 2002
ly to suffer from the scarcity caused by the that OxyContin delivers a “heroin-like high,”
DEA’s crackdown than are the common drug and that the drug has led to an “increase in
abusers the agency claims it is targeting. criminal activity.”59 Many mainstream media
A final problem with the DEA’s claims of an reports echoed these claims. Newsweek, for
OxyContin epidemic is the agency’s inflated example, ran a story in 2002 about “Oxybabies,”
estimate of risk of death. In 2000 physicians the children of pregnant women on
wrote 7.1 million prescriptions for oxycodone OxyContin, who bore a striking resemblance to
products without aspirin or Tylenol, 5.8 mil- the rash of “crack babies” reported in the
lion of them for OxyContin.55 According to the 1980s.60 The article did point out that despite
DEA’s own autopsy data, there were 146 stories that OxyContin abuse has “swept
“OxyContin-verified deaths” that year, and 318 through parts of Appalachia and rural New
“OxyContin-likely deaths,” for a total of 464 England,” the number of documented cases of
“OxyContin-related deaths.”56 That amounts addicted newborns is small, “in the dozens,”
to a risk of just 0.00008 percent, or eight deaths and that “OxyContin, like other opiates, does-
per 100,000 OxyContin prescriptions—2.5 n’t appear to cause birth defects.” After citing a
“verified,” and 5.5 “likely-related.” Even those few anecdotal cases of newborns with some
figures are calculated only after taking the health problems that may or may not have been
DEA’s troubling conclusions about causation related to OxyContin, reporter Debra
at face value. Rosenberg still ended the article by questioning
By contrast, approximately 16,500 people whether Oxybabies are a “blip—or an epidemic
die each year from gastrointestinal bleeding in the making.” But the article’s evidence indi-
associated with nonsteroidal anti-inflamma- cates the former, so strongly in fact that one
tory drugs (NSAIDs) like aspirin or ibupro- wonders why an article on Oxybabies was nec-
fen.57 NSAIDS aren’t as effective as opioids at essary in the first place.
treating severe, chronic pain. Both classes of Newspapers and magazines reported on
painkillers have beneficial medical uses. One the alleged rising death toll from OxyContin,
is also found on the black market and may and that the outbreak in opioid abuse posed a
lead to occasional deaths by overdose. The greater threat to public health and welfare
other isn’t used recreationally, but causes 35 than cocaine. Soon, arrest and overdose statis-
times more deaths per year. tics were juxtaposed with OxyContin sales fig-
Given these numbers, all of the time, ener- ures, painting the grim picture of an American
gy, tax dollars, and worry expended on eradi- pharmaceutical company willing to peddle
cating the OxyContin “threat”—not to men- addiction and death for a quick buck.
tion the menace to civil liberties—seems A few examples:
unfounded. Pain patients are
• Time ran a story in January 2001, report- far more likely
Another Bout of Drug Hysteria ing that “OxyContin may succeed crack
In order to justify its crackdown on pre- cocaine on the street.”61 In Pulaski, to suffer from the
scription painkillers, the federal government Virginia, OxyContin had overtaken co- scarcity caused
would first need to persuade the public of the caine and marijuana, Time reported, and
threat posed by prescription opioids. Unfor- property crime was up 50 percent. Police by the DEA’s
tunately, the media has been far too willing to in three states reported robberies of phar- crackdown than
accept the DEA’s claims at face value, just as it macies, as well as the homes of people are the common
has with previous drug “epidemics.”58 known to take OxyContin legitimately
To convince the public that there is an opi- (how the burglars knew who was taking drug abusers the
oid drug threat, the DEA compared OxyContin the drug isn’t clear). Both of course are agency claims it is
to crack, cocaine, and heroin, the most feared means by which OxyContin may have
drugs of the 1980s and ’90s. Commissioner Asa found its way to the street that wouldn’t

The medical require prescriptions from a diverting “involving oxycodone” increased from 3,190 in
evidence doctor. Still, the article seemed to focus on 1996 to 6,429 in 1999. The Times article doesn’t
physicians. U.S. attorney Jay McCloskey give a source or context when it reports that
overwhelmingly was described in the article as a man “wag- “federal data” show an increase in ER visits
indicates that ing a war against the doctors who write “involving oxycodone.” But presumably, they
prescriptions.” come from the Drug Abuse Warning Net-
when adminis- • On February 3, 2001, US News and World work—or DAWN—report, published by the U.S.
tered properly, Report published an article about the dan- Department of Health and Human Services.
opioid therapy ger of OxyContin under the headline That report’s findings seem to mirror the num-
“The ‘Poor Man’s Heroin.’”62 The article bers in the Times.64 But the DAWN report only
rarely, if ever, featured Dr. John F. Lilly, a 48-year-old cites “mentions” of oxycodone-related drugs in
results in orthopedist and proprietor of a pain clin- emergency room reports, which can include
“accidental ic who was also under investigation for cases in which oxycodone medication had
diversion. Prosecutors claimed that Dr. nothing to do with why the patient came to the
addiction” or Lilly ran a “pill mill” that supplied illegal emergency room. In fact, in more than 70 per-
opioid abuse. narcotics to addicts in the slums of the cent of emergency room visits involving oxy-
industrial city of Portsmouth, Ohio. Local codone, patients mentioned the drug in con-
law enforcement officials told the maga- junction with at least one other controlled
zine that OxyContin abuse was reaching drug. Certainly, abuse of increasingly abundant
near-epidemic levels in rural areas. Shortly oxycodone medication will lead to some
after Dr. Lilly opened his clinic, drug-relat- increase in emergency room visits attributable
ed crimes apparently started to increase. solely to the drug. But the drug’s increasing
But police also claimed that burglaries availability also means that it’s going to be pre-
increased 20 percent in 2000, again sug- sent in more people who visit emergency rooms
gesting that the drug was getting to the for other reasons. And that more people are
street by means other than doctors’ pre- abusing the drug is also no reason to suspect
scriptions. that corrupt physicians are the source of the
• On February 8, 2001, the New York Times problem.
reported a claim by U.S. attorney Joseph The most unfortunate effect of these kinds
Famularo that at least 59 people had died of stories is that they reinforce existing qualms
from OxyContin overdoses in Eastern about opioids. Patients, their families, and
Kentucky in 2000 alone.63 He said Oxy- even caretakers understandably get nervous
Contin had set off a wave of pharmacy when they hear “morphine,” or “opioid thera-
burglaries, emergency room visits, and py,” which naturally sounds a lot like “opium.”
physician arrests. Rick Moorer, an investi- In truth, however, the medical evidence over-
gator with the state medical examiner’s whelmingly indicates that when administered
office in Roanoke, Virginia, reported that properly, opioid therapy rarely, if ever, results
there were 16 deaths in southwestern in “accidental addiction” or opioid abuse.65
Virginia due to OxyContin in combina- Most recently, a 2005 study by researchers at
tion with other drugs and alcohol. the Minneapolis VA Medical Center conclud-
ed, “doubts or concerns about opioid efficacy,
Again, there’s simply no test to determine toxicity, tolerance, and abuse or addiction
whether or not OxyContin caused or con- should not be used to justify the withholding
tributed to those overdose deaths. And even if of opioids from patients who have pain.”66
there were such a test, it’s just as likely the drugs Temple pharmacology professor Robert
came from Internet pharmacies, or home or Raffa told Time magazine, “The idea that
drug store robberies as from diverting doctors. your mom will go into a hospital, be exposed
The Times article also reported data showing to morphine, and automatically become an
hospital emergency room visits by people addict is just plain wrong.”67

The distinction—which seems especially and what is simply physical depen-
difficult for law enforcement officials and pol- dence. Most people who take morphine
icymakers to make—is between “physical for more than a few days become phys-
dependence” and “addiction.” A patient inca- ically dependent, suffering temporary
pacitated by pain will naturally become depen- withdrawal symptoms—nausea, muscle
dent on any medication that gives him relief. cramps, chills—if they stop taking it
But that’s quite different from addiction. abruptly, without tapering the dose.
Opioid therapy can give patients the freedom But few exhibit the classic signs of
to lead normal lives, whereas addiction ruins addiction: a compulsive craving for the
lives. It’s a confusion that can be tragic. One drug’s euphoric or calming effects, and
doctor told Time he was treating a terminally continued abuse of the drug even when
ill boy whose father didn’t want his son on to do so is obviously self-destructive.
morphine because he was “afraid the boy In three studies involving nearly
would become an addict.” As the Time reporter 25,000 cancer patients, [researcher
wrote, “In his grief over the imminent loss of Russell] Portenoy found that only
his son, it seems, the father failed to see the seven became addicted to the narcotics
absurdity of worrying about long-term addic- they were taking . . . “If we called this
tion in a child who is dying in pain.”68 drug by another name, if morphine
There is a
The odd thing is that well before the didn’t have a stigma, we wouldn’t be distinction—
OxyContin hysteria and ensuing DEA campaign, fighting about it,” says [researcher which seems
many media outlets were making those same Kathleen] Foley.71
points and providing balanced reporting on the especially
undertreatment of pain. The Time article noted Even physicians can fall victim to the difficult for law
above came out in 1997. Also in 1997, U.S. News “addiction” versus “dependence” confusion—
and World Report ran a 4,400-word cover story on giving rise to yet another cause of undertreat-
the plight of pain patients.69 In one passage, the ment. Twenty-five percent of Texas physi- officials and
magazine eloquently laid out the problem: cians in one survey said they believed any policymakers to
patient given opioids is at risk of addiction.72
What is lacking is not the way to treat Thirty-five percent of physicians in a 2001 make—between
pain effectively but the will to do it. For study said they’d never prescribe opioids on a “physical
a quarter of a century, pain specialists short-term basis, even after a thorough eval- dependence” and
have been warning with increasing stri- uation, a response the survey’s researchers
dency that pain is undertreated in attributed to unfounded fears of addiction.73 “addiction.”
America. But a wide array of social forces Again, this despite overwhelming evidence
continue to thwart efforts to improve that properly prescribed and used opioids
treatment. Narcotics are the most pow- rarely, if ever, lead to addiction.
erful painkillers available, but doctors
are afraid to prescribe them out of fear “OxyContin under Fire”
they will be prosecuted by overzealous One of the more egregious examples of
law enforcers, or that they will turn their media-induced OxyContin hysteria was Doris
patients into addicts . . . . “We are phar- Bloodsworth’s five-part Orlando Sentinel series
macological Calvinists,” says Dr. Steven from October 19–23, 2003, entitled “Oxy-
Hyman, director of the National Contin under Fire.”74
Institute of Mental Health.70 The Sentinel series was heavily advertised
and promoted as an exposé of the OxyContin
The authors go on to state: epidemic sweeping the country. Including
Bloodsworth’s pieces, the Sentinel ran 19
But at the heart of the debate is confu- OxyContin-related articles and editorials that
sion about what constitutes addiction month, complete with photos of victims,

flashy layouts, and insert boxes designed to Sentinel’s review of thousands of documents,
elicit maximum emotional impact. The series including 500 autopsy reports by Florida’s
spotlighted several patients described as “acci- medical examiners. The paper claimed that a
dentally addicted” to OxyContin. Some of remarkable 83 percent of the 247 cases of
them, Bloodsworth reported, experienced reported drug overdose deaths over that peri-
painful withdrawal effects. Some saw their od were directly attributable to OxyContin.78
families fall apart. Some died of overdoses or It would be difficult to overstate how much
committed suicide. Bloodsworth alleged that the Sentinel series contributed to nationwide
white males aged 30 to 60 who experience OxyContin fears. It prompted an anti-opioid
back pain are particularly likely to become grass-roots protest movement in Florida. The
addicted to OxyContin, and to eventually die newspaper’s critique of lawmakers for “doing
from that addiction.75 nothing” stirred emotion and legislative action
One of the featured victims was David on the local, state, and national level. In
Rokisky, a 36-year-old former Army Airborne November 2003, one month after the series
soldier and police officer living in Tampa, appeared, protestors from all over the country
Florida. According to Bloodsworth, Rokisky converged on Florida to picket Gov. Jeb Bush
had a bodybuilder’s physique, a beautiful and his wife, who were attending a three-day
young wife, a high-paying job as a computer conference on youth drug abuse in Orlando.
company executive, and a beachfront condo. Members of “Relatives against Purdue Pharma”
Rokisky’s life was idyllic, Bloodsworth report- carried poster-sized photos of family and
ed, until a doctor prescribed OxyContin to friends who allegedly died from OxyContin
treat a minor backache. According to the overdoses.79 Victor Del Regno, a Rhode Island
Sentinel, Rokisky quickly became an innocent business executive whose 20-year-old son died,
victim of drug addiction. He eventually lost allegedly from OxyContin, told the Sentinel,
his job and had to undergo painful detoxifica- “We feel there has to be a way to get the word
tion. out about how deadly this drug can be.”80
The series also featured Gerry Cover, a 39- Governor Bush and state lawmakers were
year-old Kissimmee, Florida, handyman and sympathetic, and promised to put an end to
father of three. Bloodsworth reported that the “hemorrhaging of lost lives” allegedly
Cover became an addict after a doctor pre- caused by prescription painkillers.81 During
scribed OxyContin to relieve his pain from a congressional testimony inspired by the
mild herniated disc in his back. Cover subse- Sentinel series and its aftermath, Florida direc-
quently died from an accidental overdose of tor of drug control James McDonough praised
the drug. Doris Bloodsworth’s series, and cited her esti-
Bloodsworth wrote that although mem- mates of OxyContin overdose deaths. He said
bers of Congress and the FDA were aware of that in response to the Sentinel and other
“the devastation (OxyContin) has carved reports, Florida had taken “aggressive action
through Appalachia where the drug became against [diversion] criminal practices.”82
known as ‘hillbilly heroin,’” neither had done McDonough boasted that Florida law
It would be anything to slow down the epidemic. She enforcement had taken action since the Sentinel
blamed Purdue Pharma for aggressively mar- series, including the prosecutions of Dr. James
difficult to over- keting OxyContin to naïve and unscrupulous Graves (a former Navy flight surgeon), convict-
state how much doctors, who likewise used the drug to “boost ed on four counts of manslaughter for pre-
their profits.”76 According to Bloodsworth, scribing oxycodone; Dr. Sarfraz Mirza, convict-
the Sentinel series there were 573 deaths in Florida linked to oxy- ed of trafficking in OxyContin; and Dr.
contributed to codone in 2001 and 2002. By comparison, Asuncion Luyao, who was prosecuted for sever-
nationwide Bloodsworth reported that only 521 people al prescription overdose deaths.83
died of heroin overdoses during the same peri- Bloodsworth’s claims about the OxyContin
OxyContin fears. od.77 The 573 figure apparently came from the epidemic were picked up and repeated in news-

papers and media outlets all over the country. There were 317 such deaths in 2001, and 220 in After a barrage
They were even included in a General Account- 2002, giving the Sentinel its 573 deaths.89 In of criticism,
ing Office report on OxyContin abuse request- truth, even those 71 overdose deaths over the
ed by Congress. GAO cited the Sentinel series Sentinel’s two-year period are suspect. That’s the Orlando
and said that the newspaper’s investigation of because Florida’s medical examiners report Sentinel finally
autopsy reports involving oxycodone-related only 14 drug groups in autopsy reports.90 It’s
deaths found that OxyContin had been likely that there were any number of unreport-
acknowledged its
involved in more than 200 overdose deaths in ed drugs in the systems of 71 people where only errors in the
Florida since 2000.84 oxycodone was found, not to mention that any series, and in
Thanks in large part to the Sentinel series, number of them might have died for reasons
Florida today is one of the most difficult completely unrelated to drugs. For example, the February 2004
states in the country for pain patients to get deceased may also have been taking anti- announced Doris
treatment, and its legislature only narrowly depressants, heart medication, and/or diabetic Bloodsworth’s
voted down a bill establishing a statewide medications, any of which could have poten-
database to track and monitor painkiller pre- tially contributed to the cause of death. That’s resignation from
scriptions.85 particularly likely where the deceased is over 50 the paper.
years of age—true of about a third of the 71
The Sentinel Series Unravels Florida cases.91
In February of 2004, the Orlando Sentinel After a barrage of criticism, the Orlando
series on OxyContin began to fall apart. Sentinel finally acknowledged its errors in the
Investigations by Purdue Pharma and advo- series, and in February 2004 announced
cates for pain patients uncovered numerous Doris Bloodsworth’s resignation from the
and grievous errors in Bloodsworth’s reports. paper. The two editors who worked on the
The Washington Post reported that David series were also reassigned.92
Rokisky had pled guilty to drug conspiracy in In a front-page correction, the Sentinel
a cocaine case four years previous to the wrote the following:
series’ publication. Far from leading an idyl-
lic life wrecked by OxyContin, Rokisky in fact An Orlando Sentinel series in October
had a long history of domestic-abuse allega- about the drug OxyContin used a key
tions and financial problems.86 “Accidental statistic incorrectly and overstated the
addict” Gerry Cover proved to be a longtime number of overdoses caused solely by
drug abuser too, and had been hospitalized oxycodone, the active ingredient in
for an overdose on other drugs three months OxyContin and other prescription pain-
before he had been prescribed OxyContin.87 killers. . . .
Bloodsworth’s misrepresentation of Oxy- In roughly three out of four cases,
Contin overdose deaths was even more egre- medical examiners concluded that at
gious than her mischaracterizations of the least one other drug also contributed
alleged victims of the drug. The series com- to the victims’ deaths. . . . .
pletely distorted the Florida medical examiners’ According to the Sentinel’s re-exami-
drug overdose deaths data for 2000 and 2001. nation, blood samples in about 38 per-
Instead of more than 570 deaths linked to cent of the oxycodone-related deaths
OxyContin the Sentinel reported for those years, showed the presence of heroin, cocaine,
the medical examiners’ reports reveal the actual methamphetamine and/or marijuana.
total for those years was 71—35 in 2001, and 36 Many other victims also had consumed
in 2002.88 The Sentinel had included not only one or more commonly abused prescrip-
deaths where oxycodone alone was present in tion drugs, such as Xanax or Vicodin.
the system of the deceased, but also deaths in In February, the Sentinel published a
which any oxycodone product was present in story correcting factual errors about
combination with any number of other drugs. two men featured in the series. The

newspaper had labeled one of them, heroin use.” A local mayor called
David Rokisky, an “accidental addict” OxyContin “the number one health cri-
without doing background reporting sis in cities and towns at this time.”97
that would have shown he had a feder-
al drug conviction. The other, the late Despite the Sentinel fiasco, media outlets
Gerry Cover, died from an overdose continued to perpetuate OxyContin fears by
caused by a combination of drugs reiterating overdose statistics based on ques-
rather than oxycodone alone.93 tionable science and quoting public officials
without a bit of skepticism or any effort to
Despite the Sentinel’s retraction, other elicit rebuttals from drug war critics or pain
media outlets have continued to drum up the patient advocates.
OxyContin threat, many of them making the
same errors the Sentinel did. Here are a few
examples: Eradicating the Prescription
Painkiller “Threat”
• In late August of 2004, the Montreal
Gazette reported that “the prescription The DEA’s new mission to thwart the
The DEA’s painkiller nicknamed ‘hillbilly heroin’ in diversion of prescription painkillers was a sig-
Diversion the U.S., was a contributing factor in at nificant undertaking, one that would require
Control Program least 26 overdose deaths in Quebec since extra manpower and resources. As part of its
1999.”94 Remarkably, the paper went on OxyContin Action Plan, the agency carried
is also a to draw the same conclusions about out more than 400 investigations resulting in
self-financing, autopsy reporting as the Sentinel. The the arrest of 600 individuals from May 2001 to
Gazette reported that “other narcotic January 2004. Sixty percent of those cases
autonomous law substances were also detected, suggest- involved medical professionals, most of them
enforcement ing that OxyContin alone might not doctors and pharmacists (the remaining cases
agency that is have caused some deaths,” a caveat that could include manufacturers and whole-
severely undermines the alarming lead. salers).98
largely • That same month, the Ottawa Citizen To implement its new program, the DEA
unaccountable to reported that “in the past five years there participated in the Organized Crime Drug
congressional were 300 deaths in which oxycodone, Enforcement Task Force and worked coopera-
the opiate found in OxyContin and the tively with state and local drug task forces.
oversight. drug brand Percocet, was detected in the OCDETF combines the resources of federal,
body.”95 That number again means very state, and local law enforcement under the
little when not supported with other coordination of U.S. attorneys. In 2001 the
information, such as what other drugs DEA deputized 1,554 state and local officers
were found in the bodies, what illnesses from large and small police departments
the deceased were suffering from, and across the country to coordinate prescription
how many OxyContin prescriptions drug investigations. In 2002, 1,172 DEA
were written in comparison to those 300 Special Agents worked alongside 1,916 state
deaths. and local police officers in 207 separate task
• Also in August 2004, the Boston Globe ran forces.99 This sharing of resources significant-
a story on federal grants coming to the ly expanded the OxyContin Plan’s reach. To
Boston area that would be used to target see how the task force plan gave the DEA more
OxyContin abuse.96 One local official reach, consider drug war statistics from 1999.
told the Globe, “we are going to . . . bring In that year, the DEA initiated 1,699 investiga-
the danger of OxyContin right out there tions on its own but was able to extend its
so everyone is going to know how bad it investigative reach by working cooperatively
is,” and that “OxyContin use can lead to with state and local law enforcement officials

Table 1
DEA 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 61,057 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.

in more than 9,000 additional task force though with decidedly mixed results. In fact,
cases.100 The DEA also trained more than large quantities of narcotics routinely go
64,000 state and local law enforcement per- missing en route from manufacturers to
sonnel in 2001 at its Training Academy in wholesalers and from wholesalers to retailers.
Quantico, Virginia, as well as at the agency’s 22 The DEA itself acknowledges this problem.
domestic field divisions throughout the The agency notes that there is an increase in
United States.101 These task forces accounted OxyContin burglaries, thefts, and robberies
for 40 percent of the DEA’s prescription nar- of hospitals and pharmacies throughout the
cotics seizure and forfeiture cases.102 country, including at Purdue Pharma, the
The DEA’s Diversion Control Program is manufacturer of OxyContin.103
also a self-financing, autonomous law enforce- In one recent case in Arizona, nearly
ment agency that is largely unaccountable to 475,000 tablets of narcotic drugs disap-
congressional oversight. It’s mostly financed peared from Kino Community Hospital’s
by the licenses it requires all doctors, manu- pharmacy between May 1, 2002, and April 30,
facturers, pharmacists and wholesalers to pur- 2004.104 Drug stores in rural areas have also
chase, and in part by the assets it seizes when it been targets for burglars seeking OxyContin,
raids the businesses and personal finances of and the Internet has become a major under-
those same licensees. Table 1 shows the break- ground source for the drug.105 In an inves- The DEA’s
down of the DEA’s controlled substance tigative series, the Star-Ledger newspaper in
license holders as of 2002. Physicians consti- New Jersey actually ordered OxyContin over
attempt to blame
tuted 928,677 of 1,087,045 registrants, or 85 the Internet, along with other prescription physicians for the
percent of all those approved by the DEA to narcotics. The paper reported no contact drug’s street
produce, distribute, and dispense narcotics. with a physician, and the drugs were deliv-
Because prescription narcotics are legal and ered to a rented mailbox within days of plac- availability seems
regulated, the DEA can easily monitor the way ing the order.106 Given the poor job the DEA arbitrary,
physicians prescribe them. Unlike illicit drug is doing of monitoring the narcotics it’s
dealers, most physicians are law-abiding, legit- charged with overseeing, and the various
unjustified, and
imate professionals. That also makes them ways the drug apparently can move from capricious.
easier targets. manufacturers and wholesalers to the black
The DEA sets annual production quotas market, the DEA’s blame and pursuit of
for the manufacturers of narcotic drugs, and physicians for the drug’s street availability
the agency attempts to monitor the whole- seems all the more arbitrary, unjustified, and
sale and retail distribution of those drugs, capricious. “Pills are a problem in Southwest

If criminal Virginia,” one assistant U.S. attorney told the that allows law enforcement officials to keep
charges are never Roanoke Times in 2001, “And the only way you the assets of suspected drug defendants for
can get prescription pills is to go to the doc- their own, local police departments.
filed, a police tor.”107 But that’s clearly not the case. Detective Dennis M. Luken, of the Warren-
department can In 1993 Congress created the self-financed Clinton Drug and Strategic Operations Task
Diversion Control Fund, which was to be fund- Force in Lebanon, Ohio, and Treasurer of the
still bring a civil ed by narcotics licensing fees. The DEA is National Association of Diversion Drug
action against a authorized to increase the license fees to make Investigators, laid out the financial necessity of
suspected doctor sure the Diversion Control Program remains targeting physicians for investigation at a 2003
fully funded. The setup is similar to that of the training conference for drug diversion agents.112
to recover the Health Care Fraud and Abuse Control Luken, who worked on an asset forfeiture squad
cost of an Program, which monitors doctors for alleged for three and a half years, said that in an “era of
investigation. fraud and abuse with respect to Medicaid and budget cuts, forfeitures are an important way to
Medicare. In 2003 the DEA doubled its license make up for the losses.”113 Luken said that the
fees to pay for the cost of the program. Under task force arrests five doctors a year in the
DEA rules, doctors must buy licenses for three- Cincinnati area alone. Seizing a doctor’s assets
year periods at $131, while pharmaceutical to supplement strained law enforcement budg-
companies pay $1,605 per annum for licenses ets was a recurring theme at the NADDI train-
to make drugs. These licensing fees bring in ing conference, held in Ft. Lauderdale, Florida.
about $118 million a year. The Diversion Greg Aspinwall of the Miami Dade Drug Task
Control Program currently costs about $154 Force, for example, stressed the importance of
million per year. The rest of the DCP’s funding taking a task force approach to diversion inves-
comes from the annual congressional budget tigations by using the theme “spreading the
for the DEA, and from the DOJ’s Asset love.”114 He instructed trainees to get as many
Forfeiture Fund, which is financed by seizures law enforcement agencies as possible involved in
of assets from doctors and pharmacists under investigations. The method reduces costs, he
investigation for drug diversion, as well as from said, and guarantees that “everybody gets their
illicit drug dealers and users. In 2005 the DEA fair cut from the forfeitures.”115 He pointed out
requested an additional $245.4 million for drug that even if criminal charges are never filed, a
enforcement, including $32.6 million for diver- police department can still bring a civil action
sion control.108 against a suspected doctor to recover the cost of
According to the Controlled Substances an investigation.
Act, all monies or other things of value fur- In his lecture, Detective Luken also
nished by any person in exchange for con- focused on “drug-diverting” doctors and
trolled substances are subject to forfeiture.109 stressed the importance of seizing their
The money from these seizures get split assets. He urged investigators to serve search
between the law enforcement agencies mak- warrants on doctors’ offices and bank
ing the bust, and the remainder goes to the accounts and to take possession of their con-
DOJ’s Forfeiture Fund, where it’s used to tents. If the doctor does not have a sizable
coordinate more investigations. In 2002 drug bank account, Luken said, investigators
asset forfeitures totaled $441 million. And in should look at a physician’s home or office
2001 the DEA shared $179,264,498 of its building, given that both were likely paid for
asset forfeitures with local and state police with the proceeds of drug distribution.
departments.110 The total forfeiture fund was Luken implored agents to “remember that
worth about $1.2 billion by 2002.111 The vast asset forfeiture investigation should begin at
majority of asset forfeiture money is distrib- the start of your criminal case.”116 Detective
uted by the DEA to state and local law Luken discussed the cases of several physi-
enforcement agencies who work with the cians he had overseen and noted that investi-
agency on drug cases. It is a perverse system gators seized money and property from them

before they were indicted or tried for any From October 1999 through March 2002,
crime. the DEA investigated 247 OxyContin diver-
Luken then cited a number of cases in sion cases leading to 328 arrests.118 In 2001
which physicians had had their assets seized there were 3,097 total diversion investigations,
before ever being charged. One case he men- including 861 investigations of doctors.119 In
tioned, that of Dr. Eli Schneider, resulted in 2003 the DEA investigated 732 doctors, sanc-
the seizure of $220,000. Of that money, the tioned 584, and arrested 50.120 These numbers
Ohio Medicaid Fraud Control Unit received do not include physicians investigated and
$3,752, the Ohio Department of Health and arrested by the 207 DEA-deputized state and
Human Services got $24,000, the Cincinnati local task forces throughout the country.
Police Department $29,000, the FBI $14,000, Putting a total number on how many doc-
and the U.S. Department of Health and tors, nurses, and pharmacists have been inves-
Human Services $50,000. Calls to local tigated, charged, or convicted is difficult. The
authorities and public records searches don’t DEA says it no longer keeps track of such sta-
reveal whether or not Dr. Schneider was ulti- tistics. Some states account for physician
mately convicted. Many times, however, such arrests; others don’t. Virginia, for example,
forfeitures result in plea bargains or civil set- says it prosecutes on average one health care
tlements, given that the cases can drag on for professional per week.121 Many doctors do as
Pain specialists
years, and asset seizure leaves the accused with Dr. Ghassan Haj-Hamed did and settle before make an
no means to live, much less to pay attorney’s charges are brought—because after forfeiture, important
fees and court costs. The case of Kentucky they generally have no assets left to fight the
physician Dr. Ghassan Haj-Hamed is a good charges. distinction
example. The DEA sued Dr. Haj-Hamed in between patients
2002, accusing his clinic of diversion and drug Investigating and Apprehending Pain
distribution. After more than two years, the Patients and their Doctors
who depend on
doctor agreed to settle, paying $17,000 and The DEA defines an “addict” as “any individ- opiates to
handing over two automobiles in exchange for ual who habitually uses any narcotic drug so as function
the federal government dropping its suit for to endanger the public morals, health, safety, or
$133,000. Haj-Hamed’s lawyer told the welfare, or who is so far addicted to the use of normally and
Kentucky Post that the government’s practice of narcotic drugs as to have lost the power of self- addicts who take
seizing all of a doctor’s assets, then expecting control with reference to his addiction.”122 The drugs for
him to fight the case, all while still paying DEA’s conception of an addict, then, includes
taxes and earning a living, “inevitably puts the what pain specialists call “pseudoaddicts”—pain euphoria. The
person in a position where they have to set- patients who require opiates to lead a normal DEA makes no
tle.”117 Prosecutors haven’t yet decided life. Pain specialists make an important distinc-
whether or not to pursue criminal charges. tion between patients who depend on opiates to
such distinction.
Because the Diversion Control Program is function normally—to get out of bed, tend to
self-financed, it is nearly immune from con- household chores, and hold down jobs—and
gressional oversight. Its administrators aren’t addicts who take drugs for euphoria, and whose
required to justify its existence, its tactics, or its lifestyles deteriorate as a result of taking opiates,
efficacy when it comes time for appropria- instead of improving. The DEA makes no such
tions. The program also creates a scenario distinction. And by classifying pain patients as
wherein doctors are required to finance inves- addicts, the agency is able to pursue their doc-
tigations of their colleagues, copractitioners, tors as “distributors.”
or even themselves. Should the doctors’ col- What’s worse, due to unwavering drug laws
leagues be investigated, law enforcement offi- mandating that possession of any controlled
cials are encouraged to seize their colleagues’ substance over a specified amount constitutes
assets, much of the proceeds of which then go an intent to distribute, pain patients are often
toward financing more investigations. considered “dealers” too—even if (as is most

often the case) their entire supply of prescrip- or to feed their drug habits or those of fami-
tion drugs are for their own use. ly members or girlfriends—just as common
That’s exactly what happened to Florida drug pushers do. Doctors in practice by
pain patient Richard Paey.123 Paey suffers from themselves and older doctors are often paint-
multiple sclerosis, as well as from injuries ed by investigators as rubes, easily duped by
incurred in a car accident and a botched back addicts or unable to stop freely prescribing
surgery. Given the anti-drug climate in narcotics in the manner they did during
Florida, Paey found it difficult to find a physi- more permissive times.125
cian who would prescribe the high-dose pain To target doctors, investigators look for
medication he needed to live with his injuries. “red flags” they believe are indicative of poten-
So Paey turned to his old doctor in New Jersey, tially criminal behavior. These red flags are
who wrote Paey undated prescriptions that generally circumstantial evidence found dur-
Paey then photocopied and filled. Though he ing standard criminal investigative proce-
conceded that Paey’s medication was for his dures. The problem with red flags is that what
own use, Paey’s prosecutor nonetheless may appear to be evidence of criminal behav-
charged him with “intent to distribute,” ior to an investigator without medical training
because the amount of narcotics Paey had in is often perfectly consistent with legitimate
his possession exceeded the limit needed to be medical practice, particularly in a dynamic
charged with distribution. After two mistrials, field like pain management. Criminal investi-
Paey was convicted at a third trial. Mandatory gators without medical training simply aren’t
minimum sentencing guidelines gave a reluc- qualified to tell the difference. Yet they rou-
tant judge no choice but to send Paey to tinely make such decisions, and such close
prison for 25 years and fine him $500,000. judgment calls can cause the criminal prose-
Today, Paey sits in a Florida prison with a mor- cution of an otherwise legitimate physician.
phine pump, paid for by Florida taxpayers. According to the DEA, the prosecution of
More often, however, prosecutors use the any given doctor is based on whether there is a
threat of imprisonment to get pain patients to “legitimate medical purpose” for a prescrip-
turn in their doctors, who make better targets. tion he has written or whether it is “beyond
And, of course, once pain patients can be the bounds of medical practice.” But prosecu-
called “addicts,” the government is free to go tors concede that there are no specific guide-
after the doctors who treat them as “conspira- lines or procedures to evaluate either of those
tors” in the illegal drug trade. In the case of Dr. standards. At a Healthcare Fraud Prevention
Hurwitz, around 15 of his more than 500 pain and Funds Recovery Summit in Washington,
patients over three years were lying to him and DC, in 2004, Greg Wood, a federal investigator
The DEA selling the drugs he prescribed on the black for the U.S. attorney’s office in Virginia, said
continues to market. Investigators could have alerted the government’s aim is to produce probable
Hurwitz to his unlawful patients and asked cause that a doctor (a) intentionally wrote a
lower its for his help in nabbing them—he had already narcotics prescription for patients without
evidentiary openly cooperated with law enforcement, legitimate medical needs, (b) knew the
standards, offering access to vast amounts of patient patients getting the prescriptions were
paperwork over the course of four years. addicts, or (c) knew the patients getting the
making it nearly Instead, investigators continued to let prescriptions were selling the drugs.126 Any of
impossible for Hurwitz prescribe to known dealers, then later those is sufficient for an arrest.
offered the lying patients lenient sentences in But even those guidelines are apparently
many doctors to exchange for testimony against Hurwitz.124 subject to change without notice. The DEA
determine what In his speech at the NADDI conference, continues to lower its evidentiary standards,
is and isn’t Detective Luken likened pain specialists to making it nearly impossible for many doctors
illegal drug dealers, and explained that pain to determine what is and isn’t permitted. In
permitted. doctors sell pain medication for money, sex, October 2004, the DEA disavowed the con-

tents of a pamphlet it had published for pain Substances Act should in no way interfere the In January of
doctors and pulled the digital version of the ethical practice of medicine. The DEA’s expla- 2005 the National
document down from its website.127 The FAQ nation noted that “the Government can inves-
was a working collaboration with input from tigate merely on suspicion that the law is being Association of
leading physicians and researchers in pain violated, or even just because it wants assur- Attorneys
medicine that purported to give guidance to ances that it is not.’’133 The statement went on
pain specialists worried about the DEA’s crack- to repudiate whole passages from the original
General sent a
down.128 The reversal infuriated advocates for pamphlet, and said the agency would contin- letter to the DEA
pain physicians and patients, some of whom ue its red flag system of deciding which pain expressing the
had worked with the DEA for several years to doctors to investigate. Those red flags in the
“strike a balance” between adequately treating interim policy statement include the number organization’s
pain and preventing diversion.129 The original of tablets a doctor prescribes to his patients, concern about
document included such conciliatory lan- the practice of writing more than one pre- the DEA’s more
guage as, “any physician can be duped” and scription for a patient on the same day,
pointed out that patient behavior commonly marked for later dispensing, and using “street strident approach
thought to indicate criminal behavior could slang” rather than medical terminology when to fighting
instead be “the possible effects of unrelieved discussing pain medication with patients.134
pain.” It warned that “stereotypes of what an All, incidentally, were dismissed by the DEA’s
abuser ‘looks like’ can harm legitimate patients original pamphlet as reasons in and of them-
because people who abuse prescription medi- selves to launch a criminal investigation.
cine exhibit some of the same behaviors as The DEA’s move caused three professional
patients who have unrelieved pain.”130 The associations of pain management specialists
pamphlet also made clear that DEA red flags, to take the unusual step of sending a letter to
such as prescribing prescription narcotics to the DEA calling its decision “an unfortunate
patients with a history of drug abuse or not step backward” that encourages a return to
reporting patients whom physicians suspect of “an adversarial relationship between [doctors]
abusing pain medication, are not in violation of and the DEA.”135
federal law. Most notably, the pamphlet explic- The DEA’s disavowal of its pamphlet was
itly stated, “For a physician to be convicted of also enough to push into action state offi-
illegal sale, the authorities must show that that cials increasingly alarmed by the agency’s
the physician knowingly and intentionally pre- pursuit of physicians. In January of 2005 the
scribed or dispensed controlled substances National Association of Attorneys General
outside the scope of legitimate practice.”131 sent a letter to the DEA expressing the orga-
The DEA took the extraordinary step of nization’s concern about the DEA’s more
disavowing the document, just as lawyers for strident approach to fighting diversion.
Dr. William Hurwitz, the pain specialist on Thirty state attorneys general signed the let-
trial for diversion in Virginia, attempted to ter, which said, in part,
introduce the pamphlet as evidence at his trial.
Hurwitz’s prosecutors objected, and a federal Having consulted with your Agency
judge decided in favor of the prosecutors, rul- about our respective views, we were
ing that the DEA guide did not carry the force surprised to learn that DEA has appar-
of law, and therefore was not admissible.132 ently shifted its policy regarding the
The DEA later explained that it disavowed balancing of legitimate prescription of
the pamphlet because of language at odds pain medication with enforcement to
with the DEA’s insistence that they are not prevent diversion, without consulting
bound by any standard of evidentiary require- those of us with similar responsibilities
ment to commence an investigation, includ- in the states. . . .
ing the well-established principle in federal The Frequently Asked Questions and
law that the enforcement of the Controlled Answers for Health Care Professionals

and Law Enforcement Personnel issued invasive procedures to uncover red flags. The
in 2004 appeared to be consistent with National Association of Drug Diversion
these principles, so we were surprised Investigators, for example, instructs cops to
when they were withdrawn. The Interim conduct video surveillance of doctors’ offices
Policy Statement, “Dispensing of Con- as if they were “crack houses.”138 Investigators
trolled Substances for the Treatment of have also picked through trash at doctors’
Pain,” which was published in the offices and private residences. Employees of
Federal Register on November 16, 2004, suspected doctors have been interviewed at
emphasizes enforcement, and seems their homes. Police have sought out disgrun-
likely to have a chilling effect on physi- tled former employees who might incriminate
cians engaged in the legitimate practice their former employers.139
of medicine. As Attorneys General have The relationship between a doctor and his
worked to remove barriers to quality care patient is crucial to the proper assessment and
for citizens of our states at the end of life, treatment of the patient’s condition. The
we have learned that adequate pain DEA’s aggressive investigative procedures poi-
management is often difficult to obtain son that relationship from both sides. Pain
because many physicians fear investiga- patients have been asked to testify against
The DEA’s tions and enforcement actions if they their doctors. Pain patient advocacy groups
aggressive prescribe adequate levels of opioids or report patients being accosted in the parking
investigative have many patients with prescriptions lots of their physicians’ offices. These kinds of
for pain medications.136 procedures threaten to make some doctors
procedures suspicious of every patient they see—even
poison the The end result of these procedures is that longtime patients—a situation further compli-
investigators and prosecutors without med- cated by the DEA’s disavowing its guidelines
doctor-patient ical training are now in the position of inter- pamphlet. Doctors and patients are then
relationship from preting whether or not a suspected physician’s forced to play a game. Patients must negotiate
both sides. actions are consistent with traditional medical between indicating enough pain to their doc-
practice or worthy of an investigation. The red tors to warrant more medication, but to avoid
flag system is meant to aid them in that deci- appearing desperate—one sign doctors are
sion. At the July 2003 NADDI conference, supposed to look for in identifying diverting
investigators were told what practices—or red patients. Some patients simply stop reporting
flags—might indicate criminal behavior. These pain and suffer silently, for fear of becoming
included burdensome.140 One study published in the
Journal of Clinical Oncology found that when
• Long lines of patients waiting to see doc- asked to match their patients’ pain intensity
tors. on a scale of 1 to 10, 35 percent of physicians
• Patients who are poorly dressed. failed to match their patients’ descriptions
• Out-of-state automobile licenses in doc- within two points.141 It’s now not at all clear to
tors’ parking lots. doctors at what point they’re legally obligated
• Patients who arrive and are taken with- to report a patient they suspect of diverting
out appointments. prescribed medication.
• Patient visits lasting less than 25 min- One pain patient and mother of three told
utes. her local newspaper, “Doctors and nurses look
• Doctors who are licensed to practice in at you different if they know the medications
more than one state. you are on. They flag your file and view you as
• Doctors who dispense large amounts of an addict.”142 Pain specialists at a professional
narcotics from one office.137 conference in Tucson, Arizona, advised doc-
One of the many problems with the red tors to install security cameras, mandate urine
flag system is that investigative bodies use tests, and frisk patients upon entering their

offices to ensure they weren’t bringing in included
someone else’s urine—all to ensure that the
patients weren’t lying to them and protect the • A doctor who told a pain patient where
doctors from prosecution down the line.143 “I he could get his prescriptions filled.
have to be a detective,” a Tennessee doctor told • A physician who asked his patients
the Wall Street Journal.144 One of Dr. Hurwitz’s which drugs they prefer and which
patients told the Washington Post that dosage worked best for them.
Hurwitz’s treatment saved his life and was • Doctors who prescribed the same drug
worried what he’d do when Hurwitz lost his in the same dosage to many patients,
license. He found another doctor, but only including to more than one member of
after considerable searching. Even then, “they the same family.147
treat me like a criminal,” he said. “I only get a
one-week supply at a time, and sometimes I These aggressive procedures haven’t always
have to wait for hours at the pharmacy. And been the norm. University of Florida professor
the pharmacist who fills my prescriptions is of pharmacy and lawyer David Brushwood
the only one in town who will do it, so if he told one newspaper that doctors once had a
goes, then I’m finished.”145 more cordial, cooperative relationship with
The DEA has also set up a hotline to report investigators.
doctors whom patients suspect of overprescrib- “Five years ago, if law enforcement saw a
ing, an odd move that further complicates the problem beginning to develop—say a doctor or
doctor-patient relationship.146 Common sense pharmacist dispensing in ways they thought
suggests that people posing as pain patients to were problematic—they would very early on go
illegally divert narcotics or pain patients getting to the doctor or pharmacist and say, ‘We think
excessive pain medication prescribed to them there’s a problem here.’ By the same token,
are least likely to report their doctors to the physicians or pharmacists felt comfortable call-
DEA. Conversely, it isn’t difficult to see how a ing law enforcement and saying, ‘Something
legitimate pain patient dissatisfied with how strange is going on. Come help us out.’ It was a
much medication he has been prescribed might culture of the early consult. The early consult is
be tempted to report his doctor out of spite. gone,” Brushwood said.148
Investigators have also sent undercover Brushwood also noted that many times,
agents, typically from sheriffs’ departments, to investigators will wait for more problematic
pose as pain patients with fake insurance cards. situations to develop in an effort to have more
Agents schedule appointments over the phone evidence with which to go after a doctor. Law
and carefully document everything that hap- enforcement officials “watch as a small prob-
pens during office visits. They make audio and, lem becomes a much larger problem. They
when possible, video recordings of everything wait, and when there is a large problem that
that transpires. Undercover agents tend to be could have been caught before it got large,
female—investigators believe women are less they bring the SWAT team in with bulletproof
threatening, less suspicious, and more likely to vests and M16s, and they mercilessly enforce Professor David
elicit sympathy from doctors. Agents make the law. They’ll come in with charges on mul- Brushwood says
numerous visits to doctors’ offices to befriend tiple counts. Murder, manslaughter, 350
staff members and win their trust. They then counts of drug diversion. Many of which arose that doctors
attempt to accumulate incriminating evidence after they first discovered it, when it was a once had a more
against the doctors. They are instructed to small problem,” Brushwood said.149
engage in informal, personal conversation with Because doctors are now being prosecuted
a “target” and his employees. Once an under- for not adequately discerning the motives cooperative
cover agent wins the trust of a doctor and his and intentions of their patients, pain relationship with
staff, she is instructed to begin looking for patients know that doctors will be looking
more red flags. These additional red flags have them over for signs of abuse, so many strate- investigators.

There seems to gically underreport or overreport their pain, or desire to profit from narcotics diversion to
be no evidentiary depending on how much medication they secure a conviction.156 In fact, it’s not even
have, how much they think they need, and necessary for the government to have expert
standard at all how suspicious they believe a doctor to be of medical testimony that a doctor’s actions
that doctors can their motives. Doctors have no choice but to were illegitimate or outside the usual course
give extra scrutiny to everything a patient of professional practice. The DEA believes it
rely on to thwart says, not just out of a desire to keep a patient can bring charges against doctors even if they
a conviction. from hurting himself or diverting drugs to never actually distributed drugs or their pre-
the black market, but because the patient scriptions were never actually filled. In fact,
may be an undercover cop. Even longtime there seems to be no evidentiary standard at
patients can be duped by police into turning all that doctors can rely on to thwart a con-
in their doctors under threat of arrest. viction.157
A doctor’s billing practices can also trigger Perhaps no case illustrates the injustice of
a red flag. Investigators have contacted pri- aggressive law enforcement tactics better
vate insurance companies’ fraud units as well than that of Dr. Frank Fisher.158 Fisher was a
as those within Medicare and Medicaid. They Harvard-trained physician whose California
comb records to find more potential red practice served about 3,000 patients, most of
flags for a suspected doctor. Investigators them rural and poor. About 5–10 percent of
have also obtained the prescription purchase Fisher’s cases were pain patients. In 1999, the
reports gathered by the DEA from pharma- police arrested Fisher and charged him with
ceutical companies to track a suspected multiple counts of fraud and drug diversion.
physician’s prescribing history.150 More notably, Fisher was originally charged
The case of Dr. William Hurwitz is again an with several counts of murder. State prosecu-
excellent example. He was prosecuted in 2004 tors attempted to make the case that Fisher’s
as part of a two-year DEA operation called overprescribing of narcotics made him crim-
“Cotton Candy” (for OxyContin) involving inally culpable for the deaths of a pain
between 60 and 80 doctors, pharmacists, and patient who died in an unrelated automobile
patients. Hurwitz was eventually charged with accident, a man who received narcotics after
“conspiring to traffic drugs, drug trafficking they had been stolen from the home of one of
resulting in death and serious injury, engaging his patients, and a patient who died after her
in a criminal enterprise, and health care prescription ran out and Dr. Fisher had
fraud.”151 He was arrested at his home by 20 already been arrested and imprisoned. Fisher
armed agents in the presence of his two young was further besmirched in the press.
daughters. Investigators seized his assets, Prosecutors described him as a “mass mur-
including his retirement account, jailed him, derer” and common drug pusher who addict-
and imposed a $2 million bond.152 Hurwitz was ed thousands of Californians to prescription
eventually convicted, essentially of being painkillers.
unknowingly duped by pain patients who later Upon his arrest, all of Dr. Fisher’s assets
sold his prescriptions.153 The jury’s foreman were seized, and he was held on $15 million
told the Washington Post that Hurwitz was “slop- bond. It took just a 21-day preliminary hear-
py,” “a bit cavalier,” and that, “no, he wasn’t run- ing for a judge to dismiss the murder charges
ning a criminal enterprise.” Yet the jury convict- and lower the bail, releasing Dr. Fisher from
ed Hurwitz of “conspiracy to distribute con- prison. It took another four years to dismiss
trolled substances and trafficking resulting in the remaining felony charges, including fraud
death and serious injury.”154 In April 2005 and manslaughter. Finally, in May of 2004, a
Hurwitz was sentenced to 25 years in prison jury acquitted Fisher of the remaining misde-
and fined $1 million.155 meanor charges. One juror described the pur-
The DEA now insists that prosecutors do suit of him as a “witch hunt.” Fisher spent five
not have to prove a doctor’s malicious intent months in jail, lost all of his assets and—at the

age of 50—was forced to move in with his sent a clear message to the medical community
elderly parents. that they need to be sure the controlled sub-
stances they prescribe are medically necessary. If
doctors have a doubt about whether they could
Conclusion get in trouble, this case should answer that”—a
statement that implores doctors to err on the
The government is waging an aggressive, side of undertreatment.160
intemperate, unjustified war on pain doctors. It isn’t hard to see how all of this would
This war bears a remarkable resemblance to make it more difficult for pain patients to find
the campaign against doctors under the treatment. “You worry every day that the med-
Harrison Act of 1914, which made it a crimi- icine won’t be available for much longer,” one
nal felony for physicians to prescribe nar- patient told the Village Voice, “or your doctor
cotics to addicts. In the early 20th century, won’t be there tomorrow because he’s been
the prosecutions of doctors were highly pub- arrested by the DEA.”161 One doctor flatly told
licized by the media and turned public opin- the Wall Street Journal, “I will not treat pain
ion against physicians, painting them not as patients ever again.”162 Still another told Time
healers of the sick but as suppliers of nar- magazine, “I tend to underprescribe instead of
cotics to degenerate addicts and threats to using stronger drugs that could really help my
The DEA’s
the health and security of the nation. patients. I can’t afford to lose my ability to renewed war on
Since 2001 the federal government has sim- support my family.” The Voice also reports that pain doctors has
ilarly accelerated its pursuit of physicians it says many medical schools now “advise students
are contributing to the alleged rising tide of pre- not to choose pain management as a career frightened many
scription drug addiction. By demonizing physi- because the field is too fraught with potential physicians
cians as drug dealers and exaggerating the legal dangers.”163
health risks of pain management, the federal The most obvious (though least likely)
out of pain
government has made physicians scapegoats course of action to address these problems management
for the failed drug war. In that they are general- would be for Congress to end the costly, altogether,
ly legitimate, well-meaning professionals who regrettable War on Drugs. Barring that, the
keep accurate records, pain physicians also pre- best way for law enforcement officials to bat- exacerbating an
sent a better target than underground, black- tle the problem of diversion would be to already serious
market drug dealers for a DEA that has been combat the theft of the drugs from ware- health crisis—the
subject to increasing criticism from Congress houses, manufacturing facilities, and en
and the Department of Justice for its inability route to pharmacies. More importantly, the widespread
to measurably reduce the domestic drug sup- DEA, DOJ, Congress, and state and local undertreatment
ply. Even worse, the DEA’s renewed war on pain authorities should end the senseless persecu-
doctors has frightened many physicians out of tion of doctors and allow them to pursue
of intractable
pain management altogether, exacerbating an whatever treatment options they feel are in pain.
already serious health crisis—the widespread the best interests of their patients, free from
undertreatment of intractable pain. Despite the the watchful eye of law enforcement.
DEA’s insistence that it’s not pursuing “good”
doctors, it isn’t hard to see how rhetoric from
law enforcement officials and prosecutors Notes
would make doctors think otherwise. The author would like to thank the Cato
Hurwitz’s prosecutor, for example, promised to Institute’s Radley Balko for his assistance in edit-
root out bad doctors “like the Taliban.”159 ing and researching this paper.
Another assistant U.S. attorney said, upon the
1. Carl T. Hall, “Living in Pain Addiction,” San
sentencing of one doctor to eight years in Francisco Chronicle, April 5, 1999, p. A1.
prison for having worked for 57 days at a pain
clinic: “I believe and I hope that this case has 2. American Pain Foundation, “Voices of People

with Pain,” http://www.painfoundation.org/page 2003, p. 1.
12. Stephen P. Long, “Pain-Politics and Public
3. American Pain Foundation, “Talking Points on Perception: Virginia’s Experience,” Ramifications
Pain,” AMNews, September 23–30, 2002, p.1, http: 14, no. 2, p. 4.
003_Points.htm. 13. Hall, “Living in Pain Addiction.”

4. Walter F. Stewart et al., “Lost Productive Time 14. Karsten F. Konerding, “Why Pain?” Ramifications
and Cost Due to Common Pain Conditions in the 14, no. 2, p.1.
US Workforce,” Journal of the American Medical
Association 290 (2003): 2443–54. 15. Stephen D. Rosenthal, “The Legal Issues: How
the Courts See Pain Management,” Ramifications
5. American Pain Foundation, “Talking Points on 14, no. 2, p. 4. See also Associated Press, “Doctor
Pain,” September 2004, http://www.painfoun Disciplined for Lack of Aid,” September 3, 1999,
dation.org/print.asp?file=PCPA2003_Points.htm. and Bergman v. Eden Medical Center, No. H205732-
See also Wisconsin Medical Society, “Guidelines 1 (Alameda County Ct., June 13, 2000).
for the Assessment and Management of Chronic
Pain,” Wisconsin Medical Journal 103, no. 3, p. 16. 16. “OxyContin Special,” Drug Enforcement Agency 1
(2001): 3, 9. See also Asa Hutchinson, administrator,
6. Joanne Wolfe, Holcome E. Grier, Neil Klar, Sarah Drug Enforcement Administration, Testimony
B. Levein et al., “Symptoms and Suffering at the before the House Committee on Appropriations,
End of Life in Children with Cancer,” New England Subcommittee for the Depart-ments of Commerce,
Journal of Medicine 342 (February 2000): 326–33, Justice, State, the Judiciary and Related Agencies,
http://content.nejm.org/cgi/content/short/342/5 March 20, 2002; Domestic Strategic Intelligence
/326. Unit (NDAS), Office of Domestic Intelligence, in
coordination with Office of Diversion Control of
7. Hall, “Living in Pain Addiction.” the Drug Enforcement Administration, March
2002, p. 4.
8. American Medical Association, “Patients Face
Numerous Barriers to Receiving Appropriate Pain 17. See, for example, Eric Fleischer, “Doctors:
Treatment,” news release, July 1997. Patient Care Losing to War on Drugs,” Decatur
Daily, October 26, 2003 (“Almost any doctor in the
9. Amy J. Dilcher, “Damned If They Do, Damned If state could prescribe the one class of chemicals that
They Don’t: The Need for a Comprehensive Public could ease Paul’s pain, but many are afraid to do so
Policy to Address the Inadequate Management of . . . The result is an increasing number of medical
Pain,” Annals of Health Law 13 (Winter 2004): 81–144. practices displaying signs that say ‘No OxyContin
prescribed here’); and Tanya Alberts and Damon
10. Personal communication with Dr. David Adams, “OxyContin Crackdown Raises Physician,
Haddox, November 11, 2004. See also Dow Jones Patient Concerns,” Amednews.com, American
Newswires, “FDA Panel: OxyContin’s Approval Medical Association, June 25, 2001.
Shouldn’t Be Limited,” September 9, 2003. Four
professional boards of medicine offer certification 18. David E. Weissman et al., “Wisconsin Physicians’
in pain management. As of November 2004, there Knowledge and Attitudes about Opioid Analgesic
were 5,869 physicians certified in pain medicine, Regulations,” Wisconsin Medical Journal 90 (1991): 671.
not all of whom prescribe opiates for the treatment
of chronic pain. The boards and the number of 19. Michael Potter et al., “Opioids for Chronic
doctors certified are as follows: The American Nonmalignant Pain: Attitudes and Practices of
Board of Anesthesiology (ABA)—3,127; American Primary Care Physicians in the UCSF/Stanford
Board of Pain Medicine (ABPM)—1,768; American Collaborative Research Network,” Journal of
Board of Physical Medicine and Rehabilitation Family Practice (2001): 148.
(ABPMR)—875; American Board of Psychiatry and
Neurology (ABPN)—99. Data compiled from per- 20. David Brushwood, “Maximizing the Value of
sonal communications with Kris Haskins (ABPM) Electronic Monitoring Programs,” Journal of Law,
on November 11, 2004; Steve Glick (ABPN) on Medicine and Ethics 31 (2003): 41 and note 13.
November 17, 2004; Joseph McClintock (ABA) on
November 22, 2004; and Donna Morris, (ABPMR) 21. Marc Kauffman, “Worried Pain Doctors
on November 17, 2004. Decry Prosecutions,” Washington Post, December
29, 2003.
11. Fred Schulte, “Deaths Mount as Doctors,
Pharmacists and Patients Abuse the Medicaid 22. David F. Musto, The American Disease: Origins of
System,” Orlando Sun-Sentinel, November 30, Narcotic Control (New York: Oxford University

Press, 1999), pp. 1–23. in 1973, it acquired the BNDD’s authority.

23. H. H. Kane, The Hypodermic Injection of Morphia, 36. United States v. Moore, 423 U.S. 122, 124 (1975).
Its History, Advantages, and Dangers, as discussed by
Edward M. Brecher and the editors of Consumer 37. The Controlled Substances Act created five
Reports Magazine, 1972, http://216.2 categories of drugs based on their approved med-
39.41/search?q=cache:HEPOU8XULTAJ:www.dru ical use and the potential to addict patients.
gtext.org/library/reports. Schedule I drugs, such as heroin and marijuana,
have no approved medical use and were said to
24. Kurt Hohenstein, “Just What the Doctor have a high potential for addiction. They are
Ordered: The Harrison Anti-Narcotic Act, the authorized for medical research only. Schedule II
Supreme Court, and the Federal Regulation of drugs are narcotics and nonnarcotics such as
Medical Practice, 1915–1919,” Journal of Supreme cocaine, methadone, oxycodone, and OxyContin.
Court History; David F. Musto, “Physicians’ Attitudes They also include nonnarcotic drugs such as
toward Narcotics,” Advances in Pain Research and amphetamines and barbiturates that are
Therapy, vol. 11, edited by C. S. Hill Jr. and W. S. Fields approved for medical use but have the highest
(New York: Raven Press, 1989), pp. 51–59. addictive potential. Schedules III, IV, and V
include narcotics combined with nonnarcotic
25. The Harrison Narcotics Act (1914), PL. 223, drugs, such as codeine and aspirin, and caffeine
63rd Congress, December 17, 1914. and mild depressants, and tranquilizers that have
a low risk of addiction.
26. Harry G. Levine, “The Secret of Worldwide Drug
Prohibition,” The Independent Review 7, no. 2 (Fall 38. “DEA Mission Statement,” Drug Enforcement
2002): 3. See also Eric Sterling, “Drug Policy Failure Administration, www.dea.gov/agency/mission.
at Home,” http://www.lightparty.com/foreignPolicy htm.
39. “Drug Control, DEA’s Strategies and Operations
27. Hohenstein, p. 253. See also Musto, 1999, pp. in the 1990s,” GAO/GGD-99-108, July 1999, pp. 7,
181–82. 61, 72–73, 78 (Washington: General Accounting
Office, July 1999).
28. Musto, 1999, p. 121.
40. U.S. Department of Justice, “Status of
29. Rufus B. King, The Drug Hang-Up: America’s Fifty- Achieving Key Outcomes and Addressing Major
Year Folly, 2nd ed. (Springfield, Illinois: Charles C. Management Challenges,” June 2001.
Thomas, 1972); and “The Narcotics Bureau and
the Harrison Act: Jailing the Healers and the Sick,” 41. “Review of the Drug Enforcement Administra-
Yale Law Journal 195, pp. 784–87. tion’s (DEA) Control of the Diversion of
Controlled Pharmaceuticals,” The Drug Enforce-
30. Hohenstein:, p. 245. ment Administration, September 2002, http://
31. Edward Jay Epstein, Agency of Fear: Opiates and Memo.htm.
Political Power in America (New York: Verso, 1977),
p. 104. 42. U.S. Department of Justice, Drug
Enforcement Administration, “Action Plan to
32. Musto, 1999, note 6, p. 368; and Treasury Prevent the Diversion and Abuse of OxyContin,”
Department, “Hearings before the House Appropri- 2001; U.S. Department of Justice, Drug
ation Committee,” Appropriation Bill 1930, Enforcement Administration, “DEA-Industry
November 23, 1928, p. 473. Communicator: Oxy-Contin Special,” vol. 1.
33. King, p. 786. 43. Ibid.
34. Musto, 1999, pp. 59, 67, and 211. 44. Ibid.
35. Musto, 1999, p. 255; The Controlled 45. Josh White and Marc Kaufman, “U.S. Compares
Substances Act is Title II of the Drug Abuse Va. Pain Doctor to ‘Crack Dealer,’” Washington Post,
Prevention and Control Act of 1970. The September 30, 2003, p. B-3.
Controlled Substances Act initiated the War on
Drugs, and started a national campaign against 46. Statement of Asa Hutchinson, administrator,
illicit drugs and associated crime. The CSA gave Drug Enforcement Administration before the
the Bureau of Narcotics and Dangerous Drugs United States Senate Caucus on International
the authority to regulate legal prescription drugs. Narcotics Control, Executive Summary, April 11,
When the Drug Enforcement Agency was created 2002, www.dea.gov/pubs/cngrtest/ct041102p.html.

47. Ibid, pp. 1, 3–4. Times, February 9, 2001, p. A21.

48. U.S. Department of Justice, Drug Enforcement 64. Department of Health and Human Services,
Administration, Diversion Control Program, “Oxycodine, Hydrocodone, and Polydrug Abuse,
“Summary of Medical Examiner Reports on 2002,” The DAWN Report, July 2004.
Oxycodone-Related Deaths,” May 16, 2002, www.
deadiversion.usdoj.gov/drugs_concern/oxy 65. See J. Porter and H. Jick, “Addiction Rare in
codone/oxycotin7.htm. Patients Treated with Narcotics,” New England
Journal of Medicine 302, no. 2 (1980): p. 123; J. L.
49. Ibid., p. 4. Medina, S. Diamond, “Drug Dependency in
Patients with Chronic Headaches,” Headache 17, no.
50. Ibid., pp. 1–2. 1 (1977): 12–14. This survey of patients treated at a
large headache center during 11 months could only
51. Ibid., p. 2. identify three problem cases (two codeine abusers
and one propoxyphene abuser) among the 2,369
52. Ibid. patients who had access to opioid analgesics. D. E.
Moulin et al., “Randomized Trial of Oral Morphine
53. Cone et al., “Oxycodone Involvement in Drug for Chronic Noncancer Pain,” Lancet 347 (1996):
Abuse Deaths: A DAWN-Based Classification 143–47. This study used a cross-over design to com-
Scheme Applied to an Oxycodone Postmortem pare the opioid against a placebo (benztropine) to
Database Containing over 1000 Cases,” Journal of ensure blinding of the therapy. The study evaluated
Analytical Toxicology 27, no. 2 (March 2003): 57–67. a broad range of outcomes related to subjective
This study was funded by Purdue Pharma, manu- effects and function. The results demonstrated a sig-
facturer of OxyContin but was subjected to the nificant reduction in pain during morphine therapy,
normal peer review process. without change in physical or psychological func-
tioning, and without evidence of psychological
54. Ibid. dependence or aberrant drug-related behavior.
55. Drug Enforcement Administration, May 16, 66. “Opioids Safely Curb Chronic Back Pain:
2002, p.1. Study,” Reuters, February 23, 2005.
56. Ibid, p. 4. 67. Christine Gorman, “The Case for Morphine,”
Time, April 28, 1997.
57. G. Singh, “Recent Considerations in Nonsteroidal
Anti-inflammatory Drug Gastropathy,” American 68. Ibid.
Journal of Medicine 105, no. 1B (1998): 31S–38S.
69. Shannon Brownlee, Joannie M. Schrof, Beth
58. Mike Gray, Drug Crazy (New York: Routledge, Brophy, and Mary Brophy Marcus, “The Quality
1988). See also Epstein. of Mercy,” U.S. News and World Report, March 17,
1997, Ibid., http://www.usnews.com/usnews/cul
59. Asa Hutchinson, Statement Before the House ture/articles/970317/archive_006482.htm.
Committee on Appropriations, Subcommittee on
Commerce, Justice, State, and Judiciary, December 70. Ibid., http://www.usnews.com/usnews/cul
11, 2001, p.1; Hutchinson, April 11, 2002, p. 1. ture/articles/970317/archive_006482.htm.
Congressional testimony before the House
Committee on Appropriations Subcommittee for 71. Ibid., http://www.usnews.com/usnews/cul
the Departments of Commerce, Justice, State, the ture/articles/970317/archive_006482_4.htm.
Judiciary and Related Agencies, March 20, 2002.
72. Sharon M. Weinstein et al., “Physicians’
60. Debra Rosenberg, “Oxy’s Offspring,” Attitudes toward Pain and the Use of Opioid
Newsweek, April 22, 2002, p. 37. Analgesics: Results of a Survey from the Texas
Cancer Pain Initiative,” Southern Medical Journal 93,
61. Timothy Roche, “The Potent Perils of a Miracle no. 5 (2000): 479–87.
Drug: OxyContin Is a Leading Treatment for Chronic
Pain, but Officials Fear It May Succeed Crack Cocaine 73. Potter et al., pp. 147–48.
on the Street,” Time, January 8, 2001, p. 47.
74. Doris Bloodsworth, “OxyContin under Fire,”
62. Gary Cohen, “The Poor Man’s Heroin,” U.S. Orlando Sentinel (five-part series) October 19–23,
News and World Report, February 12, 2001, p. 27. 2003; Doris Bloodsworth, “Pain Pill Leaves Death
Trail: A Nine-Month Investigation Raises Many
63. Francis X. Clines with Barry Meier, “Cancer Questions about Purdue Pharma’s Powerful Drug
Painkillers Pose New Abuse Threat,” New York OxyContin,” Orlando Sentinel, October 19, 2003.

75. Dan Tracy and Jim Leusner, “Orlando cannabinoids, cocaine, gamma hydroxybutyrate
Sentinel Finishes Report about OxyContin (GHB), heroin, hydrocodone, oxycodone, keta-
Articles,” Sun Herald, February 21, 2004, p. 2. mine, methadone, methylated amphetyamines,
nitrous oxide, phencyclidine (PCP), and Rohypnol
76. Quoted in Doris Bloodsworth, “FDA Urged to (flunitrazepam), “2002 Report of Drugs,” p. i.
Get Tougher on OxyContin Maker,” Orlando
Sentinel, November 19, 2003, p. 3. 91. “2001 Report of Drugs,” p. 12; and “2002
Report of Drugs,” p. 7.
77. Ibid.
92. “Orlando Sentinel Reporter Resigns, Two
78. Ibid. Editors Reassigned in OxyContin Story Fallout,”
Orlando Business Journal, February 27, 2004, p. 1.;
79. “Congress Tackles OxyContin: Legislators’ 1st Trevor Butterworth, “The Great OxyContin Scare,”
Hearing Will Be in Orlando in February,” Orlando AlterNet: DrugReporter, August 30, 2004, p. 1.
Sentinel, December 5, 2003, p.2.
93. “Sentinel Overstated Deaths Caused Solely by
80. Doris Bloodsworth, “Crowd Protests Drug Oxycodone,” Orlando Sentinel, August 1, 2004.
Maker: Dozens Who Had Lost Relatives and
Friends to OxyContin Overdoses Braved the Rain 94. Aaron Derfel, “Painkiller Linked to Overdose
Outside an Orlando Resort to Rally Against Suicides: Drug Nicknamed ‘Hillbilly Heroin.’
Manufacturer Purdue Pharma,” Orlando Sentinel, Coroners Draft National Alert after Jump in
November 20, 2003, p. 3. Deaths Involving Popular Oxycontin,” Montreal
Gazette, August 30, 2004, p. A7.
81. Ibid.
95. Veronique Mandal and Rob Antle, “‘Hillbilly
82. James R. McDonough, “Testimony of James R. Heroin’ Target of Alert: Oxycontin Blamed for
McDonough before the Government Reform 250 Deaths in Ontario,” Ottawa Citizen, August 4,
Committee, House Subcommittee on Criminal 2004, p. A4.
Justice, Drug Policy and Human Resources,”
February 9, 2004. 96. John Laidler, “Grants to Help Combat Drug
Use,” Boston Globe, August 8, 2004, p. 1.
83. On June 3, 2005, a mistrial was declared when
a jury was unable to agree on a verdict in Dr. 97. Ibid.
Luyao’s case. Prosecutors say they will retry Dr.
Luyao again in 2006. See Derek Simmonsen, 98. Statement of Thomas W. Raffanello, Special
“Mistrial in Doctor’s Manslaughter Case,” Sun- Agent in Charge, Miami Division, U.S. Drug
Sentinel, June 4, 2005, p. 9B. Enforcement Administration, before the U.S. House
of Representatives Committee on Government
84. General Accounting Office, “OxyContin Reform, Subcommittee on Criminal Justice, Drug
Abuse and Diversion and Efforts to Address the Policy and Human Resources, February 9, 2004, p. 4.
Problem,” December 2003 (GAO-04-110, p. 10).
99. Hutchinson, April 11, 2002, Executive Summary.
85. Mark Hollis, “Privacy Fears Kill Florida
Prescription Database,” Orlando Sentinel, May 1, 100. Appendix, Budget of the United States
2004, p. A14. Government, Fiscal Year 1999, pp. 606–609.
86. Howard Kurtz, “After OxyContin Series: A
Delayed Reaction,” Washington Post, February 16, 101. Hutchinson, April 11, 2002, p. 7.
2004, p. C01.
102. Rogelio E. Guevara, chief of operations, DEA,
87. Tracy and Leusner, p. 1. Statement before the House Judiciary Committee,
Subcommittee on Crime, Terrorism, and Homeland
88. Florida Department of Law Enforcement, “2001 Security, May 6, 2003, p. 5.
Report of Drugs Identified in Deceased Persons by
Florida Medical Examiners,” April 2001, p. 11, and 103. Drug Enforcement Agency, “Drug Intelligence
“2002 Report of Drugs Identified in Deceased Persons Brief: OxyContin, Pharmaceutical Diversion,”
by Florida Medical Examiners,” June 2002, p. 6. March 2002, p. 5, www.usdoj.gov/dea/pubs/intel/
89. Ibid.
104. Joe Burchell, Michael Marizco, and Enric
90. The state medical examiners collected data on Volante, “Hospital’s Drug Theft Estimates Spiral-
the following drugs: ethyl alcohol, benzodiazepine, ing,” Arizona Daily Star, June 24, 2004.

105. Associated Press, “Pill Thefts Alter the Look 116. Luken.
of Rural Drugstores,” New York Times, July 6, 2004.
117. Kevin Eigelbach, “Federal Suit of Doctor
106. J. Scott Orr, “Of Six Bogus Requests for Settled,” Kentucky Post, December 31, 2004.
Drugs Over the Internet, Only One was Denied,”
Newark Star-Ledger, November 30, 2003. 118. DEA Diversion Control Program, “Rules-
2003,” Federal Register 68, no. 32 (February 18,
107. Laurence Hammock, “Doctor Found Guilty 2003): 5.
in OxyContin Case,” Roanoke Times, July 13, 2001.
Emphasis added. 119. DEA Update, National Association of State
Controlled Substance Authorities, Myrtle Beach,
108. Alberto R. Gonzales, U.S. attorney general, South Carolina, October 2002, pp. 17–18.
Statement before the U.S. House of Representatives,
Committee on Appropriations, Subcommittee on 120. Drug Enforcement Agency and Last Acts
Science, the Departments of State, Justice, Com- Partnership, Pain and Policy Studies Group,
merce, and Related Agencies, March 1, 2005, http:// University of Wisconsin, “Prescription Pain Medi-
www.justice.gov/ag/testimony/2005/022805fy06ag cations, 2004,” pp. 42–43.
121. Laurence Hammack, “Doctors or Dealers?”
109. 21 USC Sec. 853:1–2. Roanoke Times, June 11, 2001.

110. Drug Enforcement Administration, “Asset 122. 21 USC Section 802 Definitions (1).
Forfeiture Benefits Local Police Departments,”
news release, March 25, 2003, www.usdoj.gov/dea/ 123. Jacob Sullum, “Pill Sham,” Reason Online, April
pubs/states/newsrel/kentucky032503p.html; 23, 2004, http://www.reason.com/sullum/0423
Hutchinson, April 11, 2002, p. 6. 04.shtml.

111. U.S. Department of Justice, Office of Inspector 124. Michael Arnold Glueck and Robert J. Cihak,
General, Audit Division, “Assets Forfeiture Fund “Jury Can Deny Liars for Hire,” NewsMax.com,
and Seized Asset Deposit Fund Annual Financial January 5, 2005.
Statement Fiscal Year 2002, Report 03-20,” June
2003, p. 1. 125. Luken.

112. The National Association of Drug Diversion 126. Greg Wood, Health Care Fraud Investigator,
Investigators was founded in 1987 for the pur- U.S. Attorney’s Office, Western District of Virginia,
pose of investigating and prosecuting pharma- Healthcare Fraud Prevention and Funds Recovery
ceutical drug diversion. There are about 2,400 Summit, Washington, June 21–23, 2004, pp. 8–9.
members of NADDI representing local and state
and police departments, DEA agents, insurance 127. Marc Kaufman, “New DEA Statement Has
investigators, drug companies and pharmacies’ Pain Doctors More Fearful,” Washington Post,
loss prevention departments, and state medical November 30, 2004.
board and pharmacy regulatory agents who inves-
tigate and prosecute the diversion of prescription 128. Drug Enforcement Agency, Last Acts
drugs. NADDI has 14 state chapters in Alabama, Partnership, Pain and Policy Studies Group,
California, the Carolinas, Florida, Indiana, University of Wisconsin, August 2004; Drug
Kentucky, Maryland, New England, New York, Enforcement Agency, “Dispensing of Controlled
Ohio, Pennsylvania, Tennessee, Texas, and Vir- Substances for the Treatment of Pain: Interim
ginia. NADDI hosts training seminars for the Policy Statement,” www.doctordeluca.com/Li
purpose of coordinating methods of investigat- brary/WOD/DEA-FAQ-InterimStatement11120
ing and prosecuting drug diverters. 4.htm.

113. Dennis M. Luken, lecture on “Pharmaceutical 129. Drug Enforcement Administration, “DEA to
Drug Diversion Schemes,” National Association of join pain advocates in issuing statement on pre-
Drug Diversion Investigators Training Conference, scription pain medications,” news release,
July 24, 2003. October 23, 2001.

114. Greg Aspinwall, “Diversion of Non-Controlled 130. Drug Enforcement Administration, “Prescrip-
Drugs,” National Association of Drug Diversion tion Pain Medications: Frequently Asked Questions
Investigators Training Conference, July 24, 2003. and Answers for Health Care Professionals, and Law
Enforcement Personnel,” http://www.aapsonline.
115. Ibid. org/painman/deafaq.pdf (since redacted).

131. Ibid., emphasis added. Unveils International Toll-Free Hotline to Report
Illegal Prescription Drug Sales and Rogue
132. Marc Kaufman, “DEA Withdraws Its Pharmacies Operating on the Internet,” news
Support of Guidelines on Painkillers,” Washington release, December 15, 2004.
Post, October 21, 2004, p. A3.
147. Luken.
133. Drug Enforcement Agency, “Dispensing of
Controlled Substances for the Treatment of 148. Fleischauer.
Pain,” p. 3.
149. Ibid.
134. Ibid.
150. Luken. See also Faria.
135. Mark Kaufman, “Specialists Decry DEA
Reversal on Pain Drugs,” Washington Post, December 151. Josh White, “McLean Doctor Facing Drug
21, 2004, p. A8. Trafficking Charges,” Washington Post, September
25, 2003, p. B3.
136. National Association of Attorneys General,
Letter to DEA administrator Karen P. Tandy, 152. Joel Hochman, “Why Dr. Hurwitz?” Drug
January 19, 2005. Sense Weekly, October 31, 2003.

137. Charlie Cichon, “Identifying and Targeting the 153. Jerry Markon, “Pain Doctor Convicted of Drug
Illegal Prescriber,” National Association of Drug Charges,” Washington Post, December 16, 2004, p. A1.
Diversion Investigators Training Conference,
November 19–22, 2003. 154. Jerry Markon, “Pain Doctor ‘Cavalier,’ Jury
Foreman Says,” Washington Post, December 21,
138. Luken. 2004, p. B3.

139. Ibid. See also Miguel A. Faria Jr., “The Nature of 155. U.S. Drug Enforcement Administration,
the Beast,” and “The Police State of Medicine”; “Virginia Pain Doctor Sentenced to 25 Years,” news
Willian E. Hurwitz, “Reflections on a Case of release, April 14, 2005, http://www.dea.gov/pubs/
Regulatory Abuse”; and Otto Scott, “Pain,” all from a pressrel/pr041405.html.
special issue of the Medical Sentinel, July/August 1998.
156. Drug Enforcement Agency, “Dispensing of
140. Brownlee et al. Controlled Substances for the Treatment of
141. E. Au et al., “Regular Use of a Verbal Pain Scale
Improves the Understanding of Oncology In- 157. Ibid.
patient Pain Intensity”; Journal of Clinical Oncology
12 (December 1994): 2751–55. 158. Carl T. Hall, “Jury Acquits Doctor in Pain-
Control Test Case,” San Francisco Chronicle, May
142. Eric Fleischauer, “Physicians Casualties in the 20, 2004, p. A1.
War on Drugs,” Decatur Daily News, October 27, 2003.
159. Josh White, “Pill Probe Focuses on N. Va.
143. Michael Arnold Glueck and Robert J. Cihak, Doctors,” Washington Post, August 4, 2002, p. A1.
“The Painful DEA,” NewsMax.com, May 6, 2003.
160. Association for American Physicians and
144. Jane Spencer, “Crackdown on Drugs Hits Surgeons, “Actions against Pain Physicians,” http://
Chronic-Pain Patients,” Wall Street Journal, March www.aapsonline.org/painman/actionsagainst.htm.
16, 2004.
161. Frank Owen, “The DEA’s War on Pain
145. Mark Kaufman, “High-Dosage Opioids Saved Doctors,” Village Voice, November 5–11, 2003.
His Life, Patients Says,” Washington Post, December
29, 2003. 162. Spencer.

146. Drug Enforcement Administration, “DEA 163. Ibid.


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