Criminal Justice

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Late-arriving, futile “justice” and reminders of a life that has been all but annihilated

I read the news yesterday, oh boy.  And yes, it was about a lucky man‒luckier than I am, anyway, at least in some ways.

There was a doctor in the heartland of America somewhere, I don’t recall where, who had been convicted of, apparently, inappropriately prescribing very large amounts of pain meds, the report quoting the number 500,000* (It seems unlikely that there were 500,000 prescriptions**, so it probably was that number of pills).

Anyway, his conviction was overturned on appeal, because apparently, in 2022, the SCOTUS handed down a ruling that the prosecution had to prove in such cases that there was “intentional or knowing” inappropriate prescription for it to rise to the level of a crime, and the jury hadn’t been appropriately instructed regarding that fact.

I looked up the case, and I’ve even downloaded the PDF of the case.  Although I haven’t read through it yet, the summaries make it clear that, yes indeed, this is a new and specific requirement.

Silly me, I had always thought that mens rea was a crucial requirement for nearly any criminal case, certainly one that rises to the level of a felony charge.  I brought that up with my (public) defense attorney, trying to point out that I shouldn’t be convicted of a crime since I literally had never intended to do anything but treat patients who had chronic pain‒which I did because I had chronic pain, and it had already severely harmed my life.  I knew how hard it was for even a physician, who at the time had good health insurance, to be able to get adequate treatment and even to get his prescriptions filled by often-judgmental pharmacists who looked at him as if he were a criminal just because he wanted to try to mitigate his pain with the most effective medicine that was available.

But no, apparently, according to my attorney, the prosecutor didn’t have to prove any such thing specifically; it could just be inferred.  And apparently I’m not exactly the sort of person to elicit sympathy from a jury in south Florida, because my voice tends to be monotone and my face tends to be expressionless and I don’t look like someone who is frankly worthy of sympathy.

All the charges against me were created by the PBSO, who sent in undercover people with (evidently) faked MRIs and fake complaints, who complained of chronic, severe pain and said they were in pain when I examined them***, and whose own secret recordings and records showed that there were often only one or two other patients in the whole office when they were there‒hardly what one would call a “pill mill” I should think.

Anyway, I was offered a plea bargain and I took it, because unless you’ve got a lot of money or you literally have nothing to lose, you will take a plea bargain in the right circumstances, even though you know you’re innocent.  I’ve written a blog post about how the plea bargain system is an extortionate game slanted against especially the underprivileged.

The statutes involved in my charges were designed by that <sarcasm> bastion of intelligentsia and morality, the Florida State Legislature </sarcasm>, to give judges no leeway, and to grind away maximally at anyone charged with “trafficking”.   If a jury decided that they should convict on at least one charge, since the state had created so many charges against me (each prescription being a charge, and twenty something having been conned out of me by various lying police officers over time) and the number seems impressive, I still could have faced a minimum of fifteen years in prison.

In retrospect, I think I would have been little worse off if I had, given the mockery and shambles my life has become.  But at the time, I hoped to see my kids again, perhaps sometime before they were adults.  Three years was better than fifteen (or potentially the rest of my life), and I had no one else to help me with a legal fight, and certainly no reservoir of money, so I took the deal.

The way things are now, though, I might not have been charged, or might have been offered some misdemeanor plea deal.  Or I might have gone to trial and won with relative ease, since the fact that I never knowingly or intentionally mis-prescribed medicine was a fact I knew for certain, at a Cartesian, cogito ergo sum sort of level, since it was a fact about my own mental state.

I may be naïve, and I often do not understand humans.  I am often easily misled and manipulated and used and misused and probably abused, because I am socially and emotionally very clueless and believe in giving other people the benefit of the doubt (to hold them innocent until proven guilty, in other words).  But I have never been greedy or unscrupulously opportunistic, and I took the practice of medicine and my duty and goal to relieve suffering very seriously.  I was never into making a lot of money, though it was good to be able to buy books I wanted and to take care of my kids.  I lived in a one-bedroom apartment and drove a ten-year-old Toyota Sienna.

Before yesterday, it had been a long time since I’d bothered thinking about what my life might have been like if things had not gone the way they did.  There didn’t seem to be any point.  I was a lost cause and that was that.  But this has made me feel acutely once again the cut of all the lost time with my kids and my lost ability to practice medicine, and all the other losses I’ve experienced as part of this debacle of a life.

What’s more, there’s been salt and vinegar rubbed into the wound by the fact that it took a Supreme Court dominated by many justices who’d been appointed by The Donald to require courts to require prosecutors to prove something that was supposed to be a necessary element of almost any serious criminal charge:  actual criminal intent.

That’s all leaving aside the un-ethics and illogic of the government of the “Land of the Free” dictating what people can put into their own bodies when it doesn’t directly harm other people in the first place.  I won’t get into that because it had no bearing on my medical practice‒I was not in the business of dealing in euphoriants, I was trying to relieve actual suffering.

One cannot really apply new jurisprudence to old cases in which a sentence has already been carried out and finished, and when the consequences thereof are already irrevocable.  I cannot regain the time I have lost with my children or the time I have lost when I could have been practicing medicine, or the time I spent at FSP West or in the Palm Beach County Main Detention Center, where even the people who worked there frequently asked why the hell I was there, or still there (I spent 8 months in the place, on the mental health floor, because I couldn’t make bail, but finally my former girlfriend’s mother helped secure it‒at least she got all her own back after I was sentenced, and I appreciate her very much, though I might as well just have stayed in jail, since at least the whole sentence would have ended earlier given “time served” and I was basically homeless when out on bail, having lost everything I owned and relying on the generosity and kindness of friends/former coworkers).

So I am stuck with a ruined life and a twisted mockery of myself.  The fruits of a considerable number of years of time and effort and thought and creativity on my part**** were all taken away by the mindless grinding of a huge stupid machine of “criminal justice” that has little to nothing to do with the latter part of the term.  I don’t claim not to be stupid or foolish or not to have ever made mistakes in the whole situation.  I make many mistakes.  But it is maddening to see how misapplied the law can be and to experience it for oneself, especially when one is now by oneself, partly thanks to that misapplication, and then to learn that now the law is changed (or correctly applied) such that I could have been in a better situation had that change come sooner.

I often consider the possibility of going to the Palm Beach courthouse, dousing myself in various flammable liquids, and turning myself into a “bonfire of the unsanities and inanities”, to bring attention to some of the costs of misapplied “justice” and to bring an end to my own mis-called life.  I even have two gallons of paraffin lamp oil and six liters of charcoal lighter fluid and a big enough backpack to carry them all, in case I decide to do it.

Death by fire is intimidating, though‒I am no Buddhist monk by any means.  And I also dislike causing inconvenience to other people, even those involved in an institution that had no qualms about recklessly “judging” me and ruining my life.  But it is tempting, and I feel right now even more than usual the utter pointlessness of continuing, even while stupidity in the office in which I work grinds away at me further (though, to give him credit, my boss tries hard to keep things as sane as he can).

I feel rotten enough and alien enough even at baseline, and all this doesn’t help.  I have lost almost all that mattered to me, and I live alone in a stupid one-room (plus bathroom) “in-law” suite that is smaller than many hotel rooms.  All my previous friends are far away, and most are doing much better with their lives than I am and don’t really have much in common with me anymore.  In any case, I don’t really talk or otherwise communicate with them, though it would be nice.

There are also plain few people where I am now who have anything in common with me.  Very few people have much in common with me:  a disgraced physician unable to practice, with a love of math and physics and biology and of Shakespeare and horror fiction and science fiction/fantasy (reading and writing it) and of science and rationality-oriented podcasts and books and videos, who wants to learn or relearn more about modern physics at a deep level and whose brain doesn’t seem to run the same operating system as most of the people around him‒a Linux in a world of iOS, or worse.

So, I don’t know what I’m going to do.  Knowing me, I’ll probably just grind along until I’m worn to a nub and then tumble into the trash can, unmarked and largely unlamented.

I know that I won’t be sorry‒not about that.

*This sounds like an awful lot of pills, but it’s deliberately chosen to sound that way in a manipulative, rhetorical tactic as used by reporters and prosecutors alike.  Let’s run the numbers, as I am wont to do, to see how impressive they really are.

Now, if there were one patient, taking one pill per day‒perhaps the person only takes one prescription, say an antidepressant or a cholesterol med or a long-acting antihypertensive‒it would take nearly 1400 years to use that many pills.  Plain few patients live that long (see my recent blog post), and most pills would long since have expired and become inactive before the end of that time.

Still, the average physician is responsible for the care of 2,000 to 3,000 patients (see here and here), meaning that if, on average, their patients each only took one prescribed pill a day, they would go through 500,000 pills in 6 to 9 months.  But many prescriptions call for more than one pill per day, and uninsured patients cannot tend to afford the long-acting pain meds that claim to allow for steadier doses and thus slightly less risk of rebounds and escalations and all the horrors involved in that.

Now, presently, I take three to nine aspirin a day, sometimes more, and I also take two naproxen and some supplemental Tylenol as well, all of which are more directly toxic to the body than opioids, but are nonetheless over the counter (as they should be).  If I averaged ten total pills a day, then it would take me only 137 years or so to take 500,000 total pills.  That’s longer than I’m likely to be taking pills, but I’m only one person (that, as Dave Barry said, is the law).  An average practice of patients who took only six pills a day would go through 500,000 pills in one to one and a half months.  Many ordinary, non-pain-specific patients, especially those middle-aged and older, take that many and even more prescription meds a day.

In any case, an ordinary general practitioner with a light patient load of two thousand patients, each taking only an average of two pills a day, would prescribe 500,000 pills in 3 to 5 months.  So don’t be too impressed by the carefully curated numbers that prosecutors and media choose to elicit your alarm and disgust.

**Even 500,000 prescriptions, in a modest 2000 patient practice, would require only 250 prescriptions total per patient.  That would certainly take quite a bit longer than 500,000 pills would take, but given an average of only one prescription per patient per month (counting refills) it would only take a bit over 20 years, a decently short length of practice.  Many doctors see more than 2000 total patients and many patients get more than one prescription per month.  And, of course, one cannot even apply refills on “controlled substances”, they have to be literally re-written every month, and patients have to come to the doctor’s office to get them, assuming they can even get them filled.  Monthly doctor’s visits can be hard for someone trying to work a regular job while dealing with chronic pain.  Thus, the whole “mill” part of the “pill mill” trope is created by the law itself, leading to greater costs in time and fees for the patients who are trying to survive after job-related and other injuries or conditions that have caused them chronic pain and make it difficult for them to find consistent, gainful employment or to sustain health insurance.

***Pain is a symptom, not a sign, in medical terms.  We have no reliable ways of testing it, beyond patient report.  We try to find physical correlations when we can, often to see if we can find some treatable cause, but even Harrison’s Principles of Internal Medicine (I think it was on page 80 or 81 of the 14th or 15th edition, whichever one I had at the time) has clearly stated that, for instance, back pain does not correlate well even with specific injuries noted on MRIs and the like.  As large a number of people without pain will have nerve root impingements and bulging discs and the like seen on spinal MRIs as do have pain.  NO ONE KNOWS all the wherefores of this situation, but there is no serious doubt that such pain is quite real.

****It did not all happen during medical school or residency‒one does not coast along from K-12 and undergraduate college and only then start to work hard in med school, especially if one grew up in a blue-collar, factory town outside Detroit.

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We Need to Socialize–Fully–the Criminal Justice System!

I’m not a huge fan of socialism in most things.  Not that there aren’t social programs that are good, in principle, to protect all citizens from the unpredictable vicissitudes of fate.  In general, regrettably, governments tend to do many things poorly and inefficiently (although, as someone who grew up in the Detroit area, I know that big corporations can often be just as lacking in that area as governments, and just as immune to internal correction).  However, there is one area of life in which I think it is a complete travesty that there is anything but complete socialization, and that area is the criminal justice system.

I can tolerate the use of privately employed attorneys in civil cases–though just barely, and arguments can be made that money unfairly sways matters even in such venues (Your comments on that notion would be welcome).  However, it is utterly unconscionable that private attorneys are ever allowed in the criminal justice system.

Our court system itself is of course utterly antiquated.  It has more in common with medieval jousting matches to determine guilt or innocence than it has with any honest attempt to find the truth of any particular matter.  In a typical court proceeding, the person who has the best attorney, or team, is the one most likely to win.  And that usually means that the person with the most money wins.  It’s not true universally, of course, but it is a strongly dispositive factor.  Consider the O.J. Simpson trial:  Would O.J. likely have been acquitted had he been represented by a public defender?  I think we can all agree that the answer is “No.”  Well, why should he have had any better chance of winning than any other man charged with murdering his wife and her friend?  Why should a person’s individual wealth have any bearing on the quality of defense they receive in a criminal case?

The argument can, and probably will, be made that make all defendants rely on the public defender’s office would simply mean that even those with money will face the same ridiculous miscarriages of justice, the same hobbled defense, as a non-wealthy person does when charged with a criminal offense.  To this, I say, “Good!”  Maybe if a few of the movers and shakers of society realize just how horrible the situation is for a non-wealthy person who is charged with any crime in America, they will see to it that changes are made.  Maybe they will see to it that defendants in criminal cases get at least as many resources applied to them as the prosecutor’s office has to bring to bear (and do recall that the prosecution has not only the power of their office, but also that the resources of all pertinent police forces are more or less at their disposal…something that certainly cannot be said for any defendant).

The hallmark of our criminal justice system is supposed to be that a person is innocent until proven guilty beyond a reasonable doubt.  Given that presumption, we must be scrupulous to err on the side of the defendant.  The state has tremendous, monolithic power, and can destroy the lives of citizens almost with impunity by means of simply bringing a criminal prosecution, whatever the outcome.  Given this fact, and the supposed basis of our criminal justice system, all biases should be in favor of the accused.  Clearly this is not the case; if it were, the United States would not have five times its share of the world’s prisoners based on population…the largest number of prisoners in absolute numbers and per capita.  This is to say nothing of the outrageous inequality in the application of criminal justice to minorities.  This would be at least partly rectified by having the wealthy receive the same defense as the poor, since minorities, in general, are less likely to be wealthy than their counterparts.

Of course, the privatization of prisons absolutely has to stop as part of this process.  It appears simply impossible for inappropriate bias not to be introduced into a system when a for-profit interest becomes involved in it (See the ACLU’s report from 2012 here).  In general, I see government itself as a necessary evil, but it is necessary, precisely because human nature has not yet reached a state of development where we can be trusted to do many things honestly and justly if our personal interests are engaged.  But when we give our governments certain powers, and those powers are then put at the disposal of private interests, who have their own monetary gain at heart rather than the achievement of actual justice, it is perfectly predictable for disaster to occur.

How comfortable would we all be if police departments were privately run?  What if the degree of one’s protection by law enforcement were overtly and explicitly dependent upon one’s financial power (as opposed to being only implicitly so, as it is now)?  How safe would you feel?  What if you had to pay a fee for services, or pay to become a member of some club in order to have the police investigate, say, your stolen car…or the murder of one of your family members?  I think we can all agree that this is not a system under which we would hope to live, where the power of law enforcement works only for the highest bidder.

So, why should the quality of a person’s defense against charges of crime be dependent upon the financial resources one can bring to bear?  Even if it were true that every person’s financial status were dependent upon the quality of their character and their personal ability, even if all fortunes were honestly and openly made in truly fair trade–a notion that veers away from mere fiction into the realm of wildest fantasy–there would still be no justification for giving the financially successful better defense against charges of criminal activity than a person who was not successful.  There is no data to demonstrate that financial success is inversely correlated with degree of criminality, and in reality, the correlation is often a positive one.

Of course, depriving individuals of the ability to hire their own criminal defense attorneys would further drain the budgets and other resources of our court systems; this would be a good thing.  It would help force us, as a society, to do a better job of prioritizing our application of police and prosecutorial (and thus also defense) resources–to decide how important it was, for example, to arrest people for possession of marijuana or even of more powerful drugs, when they have not taken any action that brings harm to any other person.  Needless to say, in applying such a policy, we must avoid the pitfall of simply increasing the use of plea bargaining to deal with such resource burdens, since that system is, by nature, biased and unjust, a criminal process in its own right (see my blog on the subject here).

The changes I call for are drastic, I know.  I don’t apologize for that, and I will likely continue to call for even more such changes as time goes by.  Our system is drastically malfunctioning, drastically inefficient, and drastically unjust.  It must be changed, overhauled, or completely replaced with something better, if we wish to have the right to continue to call America a free society.

The above post is actually a re-posting of an entry I originally posted in my other blog:  Justice the American Way, which can be found here.  I am reposting it here just be sure that those who want to read it and follow me here are aware of it.  I will only be doing this for a bit, however.  I want to try to keep my political philosphy/criminal justice postings separate from those about writing, publishing, and other generally more positive things.  That’s why I made the new blog.  If you are interested in such topics, by all means, do follow that blog.

I have an earlier post there–“In States Where They Lose the Right to Vote, ex-Felons Should Not Pay Taxes“–which I have not reposted here, but I invite you to read it, nevertheless.

On unrelated matters, Mark Red: Chapter 15 should be released next weekend, or possibly before.  Then, within a few weeks, I’m going to be releasing “Welcome to Paradox City:  Three Dark Tales.”  I’m excited about it.  I hope you’ll be excited, too.

TTFN!