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

Published online by Cambridge University Press:  01 January 2021

Stephen J. Ziegler  and
Nicholas P. Lovrich Jr.
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Extract

The experience of having to suffer debilitating pain is far too common in the United States, and many patients continue to be inadequately treated by their doctors. Although many physicians freely admit that their pain management practices may have been somewhat lacking, many more express concern that the prescribing of heightened levels of opioid analgesics may result in closer regulatory scrutiny, criminal investigation, or even criminal prosecution.

Although several researchers have examined the regulatory environment and the threat of sanction or harm it poses to physicians and patients, few have examined the likelihood of investigation or prosecution stemming from the aggressive use of opioids in physician-directed pain management. Accordingly, in an effort to assess whether the fear of prosecution is realistic and, if so, what factors contribute to its likelihood, we surveyed chief prosecutors in four states about their knowledge, opinions, and attitudes concerning opioids and the prosecution of physicians stemming from the treatment of patients who were either terminally ill or suffering from chronic noncancer pain.

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Article
Information
Journal of Law, Medicine & Ethics , Volume 31 , Issue 1 , Spring 2003 , pp. 75 - 100
Copyright
Copyright © American Society of Law, Medicine and Ethics 2003

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References

Johnson, S.H., “Disciplinary Actions and Pain Relief: Analysis of the Pain Relief Act,” Journal of Law, Medicine & Ethics, 24, no. 4 (1996): 319–27, at 319; Johnson, S.H., “Introduction: Legal and Regulatory Issues in Pain Management,” Journal of Law, Medicine & Ethics, 26, no. 4 (1998): 265–66, at 265; Alpers, A, “Criminal Act or Palliative Care? Prosecutions Involving the Care of the Dying,” Journal of Law, Medicine & Ethics, 26, no. 4 (1998): 308–31, at 308, 310; Hoffmann, D.E., “Pain Management and Palliative Care in the Era of Managed Care: Issues for Health Insurers,” Journal of Law, Medicine & Ethics, 26, no. 4 (1998): 267–89, at 267; Quill, T.E. et al., “The Debate over Physician-Assisted Suicide: Empirical Data and Convergent Views,” Annals of Internal Medicine, 128, no. 7 (1998): 552–58, at 552–53; Brockopp, D.Y. et al., “Barriers to Change: A Pain Management Project,” International Journal of Nursing Studies, 35 (1998): 226–32; Gilson, A.M. and Joranson, D.E., “Controlled Substances and Pain Management: Changes in Knowledge and Attitudes of State Medical Regulators,” Journal of Pain and Symptom Management, 21, no. 3 (2001): 227–37, at 227.CrossRefGoogle Scholar
See Johnson, , “Disciplinary Actions and Pain Relief: Analysis of the Pain Relief Act,” supra note 1, at 319; Joranson, D.E. and Gilson, A.M., “Improving Pain Management Through Policy Making and Education for Medical Regulators,” Journal of Law, Medicine & Ethics, 24, no. 4 (1996): 344–47, at 344; Hill, C.S. Jr., “The Negative Influence of Licensing and Disciplinary Boards and Drug Enforcement Agencies on Pain Treatment with Opioid Analgesics,” Journal of Pharmaceutical Care in Pain & Symptom Control, 1, no. 1 (1993): 43–62, at 44; Tolle, S., “Family Reports of Pain in Dying Hospitalized Patients: A Structured Telephone Survey,” Western Journal of Medicine, 172 (2000): 374–77, at 374; Shapiro, R., “Health Care Providers' Liability Exposure for Inappropriate Pain Management,” Journal of Law, Medicine & Ethics, 24, no. 4 (1996): 360–64, at 360; Ostrom, C.M., “Doctors Leery of U.S. Crackdown on Pain Drugs,” The Seattle Times, January 29, 2002, at A1, A7.CrossRefGoogle Scholar
Portenoy, R.K., “Opioid Therapy for Chronic Nonmalignant Pain: A Review of the Critical Issues,” Journal of Pain and Symptom Management, 11, no. 4 (1996): 203–17, at 208; Shapiro, supra note 2, at 363; Foley, K.M., “The Relationship of Pain and Symptom Management to Patient Requests for Physician-Assisted Suicide,” Journal of Pain and Symptom Management, no. 5 (1991): 289–97, at 291; Weinstein, S.M. et al., “Physicians’ Attitudes Toward Pain and the Use of Opioid Analgesics: Results of a Survey from the Texas Cancer Pain Initiative,” Southern Medical Journal, 93, no. 5 (2000): 479–87; Hill, Jr., supra note 2; Brockopp, et al., supra note 1.CrossRefGoogle Scholar
Joranson, D.E. and Gilson, A.M., “Controlled Substances, Medical Practice, and the Law,” in Schwartz, H., ed., Psychiatric Practice Under Fire: The Influence of Government, the Media and Special Interests on Somatic Therapies (Washington, D.C.: American Psychiatric Press, 1994): 173–94; Greenwald, B.D. and Narcessian, E.J., “Opioids for Managing Patients with Chronic Pain: Community Pharmacists' Perspectives and Concerns,” Journal of Pain and Symptom Management, 17, no. 5 (1999): 369–75.Google Scholar
Portenoy, , supra note 3, at 204; Sees, K.L. and Clark, H.W., “Opioid Use in the Treatment of Chronic Pain: Assessment of Addiction,” Journal of Pain and Symptom Management, 8, no. 5 (1993): 257–64, at 258; Whitecar, P.S., Jonas, A.R., and Clasen, M.E., “Managing Pain in the Dying Patient,” American Family Physician, 61, no. 3 (2000): 755–64, at 761; Weinstein, et al., supra note 3; Greenwald, and Narcessian, , supra note 4.Google Scholar
Joranson, and Gilson, , supra note 4, at 181.Google Scholar
Johnson, , “Introduction: Legal and Regulatory Issues in Pain Management,” supra note 1, at 265; Weissman, D., “Doctors, Opioids, and the Law: The Effect of Controlled Substances Regulations on Cancer Pain Management,” Seminars in Oncology, 20, no. 1, suppl. A (1993): 53–58, at 55; Hill, Jr., supra note 2; Portenoy, , supra note 3; Gilson, and Joranson, , supra note 1; Joranson, D.E. and Gilson, A.M., “Pharmacists’ Knowledge of and Attitudes Toward Opioid Pain Medications in Relation to Federal and State Policies,” Journal of the American Pharmaceutical Association, 41, no. 2 (2001): 213–20; Weinstein, et al., supra note 3; See Federation of State Medical Boards, Model Guidelines for the Use of Controlled Substances for the Treatment of Pain (adopted May 2, 1998), available at <http://www.medsch.wisc.edu/painpolicy/domestic/model.htm> [hereinafter cited as FSMB Guidelines].Google Scholar
Joranson, and Gilson, , supra note 7, at 217; Joranson, D.E. and Gilson, , supra note 4, at 176.Google Scholar
Controlled Substances Act (1970), 21 U.S.C §§ 801 et seq.; Abood, R.R. and Brushwood, D.B., Pharmacy Practice and the Law (Gaithersburg, Vlaryland: Aspen, 2001): At 192; Greenwald, and Narcessian, , supra note 4, at 374; Behr, D., “Prescription Drug Control Under the Federal CSA: A Web of Administrative, Civil, and Criminal Law Controls,” Washington University Journal of Urban and Contemporary Law, 45 (1994): 41–119; FSMB Guid lines, supra note 7.Google Scholar
Gilson, and Joranson, , supra note 1; Joranson, and Gilson, , supra note 7; Greenwald, and Narcessian, , supra note 4; Weinstein, et al., supra note 3.Google Scholar
Johnson, , “Disciplinary Actions and Pain Relief: Analysis of the Pain Relief Act,” supra note 1, at 320, 326; Hyman, C., “Pain Management and Disciplinary Action: How Medical Boards Can Remove Barriers to Effective Treatment,” Journal of Law, Medicine & Ethics, 14, no. 4 (1996): 338–43, at 338; Joranson, and Gilson, , supra note 2, at 344; Shapiro, , supra note 2, at 363; Hill, Jr., supra note 2, at 43–44; Jost, T.S., “Public Financing of Pain Management: Leaky Umbrellas and Ragged Safety Nets,” Journal of Law, Medicine & Ethics, 26, no. 4 (1998): 290–307, at 291; Portenoy, , supra note 3; Alpers, supra note 1; Hoffmann, , supra note 1; McIntosh, H., “Regulatory Barriers Take Some Blame for Pain Undertreatment,” Journal of the National Cancer Institute, 83, no. 17 (1991): 1202–04; McIntosh, H., “How Physicians Handle Drug Investigations,” Journal of the National Cancer Institute, 83, no. 18 (1991): 1282–84; Nowak, R., “Cops and Doctors: Drug Busts Hamper Pain Therapy,” The Journal of NIH Research, 4 (1992): 27–28; Weinstein, et al., supra note 3; Ostrom, supra note 2, at A1, A7.Google Scholar
Foley, , supra note 3, at 291; Hyman, , supra note 11, at 338; Portenoy, , supra note 3; Nowak, , supra note 11; Brockopp, et al., supra note 1.Google Scholar
Portenoy, , supra note 3, at 204; Sees, and Clark, , supra note 5, at 258; Whitecar, , Jonas, , and Clasen, , supra note 5, at 761; Weinstein, et al., supra note 3; Greenwald, and Narcessian, , supra note 4.Google Scholar
Foley, , supra note 3; Portenoy, , supra note 3; Nowak, , supra note 11; Hyman, , supra note 11, at 338.Google Scholar
Weinstein, et al., supra note 3, at 481.Google Scholar
Hill, Jr., supra note 2, at 45, 48.Google Scholar
Martino, A.M., “In Search of a New Ethic for Treating Patients with Chronic Pain: What Can Medical Boards Do?,” Journal of Law, Medicine & Ethics, 26, no. 4 (1998): 332–49, at 332.CrossRefGoogle Scholar
Wilford, B.B. et al., “An Overview of Prescription Drug Misuse and Abuse: Defining the Problem and Seeking Solutions,” Journal of Law, Medicine & Ethics, 22, no. 3 (1994): 197–203, at 199.CrossRefGoogle Scholar
Wilford, et al., supra note 18.Google Scholar
See Vilensky, W., Steer, R.A., and Weikel, C.V., “Background Characteristics of Judicious and Injudicious Prescribers in New Jersey,” Journal of Forensic Sciences, 32, no. 1 (1987): 201–07 (found that 12 percent of injudicious prescribers were impaired).CrossRefGoogle Scholar
Wilford, et al., supra note 18; Jesilow, P.D., Pontell, H.N., and Geis, G., “Medical Criminals: Physicians and White-Collar Offenses,” Justice Quarterly, 2 (1985): 149–65, at 155–56. See also Behr, , supra note 9.Google Scholar
Conlan, M.F., “U.S. Congress May Try to Kill Oregon's Assisted-Suicide Law,” Drug Topics, 143, no. 19 (October 4, 1999): 85–86, at 86; Orentlicher, D. and Caplan, A., “The Pain Relief Promotion Act of 1999: A Serious Threat to Palliative Care,” JAMA, 283, no. 2 (2000): 255–58, at 255–56; Shapiro, R., “Liability Issues in the Management of Pain,” Journal of Pain and Symptom Management, 9, no. 3 (1994): 146–52, at 149; Ziegler, S.J. and Lovrich, N.R. Jr., Prohibiting Physician-Assisted Suicide at the Expense of Pain Relief(September 2001), Pain and the Law Website, at <http://www.painandthelaw.org/mayday/ziegler_lovrich_100301.php>; Ostrom, supra note 2. Although several people have used the terms interchangeably, euthanasia and physician-assisted suicide are actually two distinct practices and can be distinguished on the basis of patient control. Specifically, in physician-assisted suicide, the physician provides the means or instructions on how to hasten the patient's death, but it is the patient who must actually cause the consumption of the substance. In contrast, euthanasia (“mercy-killing”) involves the administration of the substance by the physician (e.g., a lethal injection). Humphry, D. and Clement, M., Freedom to Die: People, Politics, and the Right to Die Movement (New York: St. Martin's Griffin, 2000): At 287; Clark, N., The Politics of Physician-Assisted Suicide (New York: Garland Publishing, 1997): At 7, 10; Steinbrook, R., “Physician-Assisted Suicide in Oregon — An Uncertain Future,” N. Engl. J. Med., 346, no. 6 (2002): 460–64, at 460.Google Scholar
Hallenbeck, J., “Terminal Sedation for Intractable Distress,” Western Journal of Medicine, 171, no. 4, (1999): 222–23, at 222; Cherny, N.I. and Portenoy, R.K., “Sedation in the Management of Refractory Symptoms: Guidelines for Evaluation and Treatment,” Journal of Palliative Care, 10, no. 2 (1994): 31–38; Hardy, J., “Sedation in Terminally 111 Patients”, The Lancet, 356 (2000): 1866–67; Billings, A.J. and Block, S.D., “Slow Euthanasia,” Journal of Palliative Care, 12, no. 4 (1996): 21–30; Cantor, N., “Twenty-Five Years After Quintan: A Review of the Jurisprudence of Death and Dying,” Journal of Law, Medicine & Ethics, 29, no. 2 (2001): 182–96; Alpers, A. and Lo, B., “The Supreme Court Addresses Physician-Assisted Suicide. Can Its Rulings Improve Palliative Care?,” Archives of Family Medicine, 8 (1999): 200–05.Google Scholar
Quill, et al., supra note 1; Billings, and Block, , supra note 23; Cherny, and Portenoy, , supra note 23; Hallenbeck, , supra note 23.Google Scholar
Cantor, , supra note 23, at 187; Hallenbeck, , supra note 23; Quill, T.E., Lo, B., and Brock, D.W., “Palliative Options of Last Resort: A Comparison of Voluntarily Stopping Eating and Drinking, Terminal Sedation, Physician-Assisted Suicide, and Voluntary Active Euthanasia,” JAMA, 278, no. 23 (1997): 2099–104.Google Scholar
Fohr, S., “The Double Effect of Pain Medication: Separating Myth from Reality,” Journal of Palliative Medicine, 1, no. 4 (1998): 315–28; Meisel, A., Jernigan, J.C., and Youngner, S.J., “Prosecutors and End-of-Life Decision Making,” Archives of Internal Medicine, 159, no. 10 (1999): 1089–95.Google Scholar
Fohr, , supra note 26, at 318–21; Quill, T.E., “Principle of Double Effect and End-of-Life Pain Management: Additional Myths and a Limited Role,” Journal of Palliative Medicine, 1, no. 4 (1998): 333–36; Weinstein, et al., supra note 3.Google Scholar
Fohr, , supra note 26, at 316.Google Scholar
Fohr, , supra note 26; Quill, et al., supra note 1; Whitecar, , Jonas, , and Clasen, , supra note 5.Google Scholar
Cantor, , supra note 23, at 186.Google Scholar
See also Alpers, and Lo, , supra note 23; Meisel, , Jernigan, , and Youngner, , supra note 26; Orentlicher, D., “The Supreme Court and Physician-Assisted Suicide: Rejecting Assisted Suicide but Embracing Euthanasia,” N. Engl. J. Med., 337, no. 17 (1997): 1236–39, at 1236–37.Google Scholar
See generally Meisel, A., Snyder, L., and Quill, T., “Seven Legal Barriers to End-of-Life Care: Myths, Realities, and Grains of Truth,” JAMA, 284, no. 19 (2000): 2495–501; Cantor, , supra note 23.CrossRefGoogle Scholar
Steinbrook, , supra note 22, at 463; Gostin, L., “Drawing a Line Between Killing and Letting Die: The Law, and Law Reform, on Medically Assisted Dying,” Journal of Law, Medicine & Ethics, 21, no. 1 (1993): 94–101, at 94; Orentlicher, and Caplan, , supra note 22.Google Scholar
Cantor, N. and Thomas, G. III, “Pain Relief, Acceleration of Death, and Criminal Law,” Kennedy Institute of Ethics Journal, 6, no. 2 (1996): 107–28.Google Scholar
Orentlicher, , supra note 31. See also Billings, and Block, , supra note 23; Alpers, and Lo, , supra note 23.Google Scholar
Orentlicher, and Caplan, , supra note 22, at 256; Cantor, , supra note 23; Cantor, and Thomas, III, supra note 34; Alpers, and Lo, , supra note 23.Google Scholar
Lethal Drug Abuse Prevention Act, H.R. 4006, 105th Congress, 2d session (1998); Pain Relief Promotion Act (PRPA), H.R. 2260, 106th Congress (1999); Conlan, , supra note 22, at 86; Orentlicher, and Caplan, , supra note 22; Baron, C., “Assisted Dying,” Trial, 35, no. 7 (1999): 44–50. See also Ziegler, and Lovrich, , supra note 22; Steinbrook, , supra note 22 (voicing concern that an intent to comfort terminal patients with the administration of opioids could be viewed by law enforcement as intent to hasten death).Google Scholar
Concerns over determining physicians’ intent were raised by the Hospice Patients Alliance, which at one time encouraged people to report physicians to the Drug Enforcement Administration if a terminally ill patient died and prescription drugs were involved. See Hospice Patients Alliance, When Narcotics Are Misused in Order to Kill a Patient You Can Report the Crime to the U.S. Drug Enforcement Administration, at <http://www.hospiceparients.org/usdoj-dea-ofclist.html> (last visited October 4, 2000).+(last+visited+October+4,+2000).>Google Scholar
Alpers, , supra note 1, at 309. Pamela Bucy notes that it “is unfortunate that the only mechanism readily available to study prosecutions of health care providers is through reported cases. This is inadequate for two reasons. First, courts are reporting fewer and fewer of their opinions…. Second, significant cases are often settled. These two deficiencies in the sample make it difficult to detect trends, especially in an area changing as rapidly as health care.” Bucy, P., “The Poor Fit of Traditional Evidentiary Doctrine and Sophisticated Crime: An Empirical Analysis of Health Care Fraud Prosecutions,” Fordham Law Review, 63 (1994): 383–528, at 386 n.6.Google Scholar
Alpers, , supra note 1.Google Scholar
Meisel, , Jernigan, , and Youngner, , supra note 26.Google Scholar
See, e.g., Benson, M.L. and Cullen, F.T., Combating Corporate Crime: Local Prosecutors at Work (Boston: Northeastern University Press, 1998); Benson, M.L. et al., “District Attorneys and Corporate Crime: Surveying the Prosecutorial Gatekeepers,” Criminology, 26, no. 3 (1988): 505–18; Benson, M.L., Cullen, F.T., and Geis, G., “Local Prosecutors and Corporate Crime,” Crime and Delinquency, 36, no. 3 (1990): 356–72; Jesilow, , Pontell, , and Geis, , supra note 21; Ayers, K.A. Jr., and Frank, J., “Deciding to Prosecute White-Collar Crime: A National Survey of State Attorneys General,” Justice Quarterly, 4, no. 3 (1987): 425–39.Google Scholar
Although the knowledge and opinions held by U.S. Attorneys are important as well, particularly since they work so closely with the Drug Enforcement Administration and have federal jurisdiction over conduct occurring in Veterans Administration (VA) hospitals, empirical research necessarily proceeds in steps. Consequently, in light of resource and time constraints, coupled with the realization that there are ten times more local prosecuting officials than appointed U.S. Attorneys, we narrowed our focus in this instant study to local prosecutors.Google Scholar
Jacoby, J.E., “The Charging Policies of Prosecutors,” in McDonald, W.F., ed., The Prosecutor (Beverly Hills: Sage Publications, 1979): 75–95, at 76–77; Jacoby, J.E., The American Prosecutor: A Search for Identity (Lexington, Massachusetts: Lexington Books, 1980): At 195; Thomas, C.W. and Fitsh, W.A., “Prosecutorial Decision Making,” American Criminal Law Review, 13, no. 3 (1976): 507–59, at 509; Cole, G.F., Politics and the Administration of Justice (Beverly Hills: Sage Publications, 1973).Google Scholar
Alpers, , supra note 1, at 308.Google Scholar
Jacoby, , The American Prosecutor: A Search for Identity, supra note 44, at xix.Google Scholar
Id. at xv; Jacoby, , “The Charging Policies of Prosecutors,” supra note 44, at 75. The chief prosecuting attorneys in our study carry different titles: Prosecuting attorney (Washington), district attorney (Oregon), and state's attorney (Connecticut and Maryland).Google Scholar
Cole, , supra note 44, at 113–14.Google Scholar
Cole, , supra note 44, at 112, 150; Jacoby, , “The Charging Policies of Prosecutors,” supra note 44, at 75.Google Scholar
Miller, F.W., Prosecution: The Decision to Charge a Suspect with a Crime, Report of the American Bar Foundation's Survey of the Administration of Criminal Justice in the United States (Boston: Little, Brown and Company, 1969): At 295; Cole, G.F., “The Decision to Prosecute,” Law and Society Review, 4, no. 3 (1970): 331–43.Google Scholar
Jacoby, , The American Prosecutor: A Search for Identity, supra note 44, at 47.Google Scholar
Jacoby, , “The Charging Policies of Prosecutors,” supra note 44, at 78.Google Scholar
Cox, S.J., “Prosecutorial Discretion: An Overview.” American Criminal Law Review, 13, no. 3 (1976): 383–434; Jacoby, , The American Prosecutor: A Search for Identity, supra note 44; Miller, , supra note 50; Thomas, and Fitch, , supra note 44.Google Scholar
Jackson, R., “The Federal Prosecutor,” Journal of the American Judicature Society, 24 (1940): 18–20, at 18.Google Scholar
Spohn, C., Beichner, D., and Davis-Frenzel, E., “Prosecutorial Justifications for Sexual Assault Case Rejection: Guarding the Gateway to Justice,” Social Problems, 48, no. 2 (2001): 206–35; Jacoby, , The American Prosecutor: A Search for Identity, supra note 44.CrossRefGoogle Scholar
Gottfredson, M.R. and Gottfredson, D.M., Decision Making in Criminal Justice: Toward the Rational Exercise of Discretion, 2nd ed. (New York: Plenum Press, 1988): At 113–14. See also Teslik, R., Prosecutorial Discretion—the Decision to Charge: An Annotated Bibliography (Washington, D.C.: U.S. Department of Justice, Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, 1975); Kaplan, J., “The Prosecutorial Discretion — A Comment.” University of Northwestern Law Review, 60, no. 2 (1965): 174–93; Jacoby, , The American Prosecutor: A Search for Identity, supra note 44; Miller, , supra note 50; Frase, R.S., “The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial Discretion,” University of Chicago Law Review, 47 (1980): 246–330; Thomas, and Fitch, , supra note 44; Cox, , supra note 53.CrossRefGoogle Scholar
Albonetti, C.A., “Prosecutorial Discretion: The Effects of Uncertainty,” Law and Society Review, 21, no. 2 (1987): 291–313, at 291; Eisenstein, J., “Unsettled Territory: An Overview of Research on The Legal Process,” Law & Courts (newsletter of the Law and Courts Section of the American Political Science Association), 11, no. 1 (2000): 1–32, at 5 (part of symposium issue on Politics and Prosecutors).CrossRefGoogle Scholar
McGhee, M.E., “Prosecutorial Discretion,” Georgetown Law Journal, 88 (2000): 1057–69, at 1057.Google Scholar
Gershman, B.L., “A Moral Standard for the Prosecutor's Exercise of the Charging Discretion.” Fordham Urban Law Journal, 20 (1993): 513–30, at 513 n.3. Aside from the role that convictability plays in the decision to charge, both Miller, , supra note 50, and Gottfredson, and Gottfredson, , supra note 56, recognized that there are reasons beyond legal concerns for not charging a suspect. For instance, although a prosecutor may decline to charge a suspect for legal reasons, such as insufficient evidence, a closer examination may indicate that the legal reason is merely a facade for an outright discretionary action. Specifically, a review of the case may reveal that there is sufficient legal evidence to convict; however, prosecution of the offender is “otherwise undesirable” in light of extralegal factors. Miller, , supra note 50, at 155. In fact, this “insufficient evidence” designation is often a convenient way out for the public prosecutor. Miller, , supra note 50, at 156.Google Scholar
Cole, , supra note 44.Google Scholar
Schmidt, J. and Steury, E.H., “Prosecutorial Discretion in Filing Charges in Domestic Violence Cases,” in Cole, G.F. and Gertz, M.G., eds., The Criminal Justice System: Politics and Policies, 7th ed. (Belmont, California: Wadsworth Publishing, 1998): 187–201.Google Scholar
Hirschel, D. and Hutchison, I.W., “The Relative Effects of Offense, Offender, and Victim Variables on the Decision to Prosecute Domestic Violence Cases,” Violence Against Women, 7, no. 1 (2001): 46–59; Miller, , supra note 50; Baumer, E.R., Messner, S.F., and Felson, R.B., “The Role of Victim Characteristics in the Disposition of Murder Cases,” Justice Quarterly, 17, no. 2 (2000): 281–307; Frohmann, L., “Convictability and Discordant Locales: Reproducing Race, Class, and Gender Ideologies in Prosecutorial Decisionmaking,” Law & Society Review, 31, no. 3 (1997): 531–55; Schmidt, and Steury, , supra note 61.CrossRefGoogle Scholar
Cole, , supra notes 44, 50.Google Scholar
Frohmann, , supra note 62; Spohn, , Beichner, , and Davis-Frenzel, , supra note 55.Google Scholar
Miller, , supra note 50; Pritchard, D., “Homicide and Bargained Justice: The Agenda-Setting Effect of Crime News on Prosecutors,” Public Opinion Quarterly, 50 (1986): 143–59; Haynie, S.L. and Dover, E.A., “Prosecutorial Discretion and Press Coverage,” American Politics Quarterly, 22, no. 3 (1994): 370–81.Google Scholar
Albonetti, , supra note 57.Google Scholar
Frohmann, , supra note 62, at 535 (citing Emerson, R.M. and Paley, B.P., “Organizational Horizons and Complaint-Filing,” in Hawkins, K., ed., The Uses of Discretion (New York: Oxford University Press, 1992)). See also Frohmann, L., “Discrediting Victims’ Allegations of Sexual Assault: Prosecutorial Accounts of Case Rejections,” Social Problems, 38, no. 2 (1991): 213–26, at 224.Google Scholar
Friedrichs, D.O., Trusted Criminals: White-collar Crime in Contemporary Society (Boston: Wadsworth Publishing Company, 1996): At 10.Google Scholar
Green, G.S., Occupational Crime, 2nd ed. (Chicago: Nelson-Hall Publishers, 1997): At 15; Friedrichs, , supra note 68, at 102; Jesilow, , Pontell, , and Geis, , supra note 21.Google Scholar
Jesilow, , Pontell, , and Geis, , supra note 21, at 160.Google Scholar
Friedrichs, , supra note 68, at xvii; Green, , supra note 69, at xiii (quoting Gilbert Geis).Google Scholar
Friedrichs, , supra note 68, at 2, 22.Google Scholar
Albonetti, C.A., “Direct and Indirect Effects of Case Complexity, Guilty Pleas, and Offender Characteristics on Sentencing for Offenders Convicted of a White-Collar Offense Prior to Sentencing Guidelines,” Journal of Quantitative Criminology, 14, no. 4 (1998): 353–79, at 357; Jesilow, , Pontell, , and Geis, , supra note 21; Ayers, Jr., and Frank, , supra note 42.CrossRefGoogle Scholar
Friedrichs, , supra note 68, at 50–53. See also Johnson, , “Disciplinary Actions and Pain Relief: Analysis of the Pain Relief Act,” supra note 1, at 320–21.Google Scholar
Jesilow, , Pontell, , and Geis, , supra note 21, at 161.Google Scholar
Green, , supra note 69, at 184; Jesilow, , Pontell, , and Geis, , supra note 21.Google Scholar
Jesilow, , Pontell, , and Geis, , supra note 21, at 154.Google Scholar
Jesilow, , Pontell, , and Geis, , supra note 21; Behr, , supra note 9; Van Grunsven, P., “Criminal Prosecution of Health Care Providers for Clinical Mistakes and Fatal Errors: Is ‘Bad Medicine’ a Crime?,” Journal of Health and Hospital Law, 29, no. 2 (1995): 107–20; Jost, , supra note 11.Google Scholar
Bensel, F.P. and Goldberg, B.D., “Prosecutions and Punitives for Malpractice Rise, Slowly,” National Law Journal, January 22, 1996 7; Alpers, supra note 1; Van Grunsven, , supra note 78; Liederbach, J. et al. The Criminalization of Physician Violence: Sorol in transformation,” Justice Quarterly, 18, no. 1 (2001) 41–70.Google Scholar
Grunsven, Van, supra note 78, at 112; Van Grunsven, P., “Medical Malpractice or Criminal Mistake? An Analysis of Past and Current Criminal Prosecutions for Clinical Mistakes and Fatal Errors,” DePaul Journal of Health Care, 1 (1997): 1–54, at 51; Liederbach, et al., supra note 79, at 148–49.Google Scholar
Liederbach, et al., supra note 79, at 145–50; Benson, , Cullen, , and Geis, , supra note 42, at 364.Google Scholar
Jesilow, , Pontell, , and Geis, , supra note 21, at 160.Google Scholar
Id. at 161. “U.S. Attorneys are extraordinarily kind to doctors, because even if they are crooks, theoretically they are still providing some useful services to the community.”Google Scholar
Meisel, , Jernigan, , and Youngner, , supra note 26.Google Scholar
Id. at 1092.Google Scholar
Id. at 1090.Google Scholar
Id.Google Scholar
Id. at 1092.Google Scholar
Alpers, , supra note 1, at 308.Google Scholar
Id. at 311.Google Scholar
Id. at 315.Google Scholar
Id.Google Scholar
Id. at 311.Google Scholar
See Donaghue Medical Research Foundation, II. Assessment of Pain Management and Obstacles to Adequate Pain Management in Connecticut, at <http://www.aslme.org/research/proposal_pt2.php> (last visited February 18, 2003).+(last+visited+February+18,+2003).>Google Scholar
Dillman, D.A., Mail and Internet Surveys: The Tailored Design Method, 2nd ed. (New York: John Wiley and Sons, Inc., 2000).Google Scholar
Meisel, , Jernigan, , and Youngner, , supra note 26.Google Scholar
Alpers, , supra note 1, at 315.Google Scholar
Fohr, , supra note 26; Quill, et al., supra note 1.Google Scholar
Whitecar, , Jonas, , and Clasen, , supra note 5, at 761.Google Scholar
Fohr, , supra note 26, at 316.Google Scholar
See Cantor, supra note 23; Alpers, and Lo, , supra note 23; Orentlicher, and Caplan, , supra note 22; Vacco v. Quill, 521 U.S. 793 (1997).Google Scholar
Pain Relief Promotion Act of 1999: Hearing on H.R. 2260 Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 106th Cong. (June 24, 1999) (written testimony of Walter R. Hunter, Associate National Medical Director, VistaCare Hospice), available at <http://www.house.gov/judiciary/hunt0624.htm>..>Google Scholar
Benson, et al., supra note 42; Benson, and Cullen, , supra note 42; Ayers, Jr., and Frank, , supra note 42; Liederbach, et al., supra note 79.Google Scholar
Meisel, , Jernigan, , and Youngner, , supra note 26; Gilson, and Joranson, , supra note 1; Benson, and Cullen, , supra note 42; Benson, et al., supra note 42; Ayers, Jr., and Frank, , supra note 42; Weinstein, et al., supra note 3; Liederbach, et al., supra note 79. Special thanks to Gilson, Aaron Ph.D., and Youngner, Stuart M.D., who helped further refine our thinking.Google Scholar
Steinbrook, , supra note 22. See also Ziegler, S.J. and Lovrich, N.P. Jr., Pain Relief and Prohibiting PAS: The Saga Continues (September 2001), Pain and the Law Website, at <http://www.painandthelaw.org/mayday/ziegler_lovrich_110101.php>..>Google Scholar
Alpers, , supra, note 1.Google Scholar
Jacoby, , The American Prosecutor: A Search for Identity, supra note 44.Google Scholar
See, e.g., id.Google Scholar
Sees, and Clark, , supra note 5, at 258.Google Scholar
Wilford, et al., supra note 18.Google Scholar
Gaffney, M. and Lovrich, N.P. Jr., Perceptions of Crime: Differential Citizen Views of Problems of Public Order at the City and Neighborhood Level, paper presented at the Annual Meeting of the Academy of Criminal Justice Sciences, New Orleans, March 24, 2000. See also Benson, and Cullen, , supra note 42.Google Scholar
Due to variation in the names of offenses among the states, we classified offenses using a generic classification scheme. Moreover, to avoid double counting, we counted only the highest offense when respondents provided lesser included offenses as alternatives (e.g., when both murder and manslaughter were offered, only murder was counted).Google Scholar
We also drew a distinction between “uncertain” (the respondent was taking a middle ground as to whether the profession was effective or not in policing its own) and “do not know.” Those choosing “uncertain” would correspond with a score of 4 along the seven-point scale, and those who did not know checked the box labeled “Don’t Know.”Google Scholar
See Grunsven, Van, supra note 80; Liederbach, et al., supra note 79.Google Scholar
Benson, and Cullen, , supra note 42; Jesilow, , Pontell, , and Geis, , supra note 21; Benson, et al., supra note 42; and Ayers, Jr., and Frank, , supra note 42.Google Scholar
We recognize that there are other parametric and non-parametric tests that we could have selected that would have contributed further to our analysis.Google Scholar
All variables were reviewed, and those which posed a risk of tautology were omitted.Google Scholar
See, e.g., Goodwin, P., “Oregon's Physician Assisted Suicide Law: An Alternative Viewpoint,” Archives of Internal Medicine, 157, (1997): 1642–44; Ziegler, S.J. and Lovrich, N.E. Jr., Examining the Link Between Physical Pain and Requests for Hastened Death: Different Results or Different Values? (July 2, 2002), Pain and the Law Website, at <http://www.painandthelaw.org/mayday/ziegler_070202.php>; Bonnie, R.J. and Guyer, B., “Injury as a Field of Public Health: Achievements and Controversies,” Journal of Law, Medicine & Ethics, 30, no. 2 (2002): 267–80, at 278.CrossRefGoogle Scholar
Weinstein, et al., supra note 3, at 481.Google Scholar
Greenwald, and Narcessian, , supra note 4, at 373.Google Scholar
Joranson, and Gilson, , supra note 7, at 217.Google Scholar
Gilson, and Joranson, , supra note 1, at 235.Google Scholar
Weinstein, et al., supra note 3, at 480.Google Scholar
Gilson, and Joranson, , supra note 1, at 230.Google Scholar
Joranson, and Gilson, , supra note 7, at 215.Google Scholar
Greenwald, and Narcessian, , supra note 4, at 371.Google Scholar
Gilson, and Joranson, , supra note 1, at 230.Google Scholar
See Alpers, , supra note 1; Jesilow, , Pontell, , and Geis, , supra note 21.Google Scholar
See notes 112 and 115, supra.Google Scholar
Alpers, , supra note 1, at 315.Google Scholar
Jesilow, , Pontell, , and Geis, , supra note 21, at 161.Google Scholar
See Benson, and Cullen, , supra note 42; Benson, , Cullen, , and Geis, , supra note 42.Google Scholar
See Martino, , supra note 17. For a related context, see Lawthers, A.C. et al., “Physicians' Perceptions of the Risk of Being Sued,” Journal of Health Politics, Policy and Law, 17, no. 3 (1992): 463–82.Google Scholar
Gilson, and Joranson, , supra note 1. See also Hoover v. Agency for Health Care Admin., 676 So. 2d 1380 (Fla. Dist. Ct. App. 1996).Google Scholar
Zaller, J. and Feldman, S., “A Simple Theory of the Survey Response: Answering Questions versus Revealing Preferences,” American Journal of Political Science, 36, no. 3 (1992): 579–616.CrossRefGoogle Scholar
Alpers, , supra note 1; Meisel, , Jernigan, , and Youngner, , supra note 26.Google Scholar
Alpers, , supra note 1.Google Scholar
Id. at 311.Google Scholar
See, e.g., Behr, , supra note 9; Jesilow, , Pontell, , and Geis, , supra note 21.Google Scholar
Joranson, D.E. et al., “Pain Management, Controlled Substances, and State Medical Board Policy: A Decade of Change,” Journal of Pain and Symptom Management, 23, no. 2 (2002): 138–47, at 144; Hyman, , supra note 11, at 338.CrossRefGoogle Scholar
For a comprehensive examination of state and federal policies relating to the medical use of opioids, see Joranson, D. E. et al., Achieving Balance in Federal and State Pain Policy: A Guide to Evaluation (Madison: The Pain & Policy Studies Group, University of Wisconsin Comprehensive Cancer Center, 2000), available at <http://www.medsch.wisc.edu/painpolicy/eguide2000/index.html>.Google Scholar