Mute Oracle: The Controlled Substances Act and Physicians’ Criminal Conduct
Posted On May 10, 2017
Criminal laws are supposed to give persons regulated by the law sufficient notice of what conduct, exactly, is prohibited. Criminal laws, as interpreted by courts, are also supposed to provide clear standards for mens rea (that is, the level of intent the Government must prove at trial). With regard to physicians and their prescribing practices, the federal Controlled Substances Act does neither.
With the Eleventh Circuit’s recent decision in United States v. Enmon, physicians continue to face two critical questions in the uncertain case law under the federal Controlled Substances Act. First, what conduct is prohibited? Second, what intent must the physician be shown to possess in order to support a conviction? Given the government’s increasingly aggressive prosecution of physicians with regard to controlled substances, white-collar practitioners who represent a physician or other healthcare professional in a “pill mill” case understand and address these issues in pretrial briefing and in preparing their trial strategy and must do so early.