Hmmm, your best bet may be to look towards law professors. This is the kinda thing they like to do. There is one here at my law school that might be interested in this type of case. He is very big into civil rights and large proponent of the ACLU. While I disagree with most of his viewpoints, the man is a genious when it comes to constitutional law. I'd stay away from criminal defense attorney's on this. This is strictly Constitutional interpretation.

Unfortunately, practicing lawyers aren't all rich. A challenge like this will most likely consume a huge amount of time. There aren't a ton that can put everything on hold. However, law professors have a huge resource at hand... law students that are required to do pro bono work. Thus, the law professors get the benefit of doing outside work and the students that do most of the research meet the pro bono requirement for graduation. Look at some law schools with prominent conlaw scholars. Thats your best bet.

I have to admit though, I don't know if a person has a fundamental right to specialized pain treatment, which seems to be the central point of this argument. My gut says no. Heck, I don't know if a person has a fundamental right to palliative (pain management) care at all. It is not necessary for life. I have a feeling that the recent medical marijuana decision provides some guidance. Good luck though. It seems a worthy cause.

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- Nick
Now that I know some of you guys look through the special needs bags for kicks, I'm gonna put some really weird stuff in mine. I can see it now. "What the heck was he going to do with a family pack of KFC chicken, a football helmet full of peanut butter, a 12 inch rubber dildo, and naked pictures of Bea Arthur?"

Interesting post - thanks for putting this up.

I'll forward to my ex-GF; works for the federal public defender, and does a bunch of pro-bono death penalty work. Not her bailiwick, but she knows everyone....







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Tech writer/support on this here site. FIST school instructor and certified bike fitter. Formerly at Diamondback Bikes, LeMond Fitness, FSA, TiCycles, etc.
Coaching and bike fit - http://source-e.net/ Cyclocross blog - https://crosssports.net/ BJJ instruction - https://ballardbjj.com/

Look out for the boogy man. More reasons why I don't vote.

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customerjon @gmail.com is where information happens.

the argument is the person has the right to "legal" pain treatment medications without being thought of as a criminal, in other words, to prove his innocence to avoid going to jail. This has nothing to do with claiming a right to specialized treatment. It just so happens that the only doctors who will treat these difficult patients now are the "specialists" because everyone else is scared silly of the government, and, now, even the specialists are scared and backing away.

The war on drugs has been such a failure it seems the Governemnt, in order to show some progress and justify the billions spent on it, need to go after the easy "king pins", doctors who distribute these drugs in the open every day to hundreds of potential addicts.

Can you contact the Pain Relief Network (Sioban Reynolds, her link is on the paper) and give her your suggestion directly? Thanks.

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Frank,
An original Ironman and the Inventor of PowerCranks

[reply]Look out for the boogy man. More reasons why I don't vote.[/reply]

No, more reasons you should vote.

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Frank,
An original Ironman and the Inventor of PowerCranks

Nope the public has bought the drug lies of our goverment and no ploiticain is going to use common sense.

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customerjon @gmail.com is where information happens.

The first question you should ask them is "Can Dan really bang my credit card just for making an OT post?"

"I'd stay away from criminal defense attorney's on this. This is strictly Constitutional interpretation."

I disagree. It depends on whether you want to win. If you want to handle an interesting case and lose, make it about constitutional rights. It will be a cold day in hell before the Supreme Court finds a new constitutional right to get a certain type of pain treatment. (Although the assisted suicide issue does come close. On the other hand, it hasn't been won yet.)

As a criminal law matter, you may get some traction by attacking the Controlled Substances Act's effect here: 1) The history of the Act shows that Congress was very concerned about not allowed prosecutors to make medical decisions. In fact, the Ninth Circuit's ruling on assisted suicide turns on that very issue. 2) As a matter of criminal law, the doctor has to be provided with fair notice of the illegality of a particular course of action. When medical judgment is involved, reasonable people may differ, which means that the criminal statute lacks notice and thus can't be used to prosecute. The same point may be made by claiming the stutute is vague and therefore can't be enforced.

In the end, winning any case like this requires making your point as small as possible. Don't go for sweeping new rules. Don't claim it's a new constitutional issue. Make it simple. Make it about established everyday plain-vanilla rules.

Frank: I practice (white collar) criminal defense in Los Angeles. I represent a lot of health care providers, including individual doctors, etc. I have also dealt recently with the controlled substances act and its effect on doctors' ability to prescribe medications without a traditional physical exam. In other words, while I may not be able to take on this case myself, I might be able to lend a hand.

My firm's website is birdmarella dot com. There's only one lawyer on there named Benjamin. That's me.

Last point: Maybe you should ask Rush Limbaugh to finance the case. (Just kidding.)

Benjamin

I agree with your points on winning the case for the one defendant. However, my understanding of the paper was that they sought to have the law declared unconstitutional. My understanding was they wanted to mount some sort of facial challenge and not an as applied challenge to just get this one guy around the rules. Perhaps I read it wrong.

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- Nick
Now that I know some of you guys look through the special needs bags for kicks, I'm gonna put some really weird stuff in mine. I can see it now. "What the heck was he going to do with a family pack of KFC chicken, a football helmet full of peanut butter, a 12 inch rubber dildo, and naked pictures of Bea Arthur?"

They're the same: You win for one defendant but in the narrowest way possible. Then other defendants make it through the same (little) loophole you've created.

If for example, you get a ruling that the DEA needs to defer to medical judgment of physicians, you can use that for other defendants too. But you're never going to get a ruling that individuals have a constitutional right to certain pain relief, especially in the face of the government's compelling interest in preventing drug abuse.

I think their interpetation is the same as yours. I will give Sioban your information. You would probably be interested in joining this list serve.

We already have thought about Rush. He would be a great spokesman if he could come to understand the problem, especially in view of which side of the fence his sympathies lie. His problem is he has admitted to being an addict, instead of simply saying his pain was poorly controlled and he was looking for relief.

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Frank,
An original Ironman and the Inventor of PowerCranks

Its splitting hairs here, and I know you are aware of this, but others reading then thread may not... It all depends on how the court crafts the little loophole. Many as-applied challenges have failed because the as-applied loophole was drawn so narrowly by the court, few other situations exist.

To clarify for others: A facial challenge wipes the statute from the books. An as-applied challenge creates a loophole for this one person, but the law is still there.

Correct me if I'm wrong, but if an as applied challenge wins, someone who fits that application can still be arrested under the law. But now they will have precedent to cite to in court/motions.

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- Nick
Now that I know some of you guys look through the special needs bags for kicks, I'm gonna put some really weird stuff in mine. I can see it now. "What the heck was he going to do with a family pack of KFC chicken, a football helmet full of peanut butter, a 12 inch rubber dildo, and naked pictures of Bea Arthur?"

[reply]They're the same: You win for one defendant but in the narrowest way possible. Then other defendants make it through the same (little) loophole you've created.

If for example, you get a ruling that the DEA needs to defer to medical judgment of physicians, you can use that for other defendants too. But you're never going to get a ruling that individuals have a constitutional right to certain pain relief, especially in the face of the government's compelling interest in preventing drug abuse.[/reply]

I find it interesting that, for instance, a finding that the DEA needs to defer to the judgment of physicians, when it comes to medical care, would be seen as a "loophole". I think it shows how screwy the system has become and how out of control the government is when it comes to drugs and many other things.

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Frank,
An original Ironman and the Inventor of PowerCranks

If Dan bangs a credit card for this exchange, it's gonna be yours, not mine.

That said: A facial challenge means that the statute can never be constitutionally applied in any situation. It is only available in cases implicating fundamental rights, such a free speech, religion, etc. For example, you can bring a facial challenge to a law prohibiting hate speech. Moreover, you can bring a facial challenge to vindicate the rights of others. In other words, you can argue that the government can't prosecute you for your hate speech because allowing such a statute would chill the legitimate speech of others.

An as applied challenge is the only challenge available for statutes that do not implicate fundamental rights and you cannot present arguments that the statute may be inappropriate in situations other than yours. However, if you win for your situation, the statute is invalid for all situations similar to yours. The distinction between wiped off the books and the law still being there but having a defense is incorrect.

Here, you would have to bring an as-applied challenge regarding the particular situation of the plaintiff. Then you would use that ruling (for example, that the DEA can't overrule a reasonable doctor's decision) for everyone else it applies to.

In any case, you can always be arrested under any law on the books, no matter how it's been challenged or found invalid. You can always bring a challenge to any indictment by claiming that it violates your constitutional rights, or that the statute has been found invalid.

B.

"I find it interesting that, for instance, a finding that the DEA needs to defer to the judgment of physicians, when it comes to medical care, would be seen as a "loophole". I think it shows how screwy the system has become and how out of control the government is when it comes to drugs and many other things."


I agree with you. Whatever you think about the "War on Drugs," you've got to admit that we're not winning. Illegal drugs have never been cheaper than they are now. That says we're losing.

[reply]Its splitting hairs here, and I know you are aware of this, but others reading then thread may not... It all depends on how the court crafts the little loophole. Many as-applied challenges have failed because the as-applied loophole was drawn so narrowly by the court, few other situations exist.

To clarify for others: A facial challenge wipes the statute from the books. An as-applied challenge creates a loophole for this one person, but the law is still there.

Correct me if I'm wrong, but if an as applied challenge wins, someone who fits that application can still be arrested under the law. But now they will have precedent to cite to in court/motions.[/reply]

I believe you are right here. The problem here is the courts tend to ignore precedents when it comes to drugs. When you get into the details of these cases one has to be appalled at what the court just ignores. For instance, if a physician prescribes pain pills to an "addict" because the addict has lied to the physician and the physcian believed him, the courts have not allowed the physician to use what his intent was in prescribing the pills as a defense. It is simply enough to get fooled once by a patient and you can end up in the slammer for 25 years.

I personally think it falls under the entrapment provisions (the government says if you go to school and fulfill these requirements we will license you to provide these otherwise banned drugs to your patients when you deem medically necessary but, they then turn around and arrest you and put you in the slammer when you do. The crime could not have occurred without enticement and the collusion of the government.). But, either way, if the law (or how it is being enforced is unconstitutional, that will do for me.

Until then, pray you stay healthy.

No wonder it is hard to get more than 20 pills.

Frank

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Frank,
An original Ironman and the Inventor of PowerCranks