I previously wrote in my internet pharmacy criminal defense strategies article that the Ryan Haight Act, somewhat counter-intuitively, provides a potential defense for criminal defendants in online pharmacy and internet prescription prosecutions commenced prior to the effective date of the Act. To summarize, I noted that it is illogical for the DEA and DOJ to argue that an online consultation internet pharmacy model is currently illegal, because the Ryan Haight Act seeks to do just that. In other words, courts should assume that Congress is not wasting its time passing legislation outlawing a practice already illegal. Either the Ryan Haight Act is redundant (which seems ridiculously unlikely) or the current law does not require physical, face-to-face examinations by doctors prescribing controlled substances.
“[t]he overriding problem has been a bureaucratic one: a lack of desire by Assistant US Attorneys to accept and pursue these cases. That trickles down to DEA agents, who don’t want to spend months investigating an Internet pharmacy case that never gets filed.”
In other words, Legitscript suggests that the Ryan Haight Act, while redundant, seeks to much more expressly outlaw online pharmacy prescriptions in order to encourage more prosecutions:
“The bill doesn’t so much enact something new as much as it does codify what the DEA has argued, mostly successfully, is the right interpretation of existing law.”
While this is a credible response and the likely retort by most prosecutors, I wholeheartedly disagree and have a number of responses:
1. If you accept Legitscript’s argument, then you admit reasonable doubt exists for current prosecutions. The simple fact is the very existence of the Ryan Haight Act forces the government, in my opinion, into a catch-22 for current prosecutions. My argument is that the very fact that Congress seeks to enact the Ryan Haight Act indicates that they feel the current law does not prohibit online consultations without a face-to-face medical evaluation. I find it hard to believe that courts would adopt the view that Congress is wasting its time passing redundant legislation. The government has only two possible retorts to this argument. Either they admit the current law does not prohibit online consultations or they seek to provide an explanation for why Congress sought to enact redundant legislation. The only credible, though incorrect, explanation is the one that Legitscript offers:
it’s arguable that existing law on this point isn’t so much unclear as it is convoluted.
If the Ryan Haight Act is needed because Congress, the DEA, the DOJ, and prosecutors felt the current law was unclear or, at the very least, convoluted, reasonable doubt exists for current, pre-Ryan Haight Act prosecutions. To be convicted under The Controlled Substances Act a jury must find that beyond a reasonable doubt the individual knew what they were doing was illegal. If the very prosecutors and agents responsible for enforcing the law think it is unclear, it is absolutely impossible and illogical to impute knowledge on non-legal professionals running websites or writing prescriptions — especially in light of the fact that the Federation of State Medical Board’s Guidelines state that online consultations do constitute doctor-patient relationships.
In fact, the Wall Street Journal today has Dianne Feinstein on record admitting that the Ryan Haight Act was needed because the current law was unclear:
Regulators say the new law is intended in part to strengthen the federal government’s ability to enforce existing statutes and make clear how they apply to the Internet. “This is really making explicit what has been implicit,” said Sen. Dianne Feinstein, a California Democrat and the bill’s lead sponsor in the Senate. “We’ve tried to close this loophole by essentially addressing this problem of controlled substances being sold without any medical oversight or prescription.
Other lawmakers have expressly stated that the Ryan Haight Act fills an unregulated gap. Senator Patrick Leahy, for example, stated it was necessary to “fill a gap in existing law.”
I strongly think any lawmaker who uses the “lack of clarity justification” only does so because they now realize what the Ryan Haight Act does to current prosecutions. Unfortunately for them, the “clarity justification,” in my opinion, makes pre-Ryan Haight Act internet pharmacy prosecutions just as illegitimate, though for different reasons (as I discussed above).
2. Legitscript argues that prosecutors are discouraged from accepting cases under the current law. Further, the Ryan Haight Act encourages such acceptance, because it gives prosecutors a case that is easier to win. Aside from the fact that there is something constitutionally impermissible about redrafting a statute so that prosecutors will win more cases, I somehow doubt prosecutors have been complaining about the failure to win cases.
First, Legitscript offers no evidence of prosecutors refusing to accept cases. Second, over 99% (a rough estimate) of the cases indicted have ended in convictions, and most of these convictions have been guilty pleas. Not only do these cases look like easy wins, prosecutors don’t have to expend much energy since defendants are pleading guilty left and right. If prosecutors are refusing to prosecute cases, the reason must be because they feel that prosecutions under the current law lack any legal legitimacy whatsoever.
3. It is absolutely true, as Legitscript suggests, that the Ryan Haight Act increases the punishments for violations of The Controlled Substances Act. However, if the need for increased punishment was the sole reason for the Ryan Haight Act, then Congress would only have amended the punishment section of the statute. They amended much more; thus, the punishment explanation is a red herring.
Moreover, it is not as if convicted defendants are receiving light punishments under the current law. Legitscript argues that “federal prosecutors usually don’t want to spend much time on a case that will only result in a few months prison.” This is simply not the case. One need not look any further than my comprehensive list of doctor convictions (there are many convictions that resulted in over 2.5 years of prison time). Furthermore, I am aware of pharmacists and website owners who have received much more time. Additionally, prosecutors have the ability to throw in money laundering counts to significantly increase potential prison time. Consequently, the reason for the Ryan Haight Act was not solely to increase punishments in online pharmacy prosecutions.
4. Keep in mind that the Ryan Haight Act is an amendment to The Controlled Substances Act. Thus, once enacted, The Controlled Substances Act will contain both the vague, original provision used to prosecute internet pharmacies pre-Ryan Haight Act and the much more specific, new Ryan Haight Act amendments as well. Imagine how that would look to a court asked to interpret the statute. The Canon of Statutory Interpretation against Surplusage and Redundancy, which Justice Scalia calls “the cardinal rule of statutory interpretation,” requires giving effect to every provision of a statute and not reading similar provisions as redundant. Thus, I think it is perfectly reasonable to articulate to a court presiding over a pre-Ryan Haight Act prosecution that the Act, for it to have effect once it is enacted, must mean that internet facilitated consultations without physical examinations are currently legal.
5. Finally, legislative history expressly suggests that the reason for such legislation was that the current law does not prohibit online consultations lacking physical examinations. In 2004, the Congressional Research Service, in a report entitled “Legal Issues Related to Prescription Drug Sales on the Internet,” stated:
Some rogue sites operate in a legal gray area in which the online pharmacy, as mandated by federal law, requires a prescription before dispensing prescription drugs, but allows patients to secure a prescription by completing an online questionnaire that is reviewed by a doctor who never examines or speaks to the patient. This practice, though potentially unsafe for patients who may be diagnosed incorrectly, is not necessarily illegal.
Thus, either way you look at it, these pre-Ryan Haight prosecutions, in my opinion, lack any legal legitimacy whatsoever.
My previous discussions of the Ryan Haight Act:
- Ryan Haight Act: Overlooking Current Prosecutions
- Detailed Criminal Defense Analysis of Ryan Haight Act
- Pharmacy Association Erroneously Favors the Ryan Haight Act
- House Passes Ryan Haight Act
- House Energy Committee Committee Passes Ryan Haight Act
- Internet Pharmacy Prosecution Criminal Defense Legal Issues: Part 2
- Internet Pharmacy Prosecution Criminal Defense Legal Issues: Part 1
The content on this post does not constitute legal advice and is for informational purposes only. You should not act upon the information presented on this website without seeking the advice of legal counsel. Should you wish to speak to an experienced criminal defense attorney knowledgeable in internet pharmacy, prescription, and drug law, please feel free to contact me directly.