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April 15, 2010

Way below-guideline sentence for "drug dealer in a lab coat" prompts lots of questions

This Los Angeles Times article reporting on a federal sentence handed down yesterday in California, which is headlined "4-year prison term ordered for 'drug-dealing doctor'," implicates nearly every challenging post-Booker federal sentencing issue that has been confounding federal judges and practioners for the last 5+ years.  Here are the fascinating details:

A Duarte physician who prosecutors said was "nothing more than a drug dealer in a lab coat" was sentenced to four years in federal prison Wednesday for prescribing powerful and highly addictive pain killers to people who had no medical need for the drugs.

The sentence was far less than the 17 years prosecutors had been seeking for Dr. Daniel J. Healy, and well below federal sentencing guidelines that called for a term of 17 to 22 years. Monrovia Police Det. Rich Doney, who worked the case with investigators from the Drug Enforcement Administration, called the sentence "a mockery of justice." "Some of his victims will spend longer than that in rehab," Doney said.

Healy, clad in a green jail-issue jacket and shackled at the waist and ankles, showed no emotion as the sentence was announced. Before imposing the sentence, U.S. District Judge Manuel L. Real said he struggled with balancing the seriousness of Healy's criminal conduct with his lack of a prior criminal record and the legitimate aspects of his medical practice. "He's not the ordinary, everyday drug merchant which we see in this court," Real said.

Real seemed conflicted as he gave a long, at times meandering address about the defendant. At one point Real said, "The evidence shows that Dr. Healy was concerned about the addictions of his patients." Moments later, he said, "Dr. Healy was in this for the money. There's no question about that."

Regardless of Healy's motivation, Real noted that as a result of his conviction, Healy's career as a doctor -- and the financial benefits that came with it -- was over. "Dr. Healy will never be able to do what he's done again when he's released from prison," Real said.

Defense attorney Roger J. Rosen said Healy was thankful for Real's "measured, thoughtful" sentence that took into account all aspects of the case. "He did what a judge was supposed to do," Rosen said.

Healy, according to prosecutors, led the nation in 2008 in ordering hydrocodone -- painkillers sold under the brand names Vicodin and Norco. They accused Healy of wildly overprescribing and selling the drug, for which there is a thriving black market, particularly among young adults. Some of Healy's patients were in their late teens and early 20s and had been friends of Healy's sons. Some patients, court documents state, would leave with hundreds or even thousands of pills at a time.

One man who was observed by police entering Healy's clinic before it opened for the day was pulled over a short time later and had 12 commercial-size bottles of Vicodin and three containers of Xanax in his car -- 7,500 pills in all. The man told police he'd just paid Healy more than $5,000 cash for the drugs, and was planning to sell them for profit, according to court records.

Healy pleaded guilty in July to intentionally distributing oxycodone without a legitimate medical purpose. The remaining 16 counts against him were dropped in exchange for the plea. In addition to imposing the four-year prison term, Real sentenced Healy to 10 years supervised release, 5,000 hours of community service and a $150,000 fine. "The end result is that this particular drug-dealing doctor is off the streets," said Assistant U.S. Atty. David Herzog, who prosecuted the case.

Here are just a few follow-up questions of both theory and practice on which I would love reader input via the comments:

1.  Do folks who believe strongly in retributivist theories of punishment agree that this sentence makes "a mockery of justice"?

2.  Do folks who believe strongly in utilitarian theories of punishment agree that this sentence makes "a mockery of justice"?

3.  Do folks think prosecutors should (and/or will) appeal this sentence as substantively unreasonable?

4.  Do folks think the addition of 5,000(!) hours of community service (which is roughly 2.5 years of indentured servitude) makes the relatively short prison term more reasonable or should that part of the sentence be viewed as insignificant in a post-Booker reasonableness analysis?

April 15, 2010 at 11:19 AM | Permalink


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I’m in the utilitarian camp, and therefore: no, I don’t think this sentence makes a mockery of justice. It seems sufficiently severe to me—if anything, more severe than necessary for utilitarian purposes alone.

I suspect the government will not appeal, as this happened in the Ninth Circuit, where there is a pretty good chance that they’d wind up with a precedent-setting affirmance. There aren’t many docs dealing oxycodone out of their offices, so getting this sentence reversed probably isn’t very important in the larger scheme of things. As a practical matter, the court is correct that this particular defendant presents a low risk of re-offending.

Posted by: Marc Shepherd | Apr 15, 2010 11:35:29 AM

They must something about it, And they must do it fast..

Posted by: ask a doctor | Apr 15, 2010 11:50:47 AM

They must something about it, And they must do it fast.

What...and why? The only thing they can do is appeal, which will move at whatever pace the Ninth Circuit decides. And as I noted, there’s a decent chance that an appeal will leave the government with a worse result.

Posted by: Marc Shepherd | Apr 15, 2010 12:09:16 PM

Community service is a much underused sanction in appropirate cases. I push for it now together with long periods of home detention (I mean 1-3 years). Some judges are persuaded. Wih respect to home confinemnt, a few clients have told me that in hindsight they would have rather gone to prison! I think they were serious.

Posted by: Michael R. Levine | Apr 15, 2010 12:21:11 PM

Note the judge. Manuel Real does lots of strange things.

Posted by: Kent Scheidegger | Apr 15, 2010 12:58:05 PM

Judge Real's trap of 5000 hours of community service is an ordeal that many people can't meet. However, in this case, I think he showed some independence but Doctor's typically get lighter sentencees. It certainly didn't make a mockery of justice.

Posted by: Ronald Richards | Apr 15, 2010 1:06:23 PM

Marc Shepherd, spam is a generic reply.

As usual, it is the political rhetoric that intrigues me.

"Some of his victims will spend longer than that in rehab," Doney said.

Is that true? If so, what does it mean? Doesn't it imply these victims were not addicted to anything before and would never be addicted if not for the doctor? How can the government know that? Is it possible that feeding the addiction on the streets was more harmful and a prescription addiction is far less harmful? If so, does that favor the legalization of some drugs?

But what the assertion really means is that we are supposed to think of the victims and nothing else, which is why the prison guard union in California is pushing for "Chelsea's Law and pushing it through now while empathetic minds are in mourning and debate is rude. The presumption of innocence is the sacrificial lamb in this propaganda. It is fairly easy to recognize Mr. Bill's propaganda, but this is far more cunning.

It is fascinating to watch. It's like 1984's Two Minutes of Hate.

Posted by: George | Apr 15, 2010 1:39:32 PM

I was thinking the same thing as Kent. As soon as I saw it was Judge Real, I wasn't optimistic for the results.

Posted by: da2b | Apr 15, 2010 3:10:55 PM

Only in the United States would one find a meaningful conversation about whether four years in prison is overly lenient. It is absurd. This is a huge term of years and should be the standard rather than the exception. Four years in -- The Doctor will have paid mightily for his choices.

Posted by: Brian Williams | Apr 15, 2010 3:22:49 PM

Only in the United States would one find a meaningful sentencing onversation about whether four years in prison is overly lenient. It is absurd. This is a huge term of years and should be acknowledged as such. Four years in -- The Doctor will have paid mightily for his choices. Research Librarian | Lawyer | Blogger

Posted by: Brian Williams | Apr 15, 2010 3:26:26 PM

Relative to other federal sentences, it may be lenient, but that implicates federal sentencing as a whole rather than this one defendant. I agree with da2b, only in America is this not debated as too harsh of a sentence for a first time offender whose career is ruined and who forces years of community service. The real question is not how long he serves, but where he serves it. Will he go where Michael Vick was housed (Leavenworth) or to a CCA "warehouse?" Very unlikely. Instead, he's likely to go to a minimum security facility so the "prison" sentence won't exactly be similar to what a typical prisoner would face. Place is often more important than time when it comes to the harshness/leniency of a sentence, but I rarely see it discussed outside of circles like these.

Posted by: David | Apr 15, 2010 4:34:56 PM

The reasonableness of sentence, if appealed by government, is fact-specific and correlated with validity of 3553(c) "reasons.' The licensure rationale inheres in the penalty by operation of law; the scope of doctor -generated oxy scripts--in parts of Miami--represents the standard treatment protocol, clinic, office, difference? The weight given to retributivist versus utilitarian purposes of punishment is discretionary. But here, was it reasonable?

Posted by: benson weintraub | Apr 15, 2010 9:08:45 PM

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