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The time has come for health care criminal law reform
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 Lawrence H. Brenner |
 B. Sonny Bal |
Over the past 4 decades, one of the most popular themes in American political life has been “getting tough on crime.” Indeed, political careers have been launched on this theme, and others have waned on charges of a politician being “soft on crime.” Today, as the news media increasingly shed light on the pervasive corruption, nepotism and insider dealing among those in power — and as our institutions have lost credibility in the public eye — the appetite for getting tough on crime in general and white-collar crime in particular, has increased.
While apprehending criminals is, of course, a laudable goal the criminal justice system and its sociopolitical setting in this country are far more nuanced than political sloganeering may suggest. As an historical example that may be familiar to us, the famous American surgeon William Halstead was a known cocaine and morphine addict. Were he alive today, and prosecuted by the federal government, he would likely be serving a long prison sentence, particularly if he were caught with crack, rather than powered cocaine. The reason is that criminal statutes punish drug possession differently depending on the drug in question; crack use draws more severe punishment that cocaine use in the United States.
Incarceration rates
Since 1970 America has evolved into a country that stands alone among wealthy nations in a remarkably high incarceration rate of its citizens. As The Economist noted in a July 22, 2010 article, “No other rich country is nearly as punitive as the Land of the Free.” The United States incarcerates five times as many criminal defendants as Britain, nine times as many as Germany, and 12 times as many as Japan. The rate of incarceration in the United States has quadrupled since 1970. The number of people in prison — 2.3 million individuals — now exceeds the population of 15 states.
This trend towards increasing incarceration rates is particularly disturbing for defendants who are indicted by federal prosecutors, and it gathered steam when Congress passed the Sentencing Reform Act and adopted the Federal Sentencing Guidelines in the mid 1980s. The act and guidelines essentially divested federal judges of the broad discretion to impose sentences based on the individual characteristics and past history of criminal defendants. While this discretion was technically reinstated in the 2005 United States Supreme Court case United States v Booker, there is still a strong judicial inclination to defer to the Guidelines in imposing sentences on defendants.
Evolution of guidelines
As background, in United States v Booker, defendant Fanfan was arrested by federal agents, who discovered that he possessed both cocaine and crack. The statutory minimum sentence was 78 months in prison, but the sentencing judge found that by a preponderance of the evidence, the defendant was a leader, manager, or supervisor in a criminal conspiracy; that interpretation meant a 10-year increase in prison time over what the jury found. The judge imposed the statutory minimum of 78 months, in accordance to the guidelines, and the government appealed for the longer sentence. The U.S. Supreme Court, in a split-majority ruling, struck down a part of the Federal Sentencing Guidelines, thereby allowing district judges a wider range of sentencing factors which appellate courts could review for “reasonableness,” which the court left undefined.
As further background, Congress passed the Sentencing Reform Act in 1984, which replaced the traditional latitude enjoyed by federal judges in crafting criminal sentences with a strict “sentencing guideline system.” The actual guidelines were crafted by the United States Sentencing Commission, an independent body of experts that put forward “policy statements” and sentencing ranges for various offenses. The policy statements served as foundations for particular sentencing approaches. Congress remained involved in sentencing over the years by, among other things, mandating certain minimum sentences for particular offenses. Over time, attorneys involved in the sentencing process developed the philosophy that “the federal criminal system punishes the defendant, not the offense.”
The constitutionality of the Sentencing Reform Act scheme was repeatedly challenged throughout the 1990s and the 2000s. In the Apprendi decision (2001) the United States Supreme Court ruled that certain facts which increased sentences under the guidelines scheme had to be determined by a jury, rather than a judge. Subsequent decisions by the court refined and applied this ruling, and later challenges culminated in the Booker decision in 2005. In the Booker case the court ruled sweepingly that the sentencing guidelines were to be treated as merely “advisory” by federal judges. Judges need no longer treat the “guideline range” as mandatory. In the years since Booker was decided, however, sentences for federal criminal defendants have not deviated a great deal from the previously mandatory guidelines ranges.
Relevance to health care
The overall trend towards harsher federal sentences is significant for health care providers; since the False Claims Act, Medicare and Medicaid prosecutions all fall within the federal jurisdiction. It is, furthermore, a disturbing phenomenon for at least two reasons. First, criminalizing business activities is an ambiguous process, since no bright light separates criminal from noncriminal conduct. Can a physician or surgeon ever be certain that lease arrangements, contractual provisions, or the receipt of research grants cross a line that will subject him or her to federal indictment? Even federal appellate courts have struggled to define business activity that is criminal.
Second, federal judges tend to be less forgiving in white-collar crimes, where there may be an absence of life hardships to present to the court that mitigate the defendant’s criminal conduct. Physicians and surgeons, in this era of increased scrutiny, also need to be mindful that less than 15% of federal defendants receive probation and that the average length of incarceration has continued to rise over time.
While there has been another political movement in America to limit government power, the federal criminal justice system may represent the most draconian application of authority over citizens in contemporary life. As The Economist further noted, “America needs fewer and clearer laws, so that citizens do not need a law degree to stay out of jail. Acts that can be regulated should not be criminalized. Prosecutors’ powers should be clipped; most white collar suspects are not Al Capone, and should not be treated as if they were.”
It seems odd that a country that rejoices in limiting the power of the state should give so many draconian powers to its government, yet for the past 40 years American lawmakers have generally regarded selling voters the idea of locking up fewer people as political suicide.
In closing, the medical community has persistently sought “malpractice reform,” focusing on civil judgments where the defendant provider is almost always indemnified by an insurance company. Perhaps a time has come for the medical community to demand reforms in the criminal justice system that result in clearer definitions of criminal conduct and sentences that are compatible with the most basic principles of fairness and justice.
Reference:
- Rough Justice: America locks up too many people, some for acts that should not even be criminal. The Economist. July 22, 2010. Accessed online Oct. 19, 2010.
- B. Sonny Bal, MD, JD, MBA, is associate professor of hip and knee replacement in the department of orthopedic surgery, University of Missouri School of Medicine.
- Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California and practices in Chapel Hill, N.C. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com.
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