Full opinion text
JACK B. WEINSTEIN, Senior District Judge: Table of Contents I. Introduction..............................................................419 II. Facts....................................................................421 A. Lior Hanuka — Genesis in Appropriate Medical Prescriptions...............421 i. Personal History.................................................421 ii. Accident and Treatment...........................................422 iii. Addiction, Crime, and Arrest.......................................423 iv. Post-Arrest Rehabilitation.........................................424 B. Andrew Ilayayev — Genesis in Illegal Social Use...........................424 i. Personal History.................................................424 ii. History of Drug Use..............................................425 iii. Original Offense and Sentence......................................425 iv. Charged Violations of Supervised Release............................425 v. Plea and Continuing Drug Use.....................................427 III. Oxycodone and OxyContin — Properties and Effects ...........................427 TV. Prevalence of Oxycodone and OxyContin Abuse...............................429 A. Background Contributors to Abuse......................................429 B. Oxycodone and OxyContin Abuse: Who, Where, and Impact................430 C. Sources of Illicit Oxycodone and OxyContin..............................433 V.The Medical Community’s Obligations in Relation to Oxycodone and OxyContin Prescribing ..................................................434 A. Pressures Placed on Physicians in Prescribing............................434 B. Physicians’ Obligations in Prescribing ...................................436 C. Physicians Who Fail to Satisfy Their Obligations..........................441 D. Legal Consequences for Physicians Who Fail to Satisfy Their Obligations.........................................................443 E. Pressures Placed on Pharmacists in Filling Prescriptions...................444 F. Pharmacists’ Legal Obligations in Filling Prescriptions ....................444 G. Medical Community’s Response to Addiction.............................446 VI. Government Regulation of Oxycodone and OxyContin Prescribing...............446 A. Federal Government Regulation........................................446 B. State Government Regulation ..........................................447 VII. Sentences Imposed........................................................449 A. Sentencing Rules.....................................................449 B. Hanuka’s Sentence....................................................449 C. Ilayayev’s Sentence...................................................451 VIH. Conclusion...............................................................452 I. Introduction These two sentences raise the profoundly troubling question of how to sentence young defendants whose addiction lead to violation of criminal drug laws. One of the defendants — Lior Hanuka — fell into addiction after a drug was prescribed lawfully, and with medical justification, for pain caused by injuries in an auto accident. The other — -Andrew Ilayayev — used drugs for personal gratification and pleasure, ^ abuse turning ^ addiction. For Hanuka, the drug was oxycodone, a powerful medication used to alleviate severe pain, to provide succor to those suffering physical distress as a result of disease or trauma. It is much abused. See, e.g., Theodore J. Cicero et al., Trends in Abuse of OxyContin and Other Opioid Analgesics in the Unites States: 2002-2004, 6 J. Pain 662 (2005). For Ilayayev, the drugs are many, including ecstasy, POP, Special K, cocaine, and heroin. These drugs are exclusively recreational, having no recognized medical purpose. They are much abused. See Nat’l Drug Intelligence Ctr., U.S. Dep’t of Justice, National Drug Threat Assessment 2010, 32-35, 40-41 (2010) [hereinafter NDIC 2010 Report]. This memorandum and order concentrates on oxycodone because its use illustrates the need for cooperation between the medical and legal professions to avoid abuse and addiction. Abuse of recreational, non-prescription drugs like ecstasy, PCP, and Special K usually requires cooperation between the law and medicine after addiction and criminal conduct has resulted; cases related to those drugs and the need for curative treatment are usually dealt with in sentencing and violations of probation and supervised release; dangers of those drugs are well known to courts and hospitals. Modern medicine has utilized pain relieving drugs and anesthesia with great benefit to mankind. Cf., e.g., David McCullough, The Greater Journey: Americans in Paris 133 (2011) (describing the first operation performed in which ether was used as an anesthetic). Sometimes physicians’ experiments in healing have gone awry as substances they utilized have been abused. Cf, e.g., Howard Markel, An Anatomy of Addiction: Sigmund Freud, William Hoisted, and the Miracle Drug Cocaine 90, 97-98 (2011) (doctors Sigmund Freud and William Halsted used, and mistakenly concluded that cocaine is a useful psychotropic drug, but only the latter became addicted). Large numbers of new drugs developed and manufactured for non-medical purposes have been abused by those seeking pleasure, to their own severe detriment and that of society. Cf, e.g., Abby Goodnough & Katie Zezima, An Alarming New Stimulant, Sold Legally in Many States, N.Y. Times, July 17, 2011, at A1 (describing the rise of “bath salts” as a drug of abuse, with startling permanent adverse consequences on the mind). Such substances as cocaine were widely used in this country in soft drinks, and morphine and its derivatives were available in over-the-counter medications. Markel, supra, at 58-59. With the passage of the Federal Controlled Substances Act (“CSA”) in 1970, and earlier legislation, distribution of narcotics came under closer federal regulation. No longer could manufacturers of consumer products incorporate those drugs in their products and sell them freely in grocery stores and pharmacies throughout the nation. The criminal law as a method of control was enhanced. For narcotics with recognized medical uses, licensed physicians and pharmacists now stood as gatekeepers, acting as their sole authorized source. The drug abused by Hanuka, oxycodone, is among controlled substances with a recognized medical use. Patients may obtain it legitimately only with a valid prescription from a properly-licensed physician filled through a licensed pharmacy. The drugs abused by Ilayayev are also closely regulated under the CSA. In contrast to oxycodone, however, the medical community plays little or no role in controlling access to such illegal drugs because they lack approved medical uses. Criminal law enforced by federal and state government acts as the primary means to control their distribution. The circumstances of Hanuka’s case emphasize the importance of cooperation between the medical community and law enforcement in controlling abuse of dangerous but useful substances such as narcotic painkillers. Physicians’ and pharmacists’ combined ethical and legal obligations in regard to distributing such pharmaceuticals can provide substantial protection against their abuse. Nevertheless, the physicians and pharmacists may themselves contribute to abuse, necessitating intervention by law enforcement. Although complicated, a working relationship between the medical community and law enforcement is essential to realizing the potential benefit that these substances hold for patients suffering from severe or chronic pain while avoiding their deleterious effects on society from rampant abuse and addiction. No such relationship between law and medicine geared toward preventing abuse exists for the drugs involved in Ilayayev’s case. Prevention is within the ambit of law enforcement, with less direct involvement from medical professionals. The medical profession usually becomes involved with law enforcement only at the abuse and treatment stages. This relationship is exemplified by the recent rise in specialized drug treatment courts such as special parts for treatment, like the STAR Court in the Federal District Court for the Eastern District of New York, in which Uayayev was given the opportunity to participate, but from which he did not benefit. II. Facts A. Lior Hanuka — Genesis in Appropriate Medical Prescriptions i. Personal History Hanuka was born in Brooklyn on February 6, 1987. Presentence Investigation Report of Lior Hanuka (“Hanuka PSR”) ¶ 35. His parents are married and reside in Staten Island, where his father co-owns a successful contracting business, and his mother operates a beauty salon. Id.; Tr. of Sent’g of Lior Hanuka 10:4-6 (June 21, 2011) (“Hanuka Tr.”). Twenty-four years old, he is the youngest of three brothers. One brother, who co-owns the contracting business with their father, Hanuka PSR ¶ 35, lives in Staten Island with his wife and two children. Id. ¶ 36. The other lives in an apartment in their parents’ home and owns a gold and jewelry store in Brooklyn. Id. Hanuka is himself unmarried and has no children. Id. ¶ 38. Hanuka was raised in a favorable environment unlike those commonly associated with deprived drug defendants. See, e.g., United States v. Bannister, 786 F.Supp.2d 617, 2011 WL 1361539 (E.D.N.Y. Apr. 8, 2011). He had a middle-class upbringing in Staten Island, where he resided until 2010, and was raised by hard-working parents who were married and lived together in one home. Id. ¶¶ 37, 39. There was apparently no physical, emotional, or substance abuse of any kind in that home. Id. Hanuka’s own lack of substance abuse during his adolescent years is attributed by him to the influence of his older brothers, who he says would “never allow it.” Id. ¶ 46. His relationship with his family was, and still is, close, id. ¶ 37; for this, he considers himself “lucky,” id. Deciding to go to work in a cellular telephone business at the time owned by his brother, Hanuka withdrew from high school when he was sixteen and in the tenth grade. Id. ¶¶ 50, 54. Permission from his parents to withdraw was conditioned on his later obtaining a GED, id., which he did in 2005, id. ¶ 51. He worked in the cell phone business for several years. In 2007, he began working on and off for his family’s contracting company, where his responsibilities included managing the company’s finances. Id. ¶ 53. Approximately two years after passing his GED exam in 2007 he enrolled in the College of Staten Island. Id. ¶ 49. Between 2007 and 2008, he completed fifteen credits. Id. ii. Accident and Treatment In 2005, when Hanuka was eighteen years old, he was involved in a serious car accident injuring his back. Hanuka PSR ¶ 44. Reduced pain from that injury persists. Hanuka Tr. 16:13-20 (explaining that his back still produces a burning sensation if he sits too long). Eventually Hanuka was driven to seek medical relief. He consulted with his regular physician, a general practitioner in Staten Island, in mid-2007. See id. ¶ 8. This physician did not prescribe the oxycodone he would eventually take for his pain. Hanuka Tr. 21:13-22. Instead, the doctor referred Hanuka to a pain specialist who prescribed oxycodone. Id.; id. at 19:20-21. Hanuka never returned to his regular physician for additional consultations or treatment, id. 21:16-22, and this doctor never followed up on the injury or on any subsequent treatment. After the first referral, Hanuka began to receive treatment from several physicians. See Hanuka PSR ¶¶7-10; Hanuka Tr. 20:2-1; id. at 24:13-15. The Probation Department’s presentence report details government interviews with two of those practitioners. See Hanuka PSR ¶¶ 7-10. What is obvious is that Hanuka began to receive simultaneous treatment for his back pain in the form of prescriptions for oxycodone from more than one medical office. See Hanuka PSR ¶¶ 7-10; see also Hanuka Tr. 20:14-17 (“Q: Well, did you tell the new doctors that gave you the additional prescriptions that you were under treatment from the first doctor? A: No, I did not, your Honor.”); id. at 24:13-15 (statement of probation officer) (“The defendant saw several physicians and a physician’s assistant to obtain prescriptions during the time period charged.... ”). One physician interviewed by the government first saw Hanuka in late 2007 and continued to provide treatment for back pain until June 2010. Hanuka PSR ¶ 8. Before prescribing any medication, this physician sent Hanuka for an x-ray and MRI. Id.; Hanuka Tr. 15:9-10. The results of the MRI confirmed the existence of Hanuka’s back injury. Hanuka Tr. 15:10-12. Presumably satisfied that Hanuka’s pain was legitimate, the physician then prescribed oxycodone. See Hanuka PSR ¶ 8. On subsequent visits to this doctor’s office, Hanuka was required to submit to a urinalysis test as a prerequisite to receiving an additional oxycodone prescription. Id. The purpose of the urinalysis was to determine whether the oxycodone level in Hanuka’s blood was within a “therapeutic range” and did not suggest possible abuse of the drug. Id. Hanuka reports that he complied with the tests until his last visit, in June 2010, when he refused to submit to them. See id. ¶¶ 8-9. The physician confirmed that four oxycodone prescriptions for a total of 720 thirty milligram pills were issued to Hanuka between February 2, 2010, and May 5, 2010. Id. ¶ 9. No confirmation was provided, however, for possible prescriptions issued before February 2, 2010. The second physician interviewed by the government treated Hanuka for back pain from October 2008 until May 2010. Id. ¶ 10. This doctor did not require Hanuka to undergo an x-ray or MRI before prescribing oxycodone, instead relying on the results of the prior MRI to confirm the back injury. Id. Hanuka received his prescriptions for oxycodone from this second physician on a regular schedule. Every ninety days the physician would see Hanuka for a personal consultation, id. 21:4-6, but he would issue oxycodone prescriptions to the patient on a monthly basis. Id. 20:22-24; id. 21:8-10. Hanuka claims that the prescriptions would always be waiting for him to be picked up at the secretary’s desk in the physician’s office. Id. 21:8-10. The physician claims to have had a policy that required patients to pick up each prescription in person and to provide proof of identity. Hanuka PSR ¶ 10. Hanuka’s and the physician’s respective claims are not necessarily incompatible. The last time Hanuka came to collect a prescription from the physician’s office was in May 2010. Id. In total, this physician issued sixteen prescriptions for Roxicodone, a brand name formulation of oxycodone, equating to 2,800 thirty milligram pills. Id. According to Hanuka, none of physicians he visited warned him of the addictive qualities of oxycodone. See 20:18-21:15. Nor was he told of the dangers by the pharmacists who filled his prescriptions. Id. at 23:18-23. The pharmacists would call the prescribing physician to verify that Hanuka’s prescription was valid, but do nothing more. Id. The insert that came with each prescription did, however, provide warning of the dangers of the medication. Id. at 23:24-24:2. iii. Addiction, Crime, and Arrest At first, Hanuka took the prescribed dosage of six pills per day for his back pain. Hanuka PSR ¶ 47. As time went on and his brain grew accustomed to the medication, the prescribed dosage became less and less effective, prompting him to begin taking, without a physician’s advice, twice the number of prescribed pills to achieve the same degree of relief. See id. With this self-medicated increase in daily dosage, Hanuka’s addiction to oxycodone began. Id. The effects of withdrawal were acute: “[L]et’s say you wake up one morning and you don’t take [a pill], your body goes through physical withdrawal and your legs shake, [you get] the sweats. It’s basically like pneumonia.” Hanuka Tr. 20:7-8. And, as his addiction progressed, avoiding withdrawal became more and more difficult. Said Hanuka, “[fin-stead of one pill at a time, [I] needed two pills at a time, then three pills at a time, then four pills at a time, and if [I] didn’t have it [I] got sick [and] all’s [I] want to do is get another pill to feel better.” Id. at 20:9-13. Eventually, he was under the constant influence of the drug, moving about his days in a drug-addled haze. See id. at 17:22-24 (“I was high twenty-four hours a day seven days a week. I was just in a fog, in a daze.”). The drug took control of his life. Predictably it began to unravel. Hanuka PSR ¶ 47; Hanuka Tr. 17:8-10. In 2008, he dropped out of school, withdrawing from all classes at the College of Staten Island. Hanuka PSR ¶ 49; see also Hanuka Tr. 17:9. Worse, he began to support his expensive addiction by selling oxycodone pills, the conduct underlying the present offense. Hanuka Tr. 17:17-19 (“Q: Well, you were selling these drugs, weren’t you? A: Yes.”). The quantity of pills Hanuka needed to both take and to sell were acquired by visiting multiple physicians during the same time period and receiving prescriptions from each. Hanuka PSR ¶ 46; see also Hanuka PSR ¶¶ 7-10. These doctors were unaware, and they were not told by Hanuka, that they were not the only physician prescribing oxycodone at the time. Hanuka Tr. 20:14-17. The only indication that any physician had that their patient may have been abusing the drug came in June 2010, on his last visit to a physician who required a urinalysis test before issuing prescriptions. Id. at 24:17-23. During that visit, Hanuka appeared to be “high” and refused to submit to the test, claiming that the physician knew that it would come back positive for oxycodone use. Hanuka PSR ¶ 9. He was escorted out of the office by several patients who were in the lobby and overheard him make “a scene” trying to convince the physician to give him a prescription. Id. On June 3, 2010, Hanuka self-surrendered in New York at the offices of the U.S. Drug Enforcement Agency (DEA), which had been conducting an investigation of his activities. Id. ¶ 12. He was charged with possessing with the intent to distribute oxycodone. Id. He pleaded guilty. iv. Post-Arrest Rehabilitation In 2008, Hanuka had begun a serious relationship with a young woman, S. Id. ¶ 38. Their romance blossomed; they were engaged to be married. Id. Hanuka describes Ms. S. as having been the “best thing that ever happened” to him. Id. His mother describes their relationship as being “beautiful.” Id. ¶ 40. After Hanuka’s April 2010 arrest and release, Ms. S. convinced him to move to West Palm Beach, Florida. Id. ¶ 38. She believed that relocation would give them an opportunity to have a “normal life.” Id. The move appears to have had the intended effect on Hanuka. Starting at approximately the time they decided to move, Hanuka was attempting to overcome his addiction on his own. Hanuka Tr. 10:22. As subsequent events such as his June 2010 encounter with the physician show, he was unsuccessful. To get the help he needed, on November 9, 2010, he entered a substance abuse treatment program at the Palm Beach Treatment Center. Hanuka PSR ¶ 47. Today, he remains on a methadone maintenance program administered by the Center, which will be shortly completed. Id. He claims that he last took oxycodone at the time of his guilty plea in September 2010. Id. On October 22, 2010, approximately a month before voluntarily entering the substance abuse treatment program, Hanuka found full-time employment as a salesman at a West Palm Beach car dealership. Id. ¶ 52. His tenure there, which continues, has been successful. In January 2011, he was the dealership’s top grossing salesman. Id. In the future, he hopes to become involved in the dealership’s finance department. Id. The owner submitted a letter to the court touting Hanuka’s dedication to his job, his punctuality, and other positive qualities; it offers the dealership’s “unwavering support.” Ct. Ex. 2. Hanuka continues on his path to rehabilitation even though his fiancée, who was instrumental in starting him in that direction, died in a car accident in November of 2010. Hanuka PSR ¶ 38. When Ms. S. was several hours late coming home, Hanuka headed in the direction of her last known location. Id. He arrived to find that she had been killed. Id. Hanuka continues to work sixty-hour weeks at the car dealership and to attend the substance abuse treatment program. Hanuka Tr. 11:5-6; id. at 11:25-12:2. In January 2012, he will begin attending Palm Beach State College, where he will take night classes working toward an Associate Degree in business. See Letter from Nitvhia Hanuka, defendant’s mother, to the Court (June 7, 2011). Hanuka was sentenced to non-incarcerative supervision and continuing drug treatment. See infra Part VI.B. B. Andrew Ilayayev — Genesis in Illegal Social Use i. Personal History Andrew Ilayayev was born on September 28, 1982 in Uzbekistan. Presentence Investigation Report of Andrew Ilayayev (“Ilayayev PSR”) ¶ 33. His mother and father were divorced the same year. Id. Along with his mother, two siblings, and maternal grandparents, he immigrated to the United States in 1992. Id. ¶ 35. His biological father does not maintain contact with, or provide financial support to, the family. Id. ¶¶33, 35. Welfare, food stamps, and housing assistance have helped the family since it arrived in the United States. Id. ¶ 35. Mother and children resided together with grandparents in Queens until 2000, when the family moved to its own apartment in Brooklyn. See Defendant’s Letter to the Court 2 (Sept. 11, 2006) (“Ilayayev Letter”). Ilayayev’s younger sibling, Olga, continued to live with her grandparents during the week because the grandparents’ apartment was closer to her school. Id. ¶ 34. His older sibling, Oleg, is currently incarcerated in Ohio on a ten-year sentence for drug trafficking. Id. Ilayayev attended a private sectarian high school for two years. Id. ¶ 43. He then transferred to James Madison High School, a large public school in Brooklyn. Id. After graduating, he enrolled in, and attended, Kingsboro Community College for one year. Id. From 2000 until the time of his original arrest in 2005, Ilayayev held several full- and part-time jobs. See id. ¶ 45-51. They included: promoter for a club, id. ¶ 50; bicycle messenger, id. ¶ 49; caterer, id. ¶ 48; food preparer in a delicatessen, id. ¶ 47; driver’s assistant for Federal Express, id. ¶ 46; and sales associate at Macy’s, id. ¶ 44. He was last employed as a barber in Brooklyn. Violation of Supervised Release Report of Andrew Ilayayev at 5 (“Violation Report”). ii.History of Drug Use Ilayayev began using marijuana at age sixteen, after enrolling in James Madison High School. Ilayayev PSR ¶ 42; Ilayayev Letter at 6. He used that drug daily until, at age seventeen, he turned to more powerful illegal drugs. Ilayayev PSR ¶ 42. He used LSD from age seventeen until twenty, id., ketamine, a hallucinogenic drug commonly known as “Special K,” daily from age nineteen until twenty-one, id., and from nineteen until his original arrest, he used MDMA extensively, id. He also tried cocaine on several occasions. Id. When twenty-one, he began to use phencyclidine, PCP. Id. He would occasionally use Xanax, a prescription anti-anxiety medication, to help him sleep. Id. iii.Original Offense and Sentence Ilayayev was first arrested on August 31, 2005 by a DEA Task Force that had been conducting an undercover investigation of his activities since July 2003. Id. ¶¶ 2-5. The Force had used a confidential witness to purchase MDMA pills, or ecstasy, from Ilayayev. Id. ¶ 2. In total, Ilayayev sold or attempted to sell over 5,000 MDMA pills to the confidential witness, including 3,000 on the day of his arrest. Id. ¶¶ 3, 5. On November 16, 2005, Ilayayev pleaded guilty to one count of a nine-count indictment, id. ¶ 1, alleging that between August 2003 and August 31, 2005, Ilayayev, together with others, conspired to distribute and possess with intent to distribute MDMA, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C). He was sentenced to the few days of time served, and the sentence was stayed to permit the Probation Department to make arrangements for him to be transferred from jail to an inpatient drug treatment facility. Violation Report at 3. In addition, five years supervised release was imposed, with the special condition that he participates in a drug and alcohol treatment program as directed by the Probation Department. Id. iv.Charged Violations of Supervised Release The Probation Department first provided Ilayayev with the opportunity to participate in the district’s STAR Court, supervised intensively by the late United States District Court Judge Charles P. Sifton. Id; see also Charles P. Sifton & Jack B. Weinstein, Report on a Proposed Intensive Postr-Sentence Drug Supervision Program for the Eastern District of New York (2006) (STAR Program). Because of his unabated drug addiction and other non-compliant behavior, he was discharged from this program. Violation Report at 4. On November 19, 2008, his conditions of supervised release were modified by Judge Sifton to include ninety days home confinement, which, after several incidents of noncompliance, he successfully completed. Id at 4. Ilayayev was subsequently charged with multiple violations of the terms of his supervised release. Chronologically, the first charged violation occurred on April 1, 2010, when Ilayayev was arrested by the New York Police Department (“NYPD”) and charged with Intent to Obtain Transportation without Paying, in violation of N.Y. Penal Law 165.15. Id at 7. He attempted to gain entry into a subway station without paying the fare. Id A second charged violation occurred on July 7, 2010, when Ilayayev was arrested by the NYPD and charged with Criminal Possession of Narcotic Drug 4th Degree, in violation of N.Y. Penal Law 220.09; Criminal Possession Controlled Substance 7th Degree, in violation of N.Y. Penal Law 220.03; and Criminal Trespass 2nd Degree, in violation of N.Y. Penal Law 140.15. Id at 6. According to the arrest report, Ilayayev was observed with others in possession of hypodermic needles and a suspected narcotic. Id Ilayayev claims that he had just happened upon friends of his and was speaking with them when the NYPD pulled up in a car, got out, and frisked him and his friends for no reason. Id He says that as the time of his arrest he was standing on the sidewalk inside a small fenced area. Id The officers arrested him for trespass and he was arraigned in Kings County Criminal Court. Id This charge was consolidated with the April 1 charge. Id On July 15, 2010, he pleaded guilty to disorderly conduct in satisfaction of both charges. Id He was sentenced to a conditional discharge and ordered to perform two days community service, which he completed. Id The third charged violation occurred on September 15, 2010, when Ilayayev was arrested by the NYPD and charged with Criminal Sale of a Controlled Substance 7th Degree, in violation of N.Y. Penal Law 220.03. Id at 4. The circumstances surrounding that arrest, according to Ilayayev, are as follows: On the day of his arrest, he claims to have been coming off the bus on his way home from work at the barber shop where he is employed. Id As he turned the corner, he claims then to have walked directly into the middle of a police “drug sweep.” Id One of the arresting NYPD officers from the 61st Precinct recognized him from his former graffiti days when he was known as “DOTS” (his graffiti tag name). Id He claims that the NYPD officer threw him up against the wall and began to frisk him. Id At this point, he claims he told the officer that he had no drugs on his person and that, because he was on federal supervision, he wanted no problems. Id During the frisk, the arresting officer found a suspected drug on Ilayayev’s person. The officer identified the substance as PCP, but later toxicology reports indicated that it was Special K. Id at 5. According to the Probation Department, this charge was dismissed because of the officer’s misidentification of the drug. Tr. of Violation Sent’g of Andrew Ilayayev 5:7-10 (June 30, 2011) (“Ilayayev Tr.”). The fourth and final charged violation occurred as a result of Ilayayev’s failure to inform the Probation Department of his September 15 arrest within seventy-two hours of its occurrence, as required by the conditions of his supervised release. Id. Although the arrest occurred on September 15, 2010, Ilayayev did not inform the Probation Department of it until he was instructed to report on October 10, 2010. Id. v. Plea and Continuing Drug Use On March 28, 2011, Ilayayev pleaded guilty before this court on Charges Two and Four of the four-charge violation detailed above, [dkt. no. 48]. He was ordered to enter outpatient drug treatment from that time until the date of his sentence for supervised release violations. Ilayayev Tr. 2:14-16. He has, for the most part, attended scheduled treatment sessions. Id. at 3:14-16. The Probation Department reports that he has had continuing difficulty refraining from drug use. Specifically, the Probation Department reports that Ilayayev complained of chest pains and stomach pains, and was sweating profusely, during his May 4, 2011 treatment session. Id. at 3:16-20. The registered nurse present at the time found that he had an elevated blood pressure and shallow breathing. Id. at 3:21-23. He told the nurse that he had taken Special K earlier that day, which he later admitted in court. Id. at 3:23-25; id. at 6:22-7:4. The nurse called 911, and he was transported by ambulance to Coney Island Hospital, where he was kept overnight for observation. Id. at 3:25-4:2. From the evidence at the sentencing hearing the court found that Ilayayev was unable to control or cure his drug addiction on an outpatient basis. See Part VII.C, infra, for the sentence imposed. III. Oxycodone and OxyContin — Properties and Effects Oxycodone belongs to a class of drugs called opiate analgesics. Oxycodone: MedlinePlus Drug Information, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ druginfo/meds/a682132.html (last visited Aug. 4, 2011). Like morphine, with which it shares a similar chemical composition, U.S. Gov’t Accountability Office, GAO-04-110, Prescription Drugs: OxyContin Abuse and Diversion and Efforts to Address the Problem 8 (2003) [hereinafter GAO, Prescription Drugs], oxycodone is used in its pure form predominately to treat “acute or ... breakthrough pain,” Eija Kalso, Oxycodone, 29 J. Pain & Symptom Management 47, 47 (2005). Although their chemical compositions are similar, some studies have shown that oxycodone is twice as powerful as morphine in effect. See GAO, Prescription Drugs, supra, at 29 (citing G.B. Curtis et al., Relative Potency of Controlledr-Release Oxycodone and Morphine in a Postoperative Pain Model, 55 Eur. J. Clinical Pharmacology 425 (1999)); Kalso, supra, at 48 (citing Eija Kalso, Antinociceptive Effects and Central Nervous System Depression Caused by Oxycodone and Morphine in Rats, 70 Pharmacological Toxicology 125 (1992)). This drug operates as a painkiller by attaching to “specific proteins ... found in the brain, spinal cord, and gastrointestinal tract” and “blocking] the perception of pain.” Nat’l Inst, on Drug Abuse, U.S. Dep’t of Health & Human Servs., Research Report Series, Prescription Drugs: Abuse & Addiction 2 (2001). In addition to its painkilling effects, it can also “induce euphoria by affecting the brain regions that mediate what we perceive as pleasure.” Id. Oxycodone can be taken in multiple ways besides orally in pill form, such as intravenously (through an I.V.), intramuscularly (through a hypodermic needle), and intranasally (through the nose). See Kalso, supra, at 47. Today, oxycodone is often combined with other, non-opioid painkillers such as acetaminophen, aspirin, and ibuprofen. MedlinePlus, supra (listing examples). Designed to release its oxycodone slowly, over an extended period of time, a single dose of OxyContin can provide pain relief for up to twenty-four hours. Leonard J. Paulozzi, Opioid Analgesic Involvement in Drug Abuse Deaths in American Metropolitan Areas, 96 Am. J. Pub. Health 1755, 1755 (2006). Significantly, in order to facilitate its long-acting effects, OxyContin contains a substantially higher concentration of oxycodone than other oxycodonecontaining pain medications. GAO, Prescription Drugs, supra, at 8-9; id. at 9 n. 14 (“For a 12-hour dosing period, one OxyContin tablet replaces two Percodan or Tylox tablets, and one OxyContin tablet contains twice as much oxycodone as one of the other tablets.”); see also McCauley v. Purdue Pharma, L.P., 331 F.Supp.2d 449, 452 (W.D.Va.2004) (“OxyContin’s primary distinctiveness from other oxycodone-based analgesics is that its oxycodone is delivered via a controlled-release formulation [and] [a] corollary to this feature is that each tablet of OxyContin contains more milligrams of active oxycodone than does a single table of other opiate pain medications.”). That higher concentration causes OxyContin to be the most likely of these drugs to be abused. GAO, Prescription Drugs, supra, at 8-9; see also David L. Robinson, Note, Bridging the Gaps: Improved Legislation to Prohibit the Abuse of Prescription Drugs in Virginia, 9 App. J.L. 281, 284 (2010) (“The purity of the highly-concentrated narcotic oxycodone makes the OxyContin pill a prime target for abuse and diversion.”). Both oxycodone and OxyContin are classified under the CSA as Schedule II controlled substances, 21 C.F.R. § 1308.12(b)(1) (2010), because both have high potential for abuse and may lead to severe psychological or physical dependence, GAO, Prescription Drugs, supra, at 2; see also Rollin Gallagher, Opioids in Chronic Pain Management: Navigating the Clinical and Regulatory Challenges, 53 J. Fam. Prac. 23 (2004) (distinguishing between physical dependence and addiction, where addiction is characterized by “compulsive use of a drug, impaired control over drug use, craving, and continued use of a drug despite harm to self or others,” and physical dependence is characterized by “abstinence syndrome following discontinuation of therapy, substantial dose reduction, or administration of an opioid antagonist such as naloxone”). The DEA has described the physiological effects of oxycodone and OxyContin as being “similar to those of heroin.” GAO, Prescription Drugs, supra, at 2. Extended and continuous exposure to high levels of oxycodone can produce a tolerance to the drug’s pain relieving effects. See Nat’l Drug Intelligence Ctr., U.S. Dep’t of Justice, National Prescription Drug Threat Assessment 2009, 2 (2009) [hereinafter NDIC 2009 Report] (“Moreover, unintentional misuse or intentional abuse of [oxycodone] often produces feelings of euphoria, which can lead to increased levels of intentional abuse and subsequent tolerance, physical dependence, or addiction.” (footnotes omitted)). At the same time, users who are unable to take the amount necessary to overcome their tolerance, or who abruptly stop taking it altogether, go into withdrawal, or colloquially, they get “dope sick,” Khary K. Rigg et al., Prescription Drug Abuse & Diversion: Role of the Pain Clinic, 40 J. Drug Issues 681 (2010) (interviewing a methadone maintenance program client). Withdrawal symptoms can be severe, and include nausea, vomiting, diarrhea, loss of appetite, anxiety and depression, and elevated heart rates and breathing. MedlinePlus, supra (listing the many side effects of oxycodone withdrawal). Given the potential for developing a tolerance to the drug’s pain-relieving effects and the severity of withdrawal symptoms, oxycodone and OxyContin abuse has the potential to lead to overdose and death, as users ingest greater and greater quantities of the drugs at one time. GAO, Prescription Drugs, supra, at 2. IV. Prevalence of Oxycodone and Oxy-Contin Abuse A. Background Contributors to Abuse Humans have used opiates for various reasons, including treating pain, for millennia. See Kenneth L. Kirsh et al., His-tor'y of Opioids and Opiophobia, in Pain and Chemical Dependency 3 (Howard S. Smith & Steven D. Passik eds., 2008) (“It has been evidenced that opium was in use in Mesopotamia as early as 5,000 years go.”). Oxycodone, a synthetic drug derived from opium, was first used for medical purposes in Germany in 1917. Kalso, supra, at 47. Introduced to the market in 1996, OxyContin is a more recent invention. GAO, Prescription Drugs, supra, at 9. It was approved by the U.S. Food and Drug Administration in 1995 for the treatment of chronic moderate-to-severe pain lasting more than a few days. Id. at 8. In response to the World Health Organization’s 1986 declaration that “inadequate treatment of cancer and noncancer pain is a serious public health concern,” id at 1, physicians began changing their practice in treating chronic and severe pain. Beginning in the early 1990s, they were “much more proactive and aggressive [in their] use of opioid analgesics in treating pain in the general population.” Benedikt Fischer et al., Characterizing the “Awakening Elephant” of Prescription Opioid Misuse in North America: Epidemiology, Harms, Interventions, 35 Contemp. Drug Probs. 397, 404 (2008) (citation omitted). Aggressive treatment practices led to an increase in legitimate distribution of opioid medications. See id. at 402-04. From 2003 through 2007, the amount of prescription opioids distributed to retail registrants with the DEA increased fifty-two percent. NDIC 2010 Report, supra, at 42 (citation omitted); see also infra Part VI.A (explaining DEA regulations governing physicians and pharmacists authorized to prescribe and fill prescriptions for Schedule II drugs). Between 1997 and 2002, the medical use of oxycodone and oxycodonecontaining medications such as OxyContin increased over 380%. Fischer et al., supra, at 404. Oxycodone prescriptions increased significantly between the years 2003 and 2007. In 2003, U.S. physicians wrote approximately 1,083,000 prescriptions for oxycodone. NDIC 2009 Report, supra, at 5 tbl.l. By 2008, that number had increased approximately 780% to 8,472,000. Id. In 2002, several years after its introduction, OxyContin sales exceeded $1 billion from approximately 7 million prescriptions. GAO, Prescription Drugs, supra, at 9. These drastic increases in legitimate opioid prescriptions coincide with equally sharp increases in the abuse of oxycodone and OxyContin, suggesting that to some degree the two are related. See Fischer et al., supra, at 405-06. Bucking the trend of increasing opioid prescriptions, the number of OxyContin prescriptions issued by physicians has decreased from 7 million in 2002 to roughly 2 million in 2007. NDIC 2009 Report, supra, at 5 tbl.l. Despite this decrease, OxyContin still occupies a significant, and increasing, role in prescription drug abuse in the United States. But see Abby Goodnough & Katie Zezima, Drug Is Harder to Abuse, but Users Persevere, N.Y. Times, June 16, 2011, at A21 [hereinafter Goodnough & Zezima, Harder to Abuse ] (suggesting that a recent reformulation of Oxy-Contin has forced abusers to turn to other drugs). One study found that “[c]on-trolled-release oxycodone[, as exemplified by OxyContin,] has quickly surpassed other oxycodone formulations in terms of [emergency department mentions] and its use has increased at a greater rate than morphine or the rate of all opioids combined.” Asokumar Buvanendran et al., Increasing Patterns of Oxycodone Misuse: Findings from a National Database, 101 Anesthesiology 1136 (2004); see also Cicero et al., supra (“In this study, we report systematic data to indicate that opioid analgesic abuse has in fact increased among street and recreational drug users, with OxyContin and hydrocodone products the most frequently used.”). Much of OxyContin’s popularity among drug abusers can be attributed to its unique formulation. As mentioned above, it contains a significantly higher percentage of oxycodone than do other comparable medications. In an ironic twist, users may have inadvertently been alerted on how to release oxycodone from OxyContin’s controlled-release encapsulation by the drug’s own label, which warns users not to crush the pills because doing so could release toxic amounts of oxycodone. Sandra D. Comer & Judy B. Ashworth, The Growth of Prescription Opioid Abuse, in Pain and Chemical Dependency 21 (Howard K. Smith & Steven D. Passik eds., 2008). The powder from a crushed OxyContin pill can be snorted or combined with water and injected into the body, where the drug is rapidly absorbed in the user’s bloodstream, producing a euphoric effect. Leonard J. Paulozzi, Opioid Analgesic Involvement in Drug Abuse Deaths in American Metropolitan Areas, 96 An. J. Pub. Health 1755, 1756 (2006) (“Abusers have learned to ingest and inject pulverized OxyContin pills, defeating the controlled-release mechanism and releasing dangerous amounts of the drug within a short time.”). The FDA’s 2001 revisions to the OxyContin label retained the language warning against crushing the pills, but “included a [new] black box warning, the strongest warning an FDA-approved drug can carry, and specifically addressed areas of concern related to the opioid characteristics of oxycodone and its risk of abuse and diversion.” GAO, Prescription Drugs, supra, at app. II. B. Oxycodone and OxyContin Abuse: Who, Where, and Impact Reports of rampant OxyContin abuse began to surface in the media as early as 2000. Id. at 9. “These [warnings] first appeared in rural areas of some states, generally in the Appalachian region, and continued to spread to other rural areas and larger cities in several states. Rural communities in Maine, Kentucky, Ohio, Pennsylvania, Virginia, and West Virginia were reportedly being devastated by the abuse and diversion of OxyContin.” Id. Similar accounts continue to appear, implicating both OxyContin and oxycodone as culprits in community devastation. See Sabrina Tavernise, Ohio County Losing Its Young to Painkillers’ Grip, N.Y. Times, Apr. 19, 2011, at Al. Records of individuals arrested for illegal distribution of oxycodone and OxyContin indicate that the problem of prescription opioid abuse and addiction has not subsided. See, e.g., Edmund H. Mahony, Man Gets 5 Years for Illegal Oxycodone Sales, Hartford Courant, July 19, 2011, at B5. The pattern of abuse and addiction continues its spread to major urban centers throughout the country. One study addressing the issue of urban abuse of prescription opioids analyzed data from the Drug Abuse Warning Network (“DAWN”). DAWN is a database containing information relating to deaths in twenty-eight metropolitan areas in which drug abuse either caused or contributed to the death. Comer & Ashworth, supra, at 19. According to this study, reports of deaths involving oxycodone increased 727.8% from 72 reports to 596 reports from 197 to 2002. Paulozzi, supra, at 1755. It also found that the increase in reports of deaths related to prescription opioids, including oxycodone and OxyContin, was so drastic that, by 2001, they “displaced both heroin or morphine and cocaine as the most common type of [death from a] drug reported.” Id. Anecdotes in the media confirm that opioid abuse is a continuing problem in urban areas. See, e.g., Sale of Oxycodone Lands Man Behind Bars, BuffaloNews.com, http://www.buffalonews.com/city/policecourts/police-blotter/article494589.eee (last visited Aug. 4, 2011); Elissa Gootman, Staten Island Ice Cream Truck Sold Oxycodone Too, Officials Say, N.Y. Times, http://cityroom.blogs.nytimes.com/2011/03/ 17/staten-island-ice-cream-truck-sold-oxycodone-too-officials-say/ (last visited Aug. 4, 2011); Michael Wilson, Staten Island Doctor Charged in a Prescriptions Scheme, N.Y. Times, Nov. 16, 2010, at A31. One of the most disturbing aspects of the problem is its impact on children and teenagers. See Tavernise, supra. An article describing an exhaustive survey of the available research on prescription opioid abuse discusses the impact of illicit drug use on youths: In the Monitoring the Future (MTF) survey, the annual prevalence of narcotics use (other than heroin) more than doubled among 12th grades between 1992 and 2000. The annual prevalence of OxyContin (Oxycodone) abuse was 5% among students surveyed, reflecting a significant prevalence increase between 2002 and 2004 alone. A longitudinal survey of illicit and non-medical prescription drug use in a nationally representative sample of college students in the U.S. saw the prevalence of [prescription opioid] misuses (in the last 12 months) more than double between 1993 (3.1%) and 2001 (7.3%), with prevalence and increase levels for [prescription opioids] higher than any other prescription or illicit drug (except for marijuana) in 2003. These and similar other data [demonstrate] that “illicit pain reliever use ... disproportionately effects the young.” Fischer et al., supra, at 400. Some have suggested that such high levels of opioid abuse in youths is due to the perception among that age group that prescription opioids are relatively safe when compared to illicit street drugs such as cocaine. Richard A. Friedman, The Changing Face of Teenage Drug Abuse: The Trend Toward Prescription Drugs, 14 New Eng. J. Med. 1448 (2006) (“[Teenagers] often characterized their use of prescription drugs as ‘responsible,’ ‘controlled,’ or ‘safe.’ The growing popularity of prescription drugs also reflects the perception that these drugs are safer than street drugs.”). Another study speaks to which youths, specifically, are abusing prescription opioids; it “refute[s] popular suggestions that young [prescription opioid] users tend to be white-collar [and] middle-class,” showing instead that they are “mainly lower-income youth at high-risk for other illicit and/or poly-drug use.” Fischer et al., supra, at 401 (citing Hung-En Sung et ah, Nonmedical Use of Prescription Opioids Among Teenagers in the United States: Trends and Correlates, 37 J. Adolescent Health 44 (2005)). No matter who is affected and where concerns are most felt, there is little doubt that the problem of prescription opioid abuse is real and growing worse. See Kenneth L. Kirsh et al., supra, at 6 (“[I]t has become abundantly clear, regardless of what index one uses to gauge the problem, that the problem is on the rise.” (citations omitted)). As revealed by the National Survey on Drug Use and Health, new initiates in the nonmedical use of prescription opioids have “quadrupled, from an incidence of 573,000 in 1990 to an astounding 2.5 million in 2002.” Comer & Ash-worth, supra, at 19 (citation omitted). In 2004, the number of new users of opioid prescriptions exceeded even the number of new users of illicit drugs such as marijuana. Id. According to the National Drug Intelligence Center (“NDIC”), a department of the U.S. Department of Justice, in its report entitled National Drug Threat Assessment 2010, prescription pain relievers were used non-medically for the first time in 2008 by approximately 2.2 million people. NDIC 2010 Report, supra, at 3. The 2003 DAWN report showed that prescription opioid-related emergency room visits represented roughly seventeen percent of abuse-related admissions that year. Comer & Ashworth, supra, at 19. That report also indicated that the number of emergency department visits related to prescription opioid abuse increased from 42,857 visits in 1995 to 108,320 in 2002, or roughly 252%. Id. Law enforcement agencies are increasingly “reporting that pharmaceutical diversion and abuse pose the greatest drug threat to their areas, in part because of increases in associated crime and gang involvement.” NDIC 2010 Report, supra, at 42. There are some significant but under-recognized nuances to the problem of prescription opioid abuse and addiction. For one, multiple studies have shown that where therapy is administered correctly, addiction is unlikely to occur. See Ronald T. Libby, CATO Inst., Treating Doctors as Drug Dealers: The DEA’s War on Prescription Painkillers 8 (2005) (citing studies) (“In truth, however, the medical evidence overwhelmingly indicates that when administered properly, opioid therapy rarely, if ever, results in ‘accidental addiction’ or opioid abuse.”). Studies have shown that opioid addiction is generally associated with patients possessing a prior history of substance abuse, and that addiction does not occur accidentally in people with no such history and who follow their physicians’ advice. See, e.g., Deni Carise et al., Prescription OxyContin Abuse Among Patients Entering Addiction Treatment, 164 Am. J. Psychiatry 1750, 1755 (2007) (“Clearly, the pharmaceutical opioid problems of the individuals in this sample were part of a larger pattern of alcohol and other drug use — the problems were not ‘accidental,’ secondary to prescribed use for pain or other medical problems.”). Where deaths related to overdose on prescription opioids were examined, researchers have come to similar conclusions. See Libby, supra, at 6 (citing Cone et al., Oxycodone Involvement in Drug Abuse Deaths: A DAWN-Based Classification Scheme Applied to an Oxycodone Postmortem Database Containing over 1000 Cases, 27 J. Analytical Toxicology 57 (2003)) (discussing a study that examined 919 deaths related to oxycodone in twenty-three states over a three-year period that showed only twelve deaths resulting from oxycodone use alone, with the remainder resulting from “multiple drug poisoning”). The NDIC concluded in its 2010 report that “[prescription opioid overdose deaths are increasing, primarily because the decedents took the drugs nonmedically, other than as prescribed, or in combination with other drugs and/or alcohol.” NDIC 2010 Report, supra, at 42. To support that conclusion, the report cites to and discusses a study conducted by the Center for Disease Control (“CDC”): CDC reports that a high percentage of people who die from a prescription opioid poisoning have a history of substance abuse and that many have more than one [prescription opioid] in their system at the time of death. For example, a 2008 CDC study found that 82.3 percent of diversion-related unintentional overdose decedents in West Virginia in 2006 had a history of substance abuse and that 79.3 percent had used multiple substances that contributed to their deaths. In many instances, these individuals were simply using prescription opioids (either singularly or in combination with other CPDs, alcohol, or illicit drugs) to achieve a heroin-like euphoria, and many did not have a legitimate prescription for the drugs. Id. If nothing else, the results of this research suggest that addiction to oxycodone or OxyContin does not necessarily follow from their use in a treatment regimen properly overseen by a physician. C. Sources of Illicit Oxycodone and OxyContin The NDIC reports that prescription opioid diversion, in which the drugs are diverted from their intended medical use and into recreational use, occurs at multiple points along the supply chain: [Prescription drug] diversion typically involves individuals who doctor-shop and forge prescriptions, unscrupulous physicians who sell prescriptions to drug dealers or abusers, unscrupulous pharmacists who falsify records and subsequently sell the drugs, employees who steal from inventory, executives who falsify orders to cover illicit sales, individuals who commit burglaries or robberies of pharmacies, and individuals who purchase [prescription drugs] from rogue Internet pharmacies. [Prescription drug] diversion also involves the sharing or purchasing of drugs between family and friends or individual theft from family and friends. NDIC 2009 Report, supra, at 1 (footnote omitted). “Though much attention has been focused on the dishonest patient ‘doctor shopping’ and the rogue physician opening a ‘pill mill,’ data gathered from the DEA and analyzed by Joranson (2005) confirmed that much of the diversion of prescription opioids takes place at the level of the pharmacy in the form of burglaries, robberies, and employee and customer theft.” Comer & Ashworth, supra, at 22 (citing David E. Joranson & Aaron M. Gilson, Drug Crime is a Source of Abused Pain Medications in the United States, 30 J. Pain Symptom Mgmt. 299 (2005)). More than 1,800 pharmacy robberies occurred nationally over the last three years. See Abby Goodnough, Pharmacies Under Siege from, Robbers Seeking Drugs, N.Y. Times, Feb. 7, 2011, at A14. “[T]ypically [the robberies are] conducted by young men seeking opioid painkillers and other drugs to sell or feed their own addictions. The most common targets are oxycodone (the main ingredient in OxyContin), hydrocodone (the main ingredient in Vicodin) and Xanax.” Goodnough, supra; see also Chris Hawley, “An Epidemic”: Pharmacy Robberies Sweeping US, MSNBC.com, http://www.msnbc.msn.com/id/43536286/ns/ us_news-crime_and_courts/t/epidemicpharmacy-robberies-sweeping-us/# (last visited Aug. 4, 2011) (“Thieves are overwhelmingly taking oxycodone painkillers like OxyContin or Roxicodone.... ”). From 2006 to 2010, the number of pills stolen increased from 706,000 to 1.3 million. Hawley, supra. This apparent “epidemic” of pharmacy robberies has pharmacists around the country understandably concerned for their safety and for the safety of their customers. See Goodnough, supra; see also Paul Larocco, Druggists Fret Over Security, Newsday, June 28, 2011, at A3. Pharmacists’ worries are well founded in light of the often violent nature of the robberies, which can sometimes turn deadly. See Tim Perone, Coheed and Cambria Bassist in “Drug Rob’’ Bust, N.Y. Post, http://www.nypost.eom/p/news/ local/coheed_and_cambria^.bassistJn_ drugJP7 qOVcYB45DwsxZIo343LL (last visited Aug. 4, 2011); Hawley, supra; Al Baker & Joseph Goldstein, Focus on Prescription Records Leads to Arrest in f Killings, N.Y. Times, June 23, 2011, at A18. In contrast, unscrupulous physicians’ “involvement in criminal diversion is suggested to be rare and less than 0.1% of doctors registered with the DEA were investigated in 2001 — with only few having punitive action taken against them.” Fischer et al., supra, at 416 (citing James Zaeny et al., College on Problems of Drug Dependence Taskforce on Prescription Opioid Non-Medical Use and Abuse: Position Statement, 69 Drug & Alcohol Dependence 215, 226 (2003)). Notwithstanding the minimal role they may play in criminal diversion of prescription opioids, physicians play a large role in overseeing the proper administration of those drugs in patients who require them for legitimate medical purposes. Failure of proper oversight has the potential to lead to serious abuse and diversion of the drugs. Y. The Medical Community’s Obligations in Relation to Oxycodone and OxyContin Prescribing A. Pressures Placed on Physicians in Prescribing In choosing to prescribe or not to prescribe opioid painkillers such as oxycodone and OxyContin, physicians are subject to competing pressures. On one side is the force of regulation by both the federal and state governments. “All businesses that manufacture or distribute [oxycodone, OxyContin, or other opioid painkillers], all health professionals entitled to dispense or prescribe them, and all pharmacies entitled to fill prescriptions must comply with the CSA, Code of Federal Regulations (CFR), and state regulations.” NDIC 2009 Report, supra, at 1; see also Part VI, infra. For physicians and pharmacists, as well as for manufacturers and distributors, compliance includes “registering with the DEA and complying with a series of requirements related to drug security and records accountability.” NDIC 2009 Report, supra, at 1. A physician’s opioid prescription practice, if perceived as improper by the DEA or an equivalent state agency because it appears excessive, can result in thorough and often covert investigation by those agencies, see Libby, supra (detailing the DEA’s investigatory tactics), and possibly the filing of illegal distribution charges against the physician see, e.g., Wilson, supra. If convicted on those charges, physicians “are subject to the same mandatory drug sentencing guidelines designed to punish conventional drug dealers.” Libby, supra, at 3; see also United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975). Furthermore, state licensing boards may revoke a physician’s medical license if they find overprescribed opioid painkillers. See Christine Gorman et al., The Case for Morphine, Time, Apr. 28, 1997, http://www.time.com/ time/magazine/article/0,9171,986254-3,00. html (identifying Tennessee, West Virginia, and New York as states whose review boards are “notorious” for revoking the licenses of physicians who prescribe large quantities of opioids). And, most serious, if a patient dies from an overdose of one of these drugs, the prescribing physician could face charges of manslaughter or even murder. See, e.g., Barry Meier, Oxy-Contin Prescribers Face Charges in Fatal Overdoses, N.Y. Times, Jan. 19, 2002, at A14. Such severe consequences for a physician’s career, or in the worst of circumstances, personal freedom, provide a significant incentive for physicians not to prescribe opioid painkillers, regardless of whether a particular patient would truly benefit from them. Fearing investigation by the authorities, many physicians are reluctant to prescribe opioid pain medications. See Libby, supra, at 3 (citing and discussing studies) (“[A] 2001 study of California doctors found that 40 percent of primary care physicians said fear of investigation affected how they treated chronic pain.”); Fisher et al., supra, at 415 (“Several studies documented that [government regulation] led physicians to reduce drug does, to prescribe a drug in a less regulated schedule or to avoid prescribing opioids for patients with chronic pain ‘due to concerns of overzealous regulatory scrutiny.’ ” (citation omitted)); Richard Payne, Pain Management and the Medical Profession: What is Our Responsibility?, in Pain and Chemical Dependency 28 (Howard S. Smith & Steven D. Passik eds., 2008) (citing a study finding that more than fifty percent of New York State physicians restricted their prescribing behaviors because they feared sanctions by state regulators). Reluctance to prescribe these medications contributes to what is widely viewed in the medical community as a pervasive under treatment of pain in the United States. See Libby, supra, at 2 (“Untreated pain is a serious problem in the United States.... [M]ost experts agree that tens of millions of Americans suffer from undertreated or untreated pain.”); Melinda Beck, Diagnosing a Patient as a Faker, Wall St. J., July 5, 2011, at D1 (“[T]he Institute of Medicine, which advises the government on health issues, reported last week that pain is all too often undertreated in the U.S. For many of the 116 million Americans afflicted with chronic pain, help is delayed, inaccessible or inadequate, the IOM found.”). Illegal trade in the drugs has also been suggested by some to result, in part, from some physician’s reluctance to prescribe. Those patients who have legitimate need for the drugs but are denied them by their primary care physicians may seek them out through criminal means. See David B. Brushwood, Important Lessons from a Physician’s Conviction for Drug Diversion, Pain & The Law, http://www. painandthelaw.org/mayday/brushwood_ 030602.php (last visited Aug. 4, 2011) (“The reluctance of primary care physicians to meet patients’ needs for pain medications may push patients toward such unlawful practices.”). Opposing the pressure placed on physicians by government regulation not to prescribe opioid painkillers is physicians’ basic obligation to relieve suffering. The American Med