What am I even doing

-Langdon received legitimate prescriptions to an opioid and a benzodiazepine under the care of a licensed physician (Dr. Hagan) after injuring his back. (In the confrontation with Robby in 1x10, he refers to “pain meds and muscle relaxants.” Only some benzodiazepines are muscle relaxants, and none are used for pain relief; lorazepam is a muscle relaxant, but Librium (chlordiazepoxide) is not. Opioids, on the other hand, are commonly prescribed for pain relief).

-He became chemically dependent on the benzodiazepine. (I am not going to speculate about whether or not he also developed an opioid addiction for these purposes because we haven’t seen him take any or talk about being addicted to both; on what we’ve seen, a prosecutor would have enough to charge on benzos but not opioids. Personally, I believe he became dependent on both and was more easily able to justify staying on the benzos to himself—some are used to treat withdrawal symptoms, at least in alcoholics, and opioids are both more addictive and more notorious than benzos. I think he truly managed to convince himself he was not addicted to the benzos and was only using them to combat an opioid addiction, even though it was not the case).

-He began taking benzodiazepines from work to support this chemical dependency. He would do this in two ways:

-One was to steal portions of prescriptions he wrote for Louie and other frequent flyers in the ER who were resistant to acknowledging they have an alcohol problem or at least to combating it—because they are unlikely to pay attention to how many meds are actually in the prescription or to take the full schedule as directed. I do not think he overprescribed to do so; that would be more likely to draw attention, and Santos was not confused at the 20-pill prescription written for Louie, suggesting it was an appropriate number—she only seemed surprised that half of the script was missing.

-The other was to order extra meds when a case came in that would justify doing so, withdraw a portion of the medication from the extra vial, refill the rest of the vial with saline, use medical glue to reseal the vial, and return the vial to the Pyxis with a note that it had ended up being unnecessary. Again, we saw him do this on Louie’s case, Santos discovered the vial, and the rest is history.

-He was not high while he was at work. Benzodiazepines are central nervous system suppressant (CNS) medications. This is why they are prescribed to treat anxiety, withdrawal symptoms, and used to stop seizures—they make someone calmer or less jittery, not manic. The behavior we see from Langdon on the day of the PittFest shift is more consistent with withdrawal symptoms—he is irritable, has difficulty remaining still and controlling his temper, is (as Mel notes) sweating heavily, and so on. He is exhibiting these symptoms as early as episode 1, and they get more prevalent over the course of the day, not less—like they would if he took either of the medications we know he stole that day. Symptoms like these tend to occur within 1-4 days of discontinuation in someone dependent on benzos. Based on this, Langdon’s most likely pattern of use was to stockpile medication when he had opportunities to do so on shift and use when he got home—which again, is something an addict would have an easier time justifying to himself than using while at work as an emergency medicine doctor. As time went on, he may have reached a point where he used at work and learned how to justify it to himself, but I don’t believe he reached that point, because he very clearly did not have such justification prepared in the confrontation with Robby in 1x10.

-The physical evidence we would have for court from season 1 related to his diverting are: the pills Robby found in his locker that matched the imprint code on Louie’s prescription, a record of his prescribing history (such as how often he would order an extra vial of meds and return it to the Pyxis), and the vial and cap Santos held on to. That’s it. What this means is the only rock-solid case a prosecutor has is for theft of 10 pills of Librium and 2 milliliters of lorazepam; it would be very easy for a defense attorney to create reasonable doubt around his prescribing records. (Personally, I would call Dana as a witness and have her testify to exactly what she told Santos when she was investigating: it happens all the time, to more than just Langdon, it is not indicative of theft every time; then I would enter another doctor’s prescribing history, probably Robby or Abbot’s, and point out how often they drew and returned meds as well).

-Federally, benzodiazepines are a Schedule 4 substance (shoutout @rolandtowen for pointing this out on my other post). Pennsylvania uses the same scheduling system as the federal government.

-At the state level, Langdon could potentially be charged under:

§ 780-113(a)(2), the adulteration or misbranding of any controlled substance, other drug, device, or cosmetic. An adulterated drug or device as defined by § 780-007 includes one that has had any substance “mixed or packed therewith so as to reduce its quality or strength, or[ ]substituted wholly or in part therefor [sic].

This charge is a misdemeanor under § 780-113(b); if convicted at trial, he could be sentenced to no more than a year in jail and/or a fine not exceeding $5000 for a first offense—which this is. If he was criminally charged, he probably would not be going to trial, for reasons I will discuss after listing possible charges.

§ 780-113(a)(12), the acquisition or obtaining of possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge; he was misrepresenting his use of medication in the Pyxis records. He could potentially be hit with multiple charges under this provision, depending on if he was overprescribing meds to Louie and others to take the excess, rather than prescribing appropriately and taking a portion because he knew they would not miss it.

This charge is a felony under § 780-113(b); if convicted at trial, he could be sentenced to no more than three years in prison and/or a fine not exceeding $10,000. Again, he would probably not be going to trial.

§ 780-113(a)(16), Pennsylvania’s simple possession with the intent for personal use provision—possession of a controlled substance that was not obtained pursuant to a valid prescription or a manner otherwise authorized in the act.

This charge is a misdemeanor under § 780-113(b); if convicted at trial, he could be sentenced to no more than a year in jail and/or a fine not exceeding $5000 for a first offense. Again, he would probably not be going to trial.

Pennsylvania’s Controlled Substances Act includes a provision (§ 780-142) that a federal conviction or acquittal for the same instance of wrongful conduct would require the state charges to be dropped—even though it’s not technically a Double Jeopardy Clause violation for both state and federal government to prosecute someone for the same act. This means that if Langdon was prosecuted, it would be at either the federal or the state level, not at both.

-At the federal level, Langdon could potentially be charged under:

21 U.S.C. § 331(b), the federal equivalent of § 780-113(a)(2). A first offense is a misdemeanor; if convicted at trial, he could be sentenced to no more than a year in jail and/or fined no more than $1000 under 21 U.S.C. § 333(a)(1).

21 U.S.C. § 843 (a)(3), the federal equivalent of § 780-113(a)(12). A first offense is a felony; if convicted at trial he could be sentenced to no more than 4 years in prison and/or have to pay a fine, the amount of which the statute directs the judge to decide based on the fines available for sentencing in Title 18—the US criminal code.

21 U.S.C. § 844 (a), the federal equivalent of § 780-113(a)(16). A first offense is a misdemeanor; if convicted at trial, he would be fined at least $1000 and could be sentenced to no more than a year in jail as well—the fine is a required penalty in the statute, the jail time is not.

-Now, all of these are options for charging; there is no definitive way to say, “this is what he would have been charged with if criminal consequences were pursued.” Prosecutors have a lot of discretion on whether or not to charge someone and what to charge them with, as well as whether to offer plea deals and what those plea deals look like.

-The District Attorney for Allegheny County is Stephen Zappala, Jr.; he has held the position since 1998. His bio on the DA’s public website emphasizes his belief in criminal justice reform, leniency for first time offenders, and he created a Drug Court diversionary program in Allegheny County. Drug courts typically offer one of two methods of avoiding jail or prison time: diversion prior to pleading, in which case the charges would be dropped upon successful completion of the program, or a plea deal where a suspended sentence is imposed pending completion of the program, and a defendant who successfully does so avoids jail or prison time and sometimes has their record sealed or expunged as part of the process; Allegheny County’s drug court is the latter (In the FAQ about drug court, one of the questions is "do I have to enter a plea before beginning the drug court program?" and the answer is yes).

-Based on the priorities of the Allegheny County DA, state court proceedings would likely look like this:

-Langdon is charged with one or all of the state offenses. His attorney reaches out to the ADA assigned to the case to discuss a plea deal with completion of drug court rather than a carceral sentence. Langdon pleads guilty to the misdemeanor of simple possession and receives a suspended sentence pending completion of the drug court program, which includes an individualized assessment of how to help him overcome his addiction. If he completes it successfully, he is not going to see jail time. While I can’t find anything as to whether his misdemeanor record is then sealed, expunged, or otherwise affected once he completes drug court in Allegheny County specifically, one of the defining features of drug courts generally is the dismissal of charges or expungement of convictions when successfully completed.

-The ADA would report the plea of guilty to a misdemeanor and participation in drug court to the Board of Medicine; his license would be automatically suspended. The Board of Medicine would then hold a hearing to determine if Langdon is an appropriate candidate for a PHP; if so, they would lift the suspension of his license and direct him to participate in a PHP for a period of 3-5 years. If he successfully completed the PHP, he would retain his license.

-Ten months is long enough for all of this to take place if he pled guilty/accepted the plea agreement when he first appeared before a judge, which does happen; a plea agreement in exchange for participation in drug court is hardly novel.

-Even if he was not criminally reported but was instead only reported for diversion to the Board of Medicine, ten months is long enough for the Board to hold a hearing on his license and decide to place him in the PHP rather than take more severe punitive action. The one thing I am not sure of and cannot find online is whether the Board would be required to report him for criminal proceedings as well if the diversion is reported, but the policy considerations that the state of Pennsylvania has behind offering avenues to let practitioners keep licensure and receive treatment for substance abuse disorder make me think it is unlikely.

-To be clear, both drug court monitoring and PHP monitoring are incredibly invasive; they involve counseling, random drug testing, and community supervision (which means limited privacy in the home not only for himself but for his family, as his assigned supervisory probation officer would not have to meet the usual probable cause requirement to search his home). Drug court participation requires frequent appearances in court, and PHP monitoring often involves mandatory forms of treatment—like attendance at Narcotics Anonymous meetings, which is a program that relies on religion and belief in a higher power in its process, although it claims to be spiritual rather than religious.

Federal proceedings, on the other hand, would look a little different:

First of all, it is very unlikely he would be charged federally at all. The U.S. Attorney’s website has press releases going back to 2013 dealing with indictments, sentences, convictions, and plea deals deemed significant enough to warrant public notification. This is obviously not indicative of all cases charged and convicted in the Western District of Pennsylvania, but it gives a good picture of the federal government’s priorities in prosecution of drug crimes. There is not a single federal case on this page where a doctor was indicted, convicted, or sentenced on simple possession for any schedule of drug, or indeed of any drug crime that did not include illegal distribution of Schedule III or higher meds to others and/or defrauding Medicare or Medicaid. There is a single case under 21 U.S.C. § 843 (a)(3) that involved illegally obtaining drugs for personal use, but it was by a woman who was forging prescriptions to get meds from pharmacies, not a doctor diverting meds from patients.

-Something else indicative of the unlikelihood of federal pursuit of charges under these circumstances is that there are no published federal criminal cases in LexisNexis (one of the databases for court decisions used by lawyers) against a doctor for diverting or adulterating drugs for personal use, nor for simple possession, in the Western District of Pennsylvania. When and if the federal government bothers to charge doctors in Langdon’s position, their cases are not resulting in opinions or orders by judges.

If Langdon was, for some reason, federally charged, the US Attorney’s office would likely charge him with the felony under 21 U.S.C. § 843 (a)(3), and then offer to let him plead out to a misdemeanor, whether adulteration or simple possession.

- Even if he was charged with and convicted of all three offenses, under the federal sentencing guidelines, he could be sentenced to a maximum of 6 months in jail, and likely would be sentenced instead to a term of supervised release no longer than three years, with conditions imposed to help him overcome his addiction.

Both of the above paths are what we in the legal field—and I am sure many others—call consequences for Langdon’s actions, even without the imposition of jail or prison time that Robby and Santos seem so sure is the only way that Langdon can face consequences. I have many points in making this post; one is that Robby and Santos have no idea what they are talking about in terms of punishment Langdon would be facing. Another is that jail or prison time is very unlikely, as is loss of licensure. Drug dependency rewires an addict’s brain, and while this does not excuse Langdon diverting drugs or treating Santos in the manner that he did, our court system recognizes that it does explain it.