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Abstract

Due to the concerns Burrage raises and its implications for the nation’s current opioid crisis, this Note proposes that Congress should broaden the circumstances in which the penalty enhancement of section 841(b) may be applied. Part I of this Note discusses the opioid crisis and the role physicians play in it. Part II explores the section of the Controlled Substances Act used to criminally charge physicians and the exception the Act provides for physicians prescribing opioids within the scope of relevant medical conduct and professional practice. Part III analyzes Burrage v. United States and examines the immediate legal consequences of its holding, flagging issues that Burrage’s approach creates in ensuring appropriate punishment for physician violators. Finally, Part IV proposes a legislative amendment that widens the applicability of the twenty-year mandatory minimum penalty enhancement of section 841(b) by broadening the language of the statute to allow for contributing factors. Such a solution is not without concern, and several concerns are addressed here, but the devastation of the opioid crisis must be met with creative lawmaking.

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