Federal judges should consider alternative sentencing for pain cream fraud defendants


Before Chris Epps got exposed for being a crook, the former Mississippi corrections commissioner made a lot of sense when he talked about finding the right balance between the crimes committed and the punishments doled out for them.

“We’ve got to decide in this state who we’re afraid of and who we’re mad at,” Epps was fond of saying.

The federal government is mad at the dozen or so folks in Mississippi who participated in the massive pain cream swindle that ripped off insurers, largely government-funded providers, for more than $400 million.

Of the five people sentenced so far, all have drawn prison terms, ranging from 16 months to 10 years.

The attorney for Dr. Brantley Nichols, the former Hattiesburg oral surgeon, is asking that his client not be required to join them.

There are some good reasons for granting the attorney’s request and giving Brantley an alternative sentence.

For starters, a prison sentence would likely cost Nichols his career and deprive this state, and particularly the Mississippi Delta, where he is currently practicing, of a specialist already in short supply.

The main reason, though, is the same one that Epps made about incarceration in general. Locking offenders up is not always the smartest way to deal with nonviolent crimes.

That’s especially true with well-educated professionals who break the law. In Dr. Nichols’ case, time behind bars is a wasted opportunity for the government to get free services while spending less on incarceration.

When U.S. District Judge Keith Starrett sentenced Thomas Spell Jr., a Ridgeland pharmacist who filed more than half of the fraudulent claims, to a 10-year prison term,  the judge told him, “You will have opportunities in jail to help other people and help yourself. It’s not an end to life. It’s a new beginning.”

While it’s true that sometimes white-collar criminals do voluntarily help their less-fortunate prison mates better their lives, there will be no compulsion on Spell to actually do anything behind bars other than look out for himself.

Dickie Scruggs, the former Mississippi trial lawyer who got caught in a judicial bribery scandal, tutored inmates at the Kentucky federal prison where he spent six years, helping them work toward their GED.

The experience prompted Scruggs, once he was released, to start an organization that funds efforts directed toward reducing the high number of Mississippi adults without a high-school diploma.

That’s a shining example of the transforming experience that incarceration can occasionally effect. But even that newfound mission for Scruggs might not be the best use of his education and decades of legal experience.

Had Scruggs been able to keep his law license and had been ordered to provide the same number of years of full-time free legal services to the indigent, that would have produced an arguably better payback for the government – and for society.

Taxpayers would have been spared the cost of feeding and housing Scruggs for those six years, while spreading further the government’s limited funding of legal services for the poor.

In Brantley Nichols’ case, a creative sentencing approach might be something like this:

First, determine how much prison time would be normally given for his crime. (It’s probably somewhere between one and two years, based on the previous sentences in the case.)

Then calculate how much income an oral surgeon in Mississippi should average during that same time period, and then require Dr. Nichols to provide – over a reasonable period of time – that same amount of free dental work to government-insured patients.

Finally, tack on the forfeiture of any ill-gotten gains and restitution of any insurance reimbursements obtained fraudulently — to be paid back either in cash or in additional free services.

Such a sentencing approach to white-collar crime would make the government more than whole on its losses, save on incarceration, serve as a warning to others, and do more to positively transform the offenders than prison would, all while keeping families together.

The same type of creative sentencing should not only be considered for doctors and lawyers whose lapse in judgment finds them in hot water with the law, but also for other professionals such as bankers, accountants, and business executives like Lamar County entrepreneurs Randy and Hope Thomley, who previously pleaded guilty in connection with the same case.

The Thomleys are smart and saavy business people who have much to offer to society, if given the opportunity to avoid prison.

Like Nichols, they have skills that could be applied to reducing government costs or reducing inequities in society with only a small amount of judicial imagination and oversight.

Some readers will surely object and argue that it’s unfair to go “easy” on white-collar criminals while jails and prisons are packed with blue-collar offenders.

Truth be known, too many of the latter are being locked up, too.

But even that doesn’t negate the merit of thinking of better ways to punish offenders with valuable skills rather than putting them behind bars.