Posted on 12/13/2006 6:54:17 AM PST by FormerACLUmember
Remember the girl who received a five-day suspension for bringing Tylenol to school? If that punishment seems excessive, how about a 25-year prison sentence for having Tylenol at home?
In 2004 a Florida jury convicted Richard Paey of drug trafficking involving at least 28 grams of the narcotic painkiller oxycodone, which carries a mandatory minimum sentence of 25 years. But there was no evidence that Paey, who has suffered from severe chronic pain for two decades, planned to do anything with the pain reliever except relieve his pain. And since he was taking Percocet, a combination of oxycodone and acetaminophen, the over-the-counter analgesic accounted for 98 percent of the weight used to calculate his sentence.
This penalty is both cruel and unusual; first-time offenders charged with unauthorized possession of prescription drugs typically get probation. But last week Florida's 2nd District Court of Appeal ruled that Paey's punishment is not "grossly disproportionate" enough to be considered "cruel and unusual" under the Eighth Amendment or even "cruel or unusual" under the state constitution. The court nevertheless made the rare gesture of urging Paey to seek clemency from the governor, who can commute his sentence to time served (three years) and should do so as a matter of basic decency.
Today Paey, a father of three who has multiple sclerosis and uses a wheelchair, receives morphine from a pump prescribed by a prison doctor. The drugs that led to his arrest in 1997 were the same ones his New Jersey doctor, Stephen Nurkiewicz, prescribed for the severe back pain that resulted from a 1985 car crash and the unsuccessful surgeries that followed: Percocet, the painkiller Lortab, and the muscle relaxant Valium.
After Paey and his family moved to Pasco County, Florida, in 1994, Nurkiewicz continued to treat him--a fact that highlights the difficulty pain patients have in finding doctors willing to prescribe adequate doses of narcotics. Paey said Nurkiewicz authorized all the prescriptions he filled in Florida. Nurkiewicz, who could have faced charges himself if he had backed up Paey's story, said he stopped treating Paey in December 1996.
At worst, then, Paey was guilty of fraudulently obtaining drugs for his own consumption, either to treat his pain (as he insisted) or to maintain an addiction he developed while treating his pain (as the prosecution suggested). There was no evidence he was selling the drugs or planned to do so.
But as the Florida appeals court explained, "a person need not sell anything to commit the ‘trafficking' offense"; all that's required is possession of at least four grams of "any mixture containing" oxycodone. Hence each of Paey's 100-pill Percocet prescriptions, weighing in at 33 grams, qualified him as a trafficker several times over. Each also qualified him for the 25-year mandatory minimum sentence.
The prosecutors have suggested Paey's real crime was not prescription fraud but his stubbornness in turning down plea bargains. "He made his own bed here as far as I'm concerned," said Bernie McCabe, Pasco County's state attorney, after the appeals court ruling. Even assuming defendants should be punished for insisting on their right to a trial, does 25 years seem like a fair penalty?
Calling Paey's punishment "illogical, absurd, unjust, and unconstitutional," a dissenting appeals court judge faulted the prosecution for abusing the law. "With no competent proof that [Paey] intended to do anything other than put the drugs into his own body for relief from his persistent and excruciating pain," he wrote, "the State chose to prosecute him and treat him as a trafficker in illegal drugs."
Outgoing Gov. Jeb Bush, whose own daughter was sentenced to probation and treatment for trying to obtain Xanax illegally, should recognize the senselessness of punishing someone who has never trafficked in drugs for drug trafficking. The appeals court said Paey's plea for justice "does not fall on deaf ears, but it falls on the wrong ears." Let's hope the right ears are not deaf.
Not everywhere and/or under all circumstances. In Texas, criminal trials are composed of a trial phase and a sentencing phase. Some information and testimony is not allowed until the sentencing phase. Prior convictions and arrests for example.
A coworker was the jury foreman on a child sexual abuse case. He said they got a completely different picture of the perp during the two phases. In the "trial" phase they were thinking he was just somewhat messed up old man, the actual "abuse" wasn't all that bad or blatant, just illegal generally "not good". They thought they would probably let off lightly in the sentencing phase. They they got a look at his past history, and gave him the maximum allowable, to keep him out of society as long as possible. He'll probably die in prison.
It was a nurse. When I complained to the doctor he referred me back to the nurse and wouldn't say anything more.
"But as a father who raised 2 children, I've been generally grateful that drugs were illegal, and grateful my kids didn't use 'em."
With all due respect, that fact that your kids do not use drugs has *nothing* to do with them being illegal. It probably is, to your credit, because you raised them right.
I don't mean to scare you as a parent, but your kids (and any kids) can get drugs if they want... any drug, any time, no problem. It's the upbringing they got that has kept them away from drugs, not the narco-thugs.
So do what Texas does, and take the Judges (mostly) out of the sentencing loop. It's not for no reason that Texas has so many murders on death row and so many executions. The People, in their role as jurors, don't tend to let the baddest dudes off with a slap on the wrist... especially as testimony from the victim's family and other loved ones is allowed during the sentencing phase. Instead of hanging judges, we've got needling juries. Works for me.
Another alternative is to make judges stand for continuance in office, as Nebraska does. That is better than having them run for office and reelection. Appointed judges have undergone at least some screening, since no Governor wants a "Willie Horton" around his neck, nor to be put on the hot seat by the likes of BO'Reilly. But since the judges are subject to being kicked out if they screw up too badly and too often, it keeps them on their toes and lessons the tendency to go soft on hard criminals.
Don't know about Florida, but Texas law supports the shooting of law enforcement agents, under the proper circumstances. Such as if they use potentially deadly force, to affect an arrest if they use such force without you resisting
From Title 2 Texas Penal Code:
§9.31. Self defense.
§9.32. Deadly force in defense of person.
(a) A person is justified in using deadly force against another:
(1) if he would be justified in using force against the other under Section 9.31;
(2) if a reasonable person in the actor's situation would not have retreated; and
(3) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to protect himself against the other's use or attempted use of unlawful deadly force; or
(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
(b) The requirement imposed by Subsection (a)(2) does not apply to an actor who uses force against a person who is at the time of the use of force committing an offense of unlawful entry in the habitation of the actor.
I understand that. The implication is that the doc told the nurse what was to be done and didn't want to talk to me about it.He was not "my" doctor but was whoever got me from the ER.
House was charged last night. Oxycodone and a selfrighoutous co[ did him in.
The cop will get justice when Hous has to save him.
Maybe, but not me. I've got an engineering master's degree, with a bit more math than the average engineer would take.
18,000 x even a small, minute amount of oxycodone in each pill still adds up to 4 grams or whatever their threshold level is (each pill would only need to have .00022 grams of opiate to equal 4 grams i.e. a dust mote). This guy single handedly boosted Merks quarterly profit for 8 straight quarters.
18,000 was the amount he is said to have purchased over two years, not the amount he had in possession. It was the amount in possession that allowed the "trafficking" charge, as I read it anyway.
BTW, if the pills were "half the size" if would mean they take up 1/8 the volume, using the general notion that "Half the size" means half in each dimension. That gets you down to just over 9 1 liter jars.
I don't know how many the man was taking at each "setting", or what the mix of pills, the article mentions 3 different types having originally been prescribed for him.
Lets say he took 2 each of 3 different drugs 4 times per day that's 24 pills per day.. just about what he's said to have taken. Most likely he'd take less of some, perhaps more of others. 18,000 pills sound like a lot, until you spread it over 2 years of multiple drugs taken multiple times per day.
I believe Percocet comes in five-ten mg. dosages.....with maybe 325 mg of acetaminophen (Tylenol).
A rough guestimate should be around 75 tablets. Ballpark.
The article indicates that the acetaminophen was used in calculating the weight.
Tanks? What kind? I can't imagine any need for tanks, unless the criminals are armed with something like LAW rockets. An APC will stand up to all small arms.. well maybe not a .50 BMG, but what criminal is going to be lugging one of those, either the "sniper rifle" type, or the Ma Deuce type, around with him?
You and I don't need to justify what sort of arms we choose to own, but the Sheriff, who one way or another is spending *our* money, sure as heck does.
The amount of actual Percocet in 100 pills would be 500mg (half gram) to 1 gram (10 mg dosage).
I guess you missed this from the Appellate Court:
But as the Florida appeals court explained, "a person need not sell anything to commit the ‘trafficking' offense"; all that's required is possession of at least four grams of "any mixture containing" oxycodone
Yep. Not:
all that's required is possession of any mixture containing at least four grams of oxycodone.
You're right that there's some variation from state-to-state. But the article involved a conviction where there are mandatory sentencing guidelines. I believe that in almost every jurisdiction that has mandatory sentencing guidlines, that legislation came about because of abuse by some judges (not juries) in imposing sentences that were too light. So we would be talking about a jurisdiction where judges, not juries, impose the sentences.
One pill for two days??? Give him more. One won't even get him through the night.
My kids are grown now, and out of college, out of grad school even. I like to think I was an OK father and thank you for suggesting it.
Yes, you are right, there were plenty of drugs available to my children at school when they were teenagers, how could there not have been in Miami during the 90's? I don't doubt that they tried them, but they did not become users, thank God.
In any case, I always have mixed feelings on this subject; I understand that I am being inconsistent with my basic libertarian instincts when I express gratitude for drug laws. I think it's easier to bring kids up not to use drugs when society officially disapproves. OTOH, if drugs such as pot were just ordinary everyday things, instead of some grand rebellious adventure, then maybe kids wouldn't feel so compelled to use them? Or perhaps they wouldn't use them any more than they do now.
Certainly it's fairly obvious how destructive the WOD has become to our society and freedom. And certainly the primary beneficiaries have been the drug lords and dealers. And I suppose the BATF, etc.
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