8mm
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.
In reality, it's highly likely that the society your children were a part of regarded drug use (legal and illegal) as "normal activity". High school students in the past twenty years have lived in a culture that accepted drinking, smoking pot, and doing things like cocaine or the occasional bump of speed as "normal". Your children may have even tried one or all of these without your knowledge - It's not something we readily admit to our parents.
However, you shouldn't sell yourself short - It's a testament not to society, but to your ability as a parent that your children were intelligent enough to avoid the pitfalls inherent in some drugs both legal and illegal.
Also, you should remember that matters of legality do not typically govern acceptace by society, or vice versa. Note for instance the speed limit. The number of people who actually obey these laws to the letter is an extreme minority. One could argue that it is socially acceptable to exceed the limit. By the same token, it's perfectly legal to buy and smoke cigarettes, but it's been relatively socially unacceptable in most situations for over a decade. Are the laws catching up with society? In some cases, yes. However, an argument can be made, and should be made in my opinion, that the social unacceptace is plenty and doesn't need law to back it up. I would argue the same about most drugs that are illegal today - Making them legal would still not remove the social stigma for most of the people in this country. For example, restaurants and bars that already allow no smoking of cigarettes are not going to allow the smoking of pot simply because it becomes legal.
Anyhow, it's just something to think about.
Col Sanders
He say it was legal, but couldn't document this to the Gestapo's satisfaction.
I am not impressed by your analogy. It shows you don't know anything about drugs.
893.135 Trafficking; mandatory sentences; suspension or reduction of sentences; conspiracy to engage in trafficking.--
(6) A mixture, as defined in s. 893.02(14), containing any controlled substance described in this section includes, but is not limited to, a solution or a dosage unit, including but not limited to, a pill or tablet, containing a controlled substance. For the purpose of clarifying legislative intent regarding the weighing of a mixture containing a controlled substance described in this section, the weight of the controlled substance is the total weight of the mixture, including the controlled substance and any other substance in the mixture. If there is more than one mixture containing the same controlled substance, the weight of the controlled substance is calculated by aggregating the total weight of each mixture.
In other words, if you have a half gram of coke mixed in a 999 grams of baby powder, the law regards you as possessing a Kilo of cocaine.
If you have a microgram of LSD in twenty grams of suspension liquid, the law regards you as possessing twenty grams of LSD.
Most state and federal laws echo this ignorance.
Col Sanders
So show us how he's wrong.
IIRC, the analogy was between prohibition of alcohol and prohibition of drugs deemed "bad" - Aside from a US Constitutional amendment assuring that the former was indeed Constitutional, and the corresponding repeal of said amendment removing that Constiutional authority, please illustrate the difference. I would prefer you use facts, not feelings.
Col Sanders
You know how that situation is gonna end don't you? The detective is going to need delicate, life saving surgery and House will be the one to do it; He'll be so thankful that he'll see to it the charges are dropped.
Probably ! Love the guys attitude though .
Yep, I have had times in my life when medical emergencies made a good strong shot of dope life's greatest gift.
I will never forget the shot of dope right before my tonsillectomy in 1973.I think it was more of a strong muscle relaxant given before anathesia but I was on a real cloud nine high.Total peace for the first time in my life.
I could see then just why people become addicts.
Yeah. It was the first time I really got it.
Thanks for your thoughtful reply in 162. You make some good points.
War on Drugs bump
Maybe because he did not consider himself guilty?
Why? One purpose of privatization is to make prisons lucrative. And they grew in size!
I know the doctor I work for is very leery of prescribing class three drugs for pain relief.
Have you considered one of the implantable pain pumps like Jerry Lewis received to aleviate his excrutiating pain?
In this day and age of RN's at insurance companies routinely overriding doctors instructions, it's sometimes difficult to understand who is really in charge of medical care.
Unfortunately Claire, it shows that you don't know much about the issue. People have been getting high since biblical times. I don't condone it and I don't want to be around it, but I can't see any benefit of the so called drug war. I can see the death and destruction of civil rights that it provoked. Your right to own a gun has been attacked and eroded because of the war on drugs. Your right to move your money around as you see fit has been eroded by the drug war. Your right to peacably enjoy your home has been replaced with no knock warrants and deaths of innocents because of the war on drugs.
Mr. Paey is going to spend 25 years in prison. A murderer can expect to serve three and a half years in prison. This is wrong.
One could ask what was wrong with the jury?
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