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.
As Dickens said: "The Law is an Ass".
Just shoot me dead if I'm ever in pain. At least the gov' can't get me.
One was I had no desire, but also I knew if I did my parents would have locked me down so tight I wouldn't have seen light of day until I turned 21. IMO a little healthy parental fear is a good thing at an age kids are tempted by their peers.
Personally, I don't understand the desire to use drugs. Any thinking person knows what they do to you and I feel the same way about alcohol.
My Grandfather was an alcoholic and my Grandmother had to divorce him to maintain the property they owned, he ended up selling off his share for booze and, a formerly successful man, ended up dead on skid row. Life is wonderful and it's too short, much too short to miss any of it stoned or drunk.
I have to think there's a lot more to this story than what's presented here. Per the above, licensed pharmacies are fulfilling 100 pill Percocet prescriptions weighing 33 grams each. Obviously if they were doing this for Mr. Paey, they were are and are doing it for a lot of other people too, and the Florida law enforcement authorities have ready access to the records of every person who has received such a bottle of pills. Obviously most of those people aren't getting arrested, much less prosecuted or imprisoned. So there must be other reasons why Mr. Paey got this result.
I'm not saying he got a fair result, since I'm in no position to know all the facts of his case, but there is simply no way that Florida law has a mandatory 25-year minimum sentence for possession of a bottle of pills that was legally prescribed and dispensed, and this article is clearly trying to imply otherwise. The real law appears to be that ILLEGAL possession of this amount of an oxycodone-containing substance constitutes trafficking, which carries a mandatory minumum 25 years. That doesn't sound very reasonable when there is no specification of the amount of oxycodone itself. But it's clear that Mr. Paey was KNOWINGLY obtaining a very large number of these prescriptions by fraudulent means, over a period of several years, adding up to a very substantial quantity of this controlled substance. I'm also quite sure it's illegal for an out of state doctor to be providing prescriptions for a controlled substance to a person who has long since relocated to a distant state and who the doctor obviously hasn't seen in a very long time.
There IS a serious problem with chronic severe pain patients having trouble obtaining addictive painkillers that they have a legitimate need for. But there is also a serious problem with misuse of addictive painkillers, and with doctors taking bribes to provide prescriptions for these painkillers to people who not only don't need them, but who are also being seriously harmed by them (like Rush Limbaugh's hearing loss, to cite a well-known example). There are too many doctors who are choosing to make money illegally and unethically by continuing to provide these painkillers in cases where what the patient really needs is treatment to break the addiction. But like common street-drug dealers, it's more profitable to feed the customers' addictions and ignore the serious harm it's causing them, than to help them break the addiction.
I suspect Mr. Paey will be out of prison in a lot less than 25 years, but I'm much less confident that other responsible parties -- i.e. doctors and pharmacists who were knowingly participating in supplying Mr. Paey with illegal quantities of oxycodone -- will get the prison time they deserve.
I really don't get why there hasn't been serious action to set up a system for ensuring that patients who really need these drugs can get them, and that doctors who are legitimately prescribing appropriate amounts of these drugs to control pain can do so without fear of prosecution. In this age of high tech communications, how hard could it be to set up a national monitoring program, to identify legitimate patients and track how much of these drugs they're receiving from all legal sources? Have a minimum number of doctors who are not affiliated with each other certify patient X as a legitimate severe pain patient, specify an appropriate monthly or quarterly maximum of the drug, specify a reasonable time frame for eligibility (including permanent, which is very often appropriate), enter the patient's picture and fingerprint in a secure computer system accessible to pharmacists, and then let the patient get the drugs at any licensed pharmacy that happens to be convenient when a refill is needed. If a pharmacy can see immediately from the computer system whether or not a refill is authorized, this would prevent the doctor-shopping and pharmacy-shopping typical of addicted abusers, and also protect doctors and pharmacists from being drawn into legal trouble by crafty addicts.
I really don't like unnecessary government meddling, but the power of addictive drugs to make people do things they really don't want to do is an unusual case. Plenty of people have ended up stealing from or even killing their own loving relatives, to get money to buy drugs they're addicted to. They hate themselves for doing these things, but can't control it, and absence of government interference in these serious addictions simply doesn't translate into freedom.
Of course, the ultimate answer lies in medical progress, not a perpetual government surveillance program. I think it's realistic to expect that solutions not involving addictive drugs will be found for most forms of severe pain within our lifetimes.
"I ought to tear your no-good Goddang preambulatory bone frame, and nail it to your government walls"
Roger Miller fan?
There must be an impenetrable maze of laws and regulations that have protected individual medical practices and corner drugstores. The industry has a cottage industry character of the 19th century. If it were allowed to mature, then it would be a whole lot easier to get accountability on big players than it is with many thousands of small businesses. Ideas like yours woud be easy to implement.
If this is the whole story I have to be amazed, because I know people who are doing many illegal things to get lots of painkillers and the law doesn't touch them. Wha happened that this guy got so unlucky
Two words: JURY NULLIFICATION.
As if our health care system isn't already hopelessly wrecked by the insurance industry, by drug and medical tool companies, we now have the lawyers arrogantly presuming to dictate what is best. Wasn’t it in Florida where they refused to save a young woman from being starved and dehydrated to death; even with the whole world watching for over a week?
FormerACLUmember is dead wrong. 32 grams is a bit over one ounce, or about 100 pills.
Yes, I'm fully expecting replies that say "And you call yourself GovernmentShrinker, Ha!" But I have a feeling my meddlesome sounding proposal would result in net shrinkage of government meddling vs. the current system.
Consider doing it outside of government.
Thanks for the ping, neverdem.
Actually, I'm not at all sure that keeping drugs illegal keeps anyone's kids safe.
Heinlein wrote a story about this, didn't he?
Which came first, prohibition or the rampant, overwhelming organized crime culture?
Meanwhile, in Texas, we have to show a picture ID and sign in order to buy Sudafed. And Walmart's illegally keeping the info in their "system." I know, because I once tried to buy my 2400 grams too soon.
I'm not sure. Wasn't he a science fiction writer? If so, that explains my ignorance. Real science always fascinated me. The real world has enough for me.
Which came first, prohibition or the rampant, overwhelming organized crime culture?
I believe the former happens every time you make a black market.
You forgotten the first rule of criminal justice - when the state says you're guilty, you're guilty and the sooner you admit it the better. Think of your credit rating.
Indeed. Your remark reminded me of some examples of jury imposed sentences.
The most recent was in 2000; a 16 year stretch in the big house for stealing a candy bar. The perp had a long history and was on probation for a felony. He was offered a plea deal but thought he could walk. Probably best for him not to think since the jury gave him 16 years.
The other was in '92. A jury sentenced a fellow to life for stealing a brisket. He had either 17 or 18 prior convictions.
I will always remember the former as when interviewed about the long sentence the DA said "It was a BIG candy bar".
How? Only government has the power to prohibit/restrict sales of any product. If it's not run by government, people would opt out of the system, and those would be the same people who are currently abusing the drugs or their prescribing/dispensing authority. I like keeping government small, but some things just inherently either need to be done by government or not at all.
Heinlein figured that the junkies would eliminate themselves from the equation if they had easy, unlimited access. He didn't take into account all the Momas in the world or learn very much from the world's history with alcohol.
However, just as we can look back at the classics to learn about human nature, we can learn from the good science fiction. Science fiction often explores ethics, psychology and society in light of "suppose." I call it lessons we don't have to learn - if we would.
I have lived in a community where drug addicts spend food stamps at the supermarket. You can spot a tweaker a mile away. They gyrate wildly, they have nervous tics, exaggerated movements.... They are usually missing teeth, and have old-looking skin. I have said before that I can take you to a mall in your city or town, no matter where it is, and I will be able to show you what tweakers look like. You have no idea, because if you did, you would freak out. They are absolutely everywhere.
I saw a guy at the liquor store when I was buying my lotto ticket on Friday, and he was an obvious tweaker. He counted his money like four times, licked his lips alot, he kept sighing like he was very tired from a long day. I was at the mall 50 miles away on Saturday, where this woman with tight pants and a really nice, well, I am a man, but I digress... Her face was weathered and wan and wrinkled. She had the physical body of a 35-year-old and the face of a 65-year-old. She was OK to look at from the back, but when you see her face, it's like eewww! I drive by a homeless shelter every morning on the way to work. You should see the shining examples of humanity that I see every day.
Now, could you please tell me how the war on drugs has had a positive outcome? The empirical evidence is abundant that the drug users are abundant. Why is the war on drugs not preventing this? There should be no tweakers at all, and yet if I go looking for them, I guarantee you I will be able to find a hundred of them in a single day, and still have time for a long lunch AND be able to get home before rush hour traffic. The only thing your wonderful drug war is doing is making it easy for those gangsters with the angry expressions to make lots of money to pay for those hundred dollar shoes and cell phones and Hummer H2's. Your drug war sucks, and it is not helping. Why can't you people see that maybe it is time to try something else? Are you so afraid that if drugs become legal, then you will become addicted?
Thou shalt not kill made it's appearance in the burning bush, yet there are 45 murders a day in the US, according to Drudge. So, should we just give up and legalize that, too? btw, its not my war on drugs. I don't have anything to do with it. I do think it could be a lot worse.
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