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.
If the government is deadlocked and paralyzed by conflicting pressures, then you can either live with that or find a way to work about that.
Possibly, but I think it's more likely that he didn't think they would get a conviction on the more serious count and we would walk away. There was obviously a miscarriage of justice here.
One of the articles that I read on the case inferred that Paey took an old prescription for pain killers and changed the date and quantity and presented it to get the 100 tablets. The doctor that signed the presecription said that he hadn't treated Paey since 1996. If that's true he knew that he broke the law, but didn't think he would be convicted of trafficking.
If he was guilty and that was his first offense, I think he should have gotten a fine, some community service and a suspended sentence.
Florida is the Land of Satan BUMP
Florida is the Land of Satan BUMP?
Florida Judiciary is the Land of Satan, I would suggest.
I've been fighting with chronic pain for nearly 30 years and I'm only 41 years old. Doctors can't prescribe painkillers because of stories like this, so people continue to suffer just because they've been lumped in with REAL drug runners.
Stories like this infuriate me. Chronic pain affects more than just the patient: the entire family (if there is one) feels the effects, yet this prosecutor and jury CHOSE to heap on punishment after punishment.
God bless you and protect you. Your suffering is made far, far worse by ignorant petty tyrants, specially in judicial hellholes like Florida.
Thank you so much...I do have hope. I'm scheduled for the trial of a spinal cord stimulator at the end of January. If it works, a 60-70% cut in the pain will be a huge Godsend.
"Big River" is perhaps the only Broadway musical I can stomach...LOL
My father raised me on Roger Miller, Hank Williams Sr., Johnny Horton, Marty Robbins...etc
It was much to his chagrin that I later graduated to playing guitar in several punk bands...However, imagine my bandmates surprise when I popped in the "Roger Miller's Greatest Hits" cassette on the van's stereo...LOL
Col Sanders
I'm now a very successful professional with a salary that approaches six figures. Incidentally, this story goes for every member of the three bands I was a part of over the years and we did it without detox or assistance of any kind. In addition, a couple of the guys finished college and are well over the six figure mark.
Oddly enough, the only habit that followed most of us from that lifestyle was smoking cigarettes. For some reason, it took me almost six additional years to kick that habit - Some of the other guys still have it.
I have two beautiful children and I often joke that they have no chance - There is no condition in which they can cross my threshold where I won't know a) that they're high, and b) what they're on. So they're screwed. Having said that, I can only hope that they have half of the life experiences that I've had. I tell them all the time to ignore anyone who tells them they "can't do" something. If you want to do it, go out there and try. When it's over, if you haven't succeeded, at least you can say you tried.
However, I digress.
I believe that just as there are stupid people who will never learn to drive correctly and will eventually make a mistake that kills themselves and perhaps others, there are people who can't handle drugs or alcohol in any way shape or form and may become addicted thus ruining their own life and perhaps the lives of others. However, just as I don't believe we should ban anyone from driving based on the former, we shouldn't ban drugs or alcohol based on the latter.
And for what it's worth - I'm not sure which of my posts to which you were replying, but I don't believe the US Constitution currently empowers the federal government to create laws or regulations making any substance illegal to grow, manufacture, possess, or ingest for any reason. In addition, I'm fairly certain that most state Constitutions don't conferr that power either.
Col Sanders
IMO, some of Miller's songs are the best kind of short poetry. Poetry a straight man not on drugs can enjoy, like Robert Service or Kipling.
Too bad so many people only know his humerous work...not that there's anything wrong with that.
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