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.
Of course; that is why the government needs a boot up its ass to kick it out of this issue.
Funny thing about some folks...when they believe they're innocent, they'd rather go to trial than cut a deal. There's nothing wrong with that.
If you're innocent, cutting a deal means confessing to something you didn't do, and some folks aren't willing to go there.
Sorry for ruining your morning but you know what they say, "if you do the crime, you've got to do the time!"
Of course maybe you could use the "If the glove doesn't fit, you must acquit" defense.
I hate how judges, the legislators and bureaucrats distort the plain meaning of words:
traffic n. 1a : import and export trade b : the business of bartering or buying and selling c : illegal or disreputable commercial activity.
So if the defendant was not selling the drug (or at bartering for something else), how could he be guilty of the "trafficking" offense?
Florida seems to have a disproportionate share of strange happenings.
The prison fitted him with a morphine pump. The Feds are giving him more drugs than they put him in jail for having. What a country!
32 grams = about the weight of a fingernail or a few drops of water = 25 years of jail in Florida in your wheelchair attached to a morphine pump = millions of dollars of taxpayer money utterly wasted = innocent lives ruined = justice perverted
I completely agree.
And perhaps the difficulty of finding docs who will prescribe what he wants, indicates that Mr. Paey's "pain doctor" is not conforming to accepted medical practice.
Florida has an utterly corrupt, evil judiciary controlled by the democrat party.
Probably both. Sob stories like this should never be accepted at face value.
this has gotten out of control.....the war on drugs is a dismal failure, netting the killing of a 92 year old grandma, a 15 year old with a video game controler in his hands, people serving prison time for possesion of less than a gram of marijuana, doctors afraid to write pain prescriptions for people in chronic pain. we do not need to be protected from ourselves. end the war on drugs ( if ya still wanna fight it, fight it at the border )
Maybe yes and maybe no. One thing's for sure. It's not the business of this idiot prosecutor or the State of Florida.
L
You should live in a community where the drug trade and addiction touch every family with sorrow and misery before you denounce the drug war.
Or maybe "accepted medical practice" is to avoid problems with the Federales. "I can either give my patient the proper drug to releive his pain, but then I have to send a copy of the triplicate prescription to the feds and they may question me, or I can tell him to take two asprin and don't call me back."
Period.
Period.
Sullum is trying to convince you of something specific. It is not safe to draw any conclusions based on an opinion piece from a fellow whose magazine has a vested interest in one side of the argument.
In fact, one would probably not lose money by betting that he shading some of the facts of the case, and leaving others out.
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