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.
Two wrongs don't make a right. They both need abolished.
Everyone should bookmark this page and refer to it when some poster says "If you are not a criminal, you have nothing to fear from the police."
How does a person get these laws overturned to include common sense and individual decision?
One-size-fits-all pain medication cannot be legislated.
Is this a State, Federal or local issue?
What about the "Innocence Project" stepping in to get this overturned...or do they only deal in rape and DNA product investigations?
Save it. Paey is an activist who was begging to get arrested.
I have and still do. The drug war has not stopped anyone from using drugs. It has, instead, filled our prisons and streets with criminals. A man with a drug conviction for smoking a joint can't get a loan to get a college education. He can't participate in over a hundred different professions. For a fraction of the law enforcement (not even counting the human cost), we could treat drug users for their addiction. And lastly, who the hell is the federal government to tell me what I can and can't put into my body?
What a remarkably lame comment.
I hope the drug warriors are proud of this one.
I can't believe that we as a society take this lying down. If only more people knew the truth. Like the above poster said.. Patriot Act?... Rights lost to the Patriot Act are NOTHING compared to what was lost in the name of the WoD. The damage caused by this is incalculable, and yet, if I wanted to, I could get any drug I wanted, cheaply and easily, just about anywhere.
THAT'S what I call a quagmire... An un-winnable war that makes criminals out of truly innocent people.
Exactly. Paey is in jail because that's where he wants to be, making a spectacle of himself.
"The purpose of the war on some drugs is to provide employment opportunities for LEOs and attorneys, and human fodder for the pri$on-industrial complex. Period."
"What a remarkably lame comment."
That comment is ABSOLUTELY true. It's also a symptom of the government's methoed of never realizing that what they've done is wrong, it's just that they haven't done ENOUGH of it yet!
"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"
Actually 32 g. = 1.124 OUNCE. In drug terms, that is a bunch.
Sort of like yours.
Could be. However, there is clearly a legitimate case to be made for medical caution. I know several people who have at one time or another become addicted to pain medication, and there are definite toxicity issues that must be dealt with as well. Good doctors would be concerned about such things.
He should be killed. After all, he had drugs. In this country, having drugs is the only thing worse than being called a racist. He had drugs, he should go to prison forever. There is a war on drugs, you know. Everyone who uses drugs of any kind must be imprisoned. No excuses. Lock them all up. Throw away the key. The war on drugs must go on until we have locked up everyone with drugs and confiscated all their property. It's for the children. /sarcasm
The headline and rationalization that 98% of the substance was over-the-counter is the absurd part. Putting a narcotic in a legal substance does not alter the narcotic's illegality.
But it seems he got what he wanted. He turned down all plea bargains until they put him in jail with a morphine pump.
No prosecutor wants me as juror on a drug case. I don't know why more juries don't exercise jury nullification, because I know I would.
The comment is preposterous. The war on "some drugs?" Which ones? Any potential meaning for the comment was lost right there.
And the only reason for drug laws is to provide LEO jobs and human fodder for the prisons? Pshaw.
Both of you folks need to get an adult grip on life.
Juries determine guilt. But judges impose sentences. I'm comfortable that, overall, juries do not do too bad a job on the guilt thing. There's a lot of evidence that a lot of judges do a pretty bad job on the sentencing thing; and usually they err on the low side.
There are a lot of factors that bias judges to soft sentancing--but leftist ideology and overcrowded prisons are probably the most important. There are, on the other hand, few factors that systematically bias judges to be too harsh.
Justice is very imperfect. You have to balance occasional outrages like this one against the probation sentences judges used to impose on serious criminals before mandatory minimum sentencing and the solved and unsolved crimes the released criminals committed while on parole.
This is a fairly difficult balance to achieve and mandatory sentences are one, albeit imperfect, try at achieving the right balance. To call them "stupid demagoguery" seems to me just a little hyperbolic.
"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.
Maybe it's because he's innocent"
Doesn't matter if you're innocent, once you're in the system. Especially over a drug "crime".. On your knees, bow to your masters!
Well, there's 28 grams in a ounce. So, not a whole lot.
The bottle of Tylenol I have at my desk has 500mg tablets. So, 32 grams = 64 tablets of Tylenol. Does that help?
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