Cruel and Unusual: 25 Years for Taking Personal and LEGAL Pain Meds!

Richard Paey in his prison uniform and wheelchairRichard Paey in his prison uniform and wheelchairRichard Paey commit no crime against anyone at all. Helplessly reliant upon large doses of oxycontin after an accident that left him in excruciating pain and virtually bedridden, the 2nd Circuit Court of Appeal ruled the Florida court sentence of 25 years is neither cruel nor unusual for a man who has hurt no one and is no threat to anyone.
Here, in a series of articles from The Huffington Post, the New York Times, St. Petersburg Times (Tampa, FL) and CBS 60 Minutes is the tragic story begging for you to call Governor Jeb Bush today to give Executive Clemency to Richard Peay.

Cruel and Unusual: 25 Years for Taking Own Pain Meds
The Huffington Post
By Maia Szalavitz, December 7th 2006

In a mind-boggling act of sadistic legal buck-passing (I can’t bring myself to glorify it with the word “reasoning”), the Florida District Court of Appeals upheld a 25 year mandatory minimum sentence for a Florida man convicted of “drug trafficking” for possessing his own pain medication.

Richard Paey is a wheelchair-bound father of three young children. He has no prior criminal record– in fact, he’s an Ivy League law school graduate.He has not one, but two extensively documented and excruciatingly painful chronic disorders: multiple sclerosis and chronic back pain due to an injury suffered in a car accident that was treated by a surgery that made matters worse. (This surgery was so egregiously misguided that TV exposes and numerous large malpractice judgments resulted). Paey has already been in prison for three long years.

In prison– a place not exactly known for medical kindness– he has been given a morphine pump, which now daily gives him similar or higher doses of medication than he was convicted of possessing illegally.

So why is he serving 25 years? Tipped off by a pharmacist ignorant of pain management, Florida authorities decided that the doses of painkillers he was receiving were so high that he had to be selling the drugs, not taking them. They found no evidence of this, however, even after putting him under surveillance for months.

But they did manage to convince his New Jersey doctor– who Paey claims authorized his prescriptions– to testify that, in fact, Paey was forging them. The doctor was told that he would face a similarly lengthy prison sentence for trafficking if he’d authorized such high doses for a patient who had moved from New Jersey to Florida. (See here for why he had reason to fear, despite prescribing legitimately and appropriately).

To add to the exquisite ironies of the case, the reason Paey qualified for such a lengthy sentence was due largely to his possession of acetaminophen (Tylenol), not opioids. Paey was taking pills that included acetaminophen and oxycodone– but the state counted the weight of the acetaminophen towards the weight of illegal drugs when it determined the charges that led to his sentence.

In upholding his sentence, the majority argued that it was not so “grossly disproportionate” as to be “cruel or unusual” under Florida’s constitution. It is the legislature’s role, they said, to determine the appropriate laws based on harm done by drugs to the community and prior case has law upheld lengthy mandatory minimums for drug crimes.

Essentially, since Paey’s sentence wasn’t death or life without parole, it was OK, even though it was a nonviolent first offense committed by a person suffering extreme pain without evidence that he was actually planning on selling drugs. Paey’s family– who had been hoping he’d be home for Christmas– will have to wait.

The bottom line, for the majority, was that the law had been applied appropriately. Because the outcome was unjust in this particular case, Paey should seek clemency from the governor, not appellate court relief. Noting that the facts of the case “evoke sympathy” for Paey, they concluded that “Mr. Paey’s argument about his sentences does not fall on deaf ears, but it falls on the wrong ears.”

The only glimmer of hope was the thundering dissent by Judge James Seals. He gave hypothetical examples of situations in which an innocent person could be similarly convicted of drug trafficking by dint of simple possession of large quantities of drugs. He then concluded:

I suggest that it is cruel for a man with an undisputed medical need for a substantial amount of daily medication management to go to prison for twenty-five years for using self-help means to obtain and amply supply himself with the medicine he needed…

I suggest that it is unusual, illogical, and unjust that Mr. Paey could conceivably go to prison for a longer stretch for peacefully but unlawfully purchasing 100 oxycodone pills from a pharmacist than had he robbed the pharmacist at knife point, stolen fifty oxycodone pills which he intended to sell to children waiting outside, and then stabbed the pharmacist…

It is illogical, absurd, cruel, and unusual for the government to put Mr. Paey in prison for twenty-five years for foolishly and desperately pursuing his self-help solution to his medical management problems, and then go to prison only to find that the prison medical staff is prescribing the same or similar medication he had sought on the outside but could not legitimately obtain. That fact alone clearly proves what his intent for purchasing the drugs was. What a tragic irony.

In a letter to the governor requesting clemency, Paey’s attorney, John Flannery, wrote, “In more than thirty years of practice as an appellate law clerk in the US Court of Appeals for the Second Circuit and a federal prosecutor and as a practicing appellate and trial lawyer, I have never seen an opinion such as this in which the Court agreed the sentence was wrong but could not agree on how to correct it.”

This is a sorry time for justice in America– and an even sorrier time for the media, which continues to ignore the ongoing disgrace of our drug laws and their enforcement. (For more information and to help support Paey and others caught up in the war on pain doctors and their patients, visit the Pain Relief Network.)

Oxycontin pillsOxycontin pills Man Loses Case, Wins Sympathy
St. Petersburg Times
By Jamal Thalji, December 7th 2006

He’s been on 60 Minutes. A New York Times columnist has championed his cause. Even those who prosecuted and convicted Richard Paey sympathize with the wheelchair-bound man serving 25 years for drug trafficking — for obtaining the drugs he needs for his debilitating pain.

Count among those sympathizers the 2nd District Court of Appeal. The problem, a majority of the court ruled Wednesday, is that they can’t help Paey. They upheld his conviction and sentence by a 2-1 vote, but passed on this advice: Get the governor to commute the sentence. “Mr. Paey’s argument about his sentences does not fall on deaf ears,” Judge Douglas Wallace wrote, “but it falls on the wrong ears.”

Such advice from an appellate court is rare indeed, said University of Florida law professor Michael Seigel. “The court looks at a situation that it thinks is unfair,” he said. “It’s powerless to do anything about it. So the only thing it can do is to make an appeal to the governor, who does have the power to do something about it.”

Appeals to the Florida Supreme Court and the U.S. Supreme Court are possible. In the meantime, Paey’s attorney, John Flannery II of Virginia, said he took the court’s advice right away, filing a petition with the governor’s office Wednesday. It is unlikely Gov. Jeb Bush will be able to act before his term expires at the end of the year, but Flannery wants to start the process for Gov.-elect Charlie Crist.

Flannery did find solace in Associate Judge James Seals’ blistering dissent that the mandatory minimum sentence Paey received was “cruel and unusual.”

The Hudson man was arrested by the Pasco County Sheriff’s Office and the federal Drug Enforcement Administration in 1997 after buying more than 1,200 painkillers with fake prescriptions. The 48-year-old has multiple sclerosis and chronic pain since a 1985 car accident and failed surgeries. But Paey possessed more than an ounce of the drugs. Regardless of whether he tried to sell them, under Florida law he is a drug trafficker. Before his 2004 conviction, he rejected a plea deal — on principle — that would have meant just house arrest.

Paey’s wife, Linda, lives in Pasco with their three children. He is in the Tomoka Correctional Institution in Daytona Beach. Both took the news hard, Flannery said. “He feels especially bad,” the lawyer said, “because his wife and children were hoping to see him for Christmas.”

Punishing Pain
The New York Times
By John Tierney, June 2005

When I visited Richard Paey here, it quickly became clear that he posed no menace to society in his new home, a high-security Florida state prison near Tampa, where he was serving a 25-year sentence. The fences, topped with razor wire, were more than enough to keep him from escaping because Mr. Paey relies on a wheelchair to get around.

Mr. Paey, who is 46, suffers from multiple sclerosis and chronic pain from an automobile accident two decades ago. It damaged his spinal cord and left him with sharp pains in his legs that got worse after a botched operation. One night he woke up convinced that the room was on fire. “It felt like my legs were in a vat of molten steel,” he told me. “I couldn’t move them, and they were burning.”

His wife, Linda, an optometrist, supported him and their three children as he tried to find an alternative to opiates. “At first I was mad at him for not being able to get better without the medicines,” she said. “But when he’s tried every kind of therapy they suggested and he’s still curled up in a ball at night crying from pain, what else can he do but take more medicine?”

The problem was getting the medicine from doctors who are afraid of the federal and local crusades against painkillers. Mr. Paey managed to find a doctor willing to give him some relief, but it was a “vegetative dose,” in his wife’s words. “It was enough for him to lay in bed,” Mrs. Paey said. “But if he tried to sit through dinner or use the computer or go to the kids’ recital, it would set off a crisis, and we’d be in the emergency room. We kept going back for more medicine because he wasn’t getting enough.”

Paey in his 60 Minutes segmentPaey in his 60 Minutes segmentAs he took more pills, Mr. Paey came under surveillance by police officers who had been monitoring the prescriptions. Although they found no evidence that he’d sold any of the drugs, they raided his home and arrested him.

What followed was a legal saga pitting Mr. Paey against his longtime doctor (and a former friend of the Paeys), who denied at the trial that he had given Mr. Paey some of the prescriptions. Mr. Paey maintains that the doctor did approve the disputed prescriptions, and several pharmacists backed him up at the trial. Mr. Paey was convicted of forging prescriptions.

He was subject to a 25-year minimum penalty because he illegally possessed Percocet and other pills weighing more than 28 grams, enough to classify him as a drug trafficker under Florida’s draconian law (which treats even a few dozen pain pills as the equivalent of a large stash of cocaine).

Scott Andringa, the prosecutor in the case, acknowledged that the 25-year mandatory penalty was harsh, but he said Mr. Paey was to blame for refusing a plea bargain that would have kept him out of jail. Mr. Paey said he had refused the deal partly out of principle – “I didn’t want to plead guilty to something that I didn’t do” – and partly because he feared he’d be in pain the rest of his life because doctors would be afraid to write prescriptions for anyone with a drug conviction.

If you think that sounds paranoid, you haven’t talked to other chronic-pain patients who’ve become victims of the government campaigns against prescription drugs. Whether these efforts have done any good is debatable (and a topic for another column), but the harm is clear to the millions of patients who aren’t getting enough medicine for their pain.

Mr. Paey is merely the most outrageous example of the problem as he contemplates spending the rest of his life on a three-inch foam mattress on a steel prison bed. He told me he tried not to do anything to aggravate his condition because going to the emergency room required an excruciating four-hour trip sitting in a wheelchair with his arms and legs in chains.

The odd thing, he said, is that he’s actually getting better medication than he did at the time of his arrest because the State of Florida is now supplying him with a morphine pump, which gives him more pain relief than the pills that triggered so much suspicion. The illogic struck him as utterly normal.

“We’ve become mad in our pursuit of drug-law violations,” he said. “Generations to come will look back and scarcely believe what we’ve done to sick people.”

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