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.
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.
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.
LOL! So the only reason for laws against drugs ("period") is to allow police departments to buy things like tanks?
Silly boy.
The question is not 'if drugs were legalized tomorrow' but is 'if drugs were legalized from your birth'.
Then yes, I'm sure I would've tried them, just as I drank and smoked tobacco. Also, people before they were illegal took them for a few decades, until the problems from refined illicit drugs caused.
Silly boy.
Are you really going to suggest that, laws against meth (for example) are there only so the cops can buy things like tanks?
The Judge will get his clerk to type up the order. Then he'll bang his gavel, and that will be that.
THey always pressure you to accept the plea deal by promising to come at you with all guns a'blazing if you insist on a trial.
THey always pressure you to accept the plea deal by promising to come at you with all guns a'blazing if you insist on a trial.
Here's the question you should ask yoursef - Did your children not use drugs because they were illegal or because they were raised better? Speaking from experience, if they were in high school in the last twenty years, it wasn't because they weren't available...
Col Sanders
So, he should have copped a plea to a crime he though himself not guilt of?
Remember that when BATFE breaks down your door, stomps your cat, slams your wife against the wall, and charges you with possession of an illegal/unregistered weapon, because you had some metal washers and a few hunks of metal tubing in your garage.
You are quite correct, the drugs were widely available in high school, so their upbringing had to be a major factor. My thought is, though, that if society accepted drug use as a normal activity, then I wouldn't so easily have been bringing the kids up to avoid them.
I understand that society is able to frown on things that are legal and thus limit their use without laws and regulations. If we were to start all over again, without the prohibitions and notoriety of drugs, who knows whether kids would use them less than they do now or more? That question is beyond my ability to answer.
There are so many parallels in the official mind-set of the War on Terror and the War on Drugs, that it makes my head spin. The WOT is worse, though, because it suggests giving too wide a berth to people who could or would KILL us all, and the WOD giving too narrow a berth to people who, on the one hand, as in this case, just trying to manage their pain, or at worst giving themselves pleasure and peace in private. It is as though, frustrated by the various legal obstacles of prosecuting the truly dangerously guilty dealers/distributors, law enforcement then redoubles its efforts to prosecute the innocent, as if ANY victory, even a totally misconceived symbolic one, is better than nothing.
The substance isn't illegal, it's just available only by prescription. Big difference. The total amount of substance, oxycodone and acetaminophen combined, is what allowed them to charge him with trafficking rather than just unlawful possession. The point being he didn't have enough of the illegal substance to be charged with trafficking if the legal substance had not been mixed in. I very much doubt the authors of the law and/or regulation, intended for non controlled substances to be counted when determining the amount. Of course the use of a amount to establish the presumption of trafficking is somewhat questionable as well, especially so if that presumption or the amount is a matter of regulation rather than statute law.
When you actually ARE in pain,morphine and the other opiates simply numb the pain.Its when you are NOT in any pain that the drug and others like it are "Good".
And,yeah,I've taken such substances under BOTH conditions at various times in my life.
The article says his prescription of 100 tablets was 33 grams.
each of Paey's 100-pill Percocet prescriptions, weighing in at 33 grams,
I'm guessing here that some people flunked math.
18,000 x even a small, minute amount of oxycodone in each pill still adds up to 4 grams or whatever their threshold level is (each pill would only need to have .00022 grams of opiate to equal 4 grams i.e. a dust mote). This guy single handedly boosted Merks quarterly profit for 8 straight quarters.
Just for visualization, I was reading that a 1 liter jar can hold about 240 jelly beans (see any of those guess how many jelly beans are in this jar to win $100 prizes). Now assuming that the pills were say half the size of a standard jelly bean, that would mean that he bought enough pills to fill roughly (38) 1 liter jars.
I see. Then it seems any decent lawyer can get the trafficking part dropped since he indeed did not possess enough of the illegal substance to warrant (pun unintended) the charge.
Bernie-McCabe-at-work Ping.
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