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From painkillers to prison

Published April 5, 2004

When the issue of chronic pain intersects with this nation's draconian drug laws, common sense and compassion often take a holiday. Consider the case of Richard Paey, a 45-year-old father of three who sits in a wheelchair, debilitated by multiple sclerosis and chronic pain from botched back surgery, and is now facing a 25-year mandatory minimum sentence for having forged prescriptions to treat his pain.

Paey's case is just one example of the skewed priorities that result from the nation's drug war: Mandatory minimums tie the hands of judges to offer leniency; and the looming threat of prosecution dissuades doctors from aggressively treating pain.

Paey and his wife moved to Florida from New Jersey in 1994. Earlier, a car accident and disastrous back surgery had left him in debilitating pain, putting him on disability. Paey claimed he couldn't find a local doctor to treat him and so his New Jersey physician sent him undated but signed prescriptions for Percocet, Lortab and Valium.

In January 1997, investigators from the Drug Enforcement Administration met with Paey's New Jersey doctor about the illegal prescriptions. When that source dried up, the government says Paey filled old prescriptions he had photocopied. Despite months-long surveillance of Paey's activities, there was never any evidence that he resold the 1,200 painkillers he bought between January and March. It was all apparently for his personal use.

Still, in 1997 he was charged with drug trafficking, among other drug-related crimes.

To the credit of Pinellas-Pasco State Attorney Bernie McCabe, Paey was offered a generous plea deal of house-arrest and probation, but he stubbornly refused it. Later plea offers for a five-year prison sentence were also rejected. Paey didn't feel that medicating his pain should have been a crime.

And he has a point. While altering a prescription is certainly a criminal act, the under-treatment of pain has been a long-running health care problem in this country, now exacerbated by the increased recreational use of prescription medications such as OxyContin. As the DEA and other law enforcement agencies have stepped up their scrutiny of doctors, many have been frightened away from offering their patients aggressive pain treatment.

The result has been making drug traffickers out of patients who doctor shop and engage in other unlawful practices to get sufficient quantities of painkillers. This is an abuse of our criminal justice resources. Paey is not a man who belongs in prison. What he and other pain patients need is a health care system that will respond to their affliction. (Paey now has a morphine pump in his back to dull the pain. His wife says, ironically, it provides him with more narcotics than he was getting from the Percocet, which is 98.5 percent Tylenol.)

But it looks like prison is very much on the horizon. After two trials were set aside due to irregularities, Paey was convicted by a New Port Richey jury last month in a third. He was found guilty of 15 counts of drug trafficking, obtaining a controlled substance by fraud and possession of controlled substances. He faces multiple 25-year mandatory minimum sentences, since Florida's rigid drug laws treat everyone with a certain amount of medicine like a drug dealer. Sentencing is April 16.

Plenty of blame can be spread around for this travesty, including to Paey himself for not taking the initial plea offer, but the drug laws are the main problem. Mandatory minimum sentencing laws result in breathtaking injustices and remain in place because lawmakers refuse to act rationally where drug issues are involved. With the law stripping Florida's judges of discretion, Paey's only hope is another generous plea offer. Otherwise, this man of failing health will probably spend the rest of his years behind bars.

[Last modified April 5, 2004, 01:20:27]


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