It Seemed Like an Awful Lot of Pills to Us

Jacob Sullum | January 30, 2006

Last night's 60 Minutes segment about Florida pain patient cum "drug trafficker" Richard Paey was very sympathetic to him without being heavy-handed, mainly letting the facts (and a highly articulate Paey) speak for themselves. Morley Safer highlighted an important element of Paey's appeal: contradictions in statements by Paey's New Jersey doctor, who initially confirmed that he had authorized the narcotic prescriptions that were the basis for the criminal charges against Paey, then changed his story to help the prosecution, apparently to avoid being charged himself. In an interview with Safer, the state prosecutor who handled the case, Scott Adringa, acknowledged these inconsistencies but defended the decision to pursue charges against Paey that resulted in a 25-year mandatory minimum sentence.

Andringa also conceded the government had found no evidence that Paey sold any of the drugs on the black market but argued that Paey could not possibly have consumed all of them himself. Pain expert Russell Portenoy easily rebutted this claim, noting that patients who develop tolerance to opioids may end up taking doses that seem enormous to people unfamiliar with long-term pain treatment--doses that would kill someone unaccustomed to narcotics.

Although Adringa is still pushing this uninformed argument, it was not necessary to convict Paey or to earn him his draconian sentence. As Andringa explained to Safer, Florida's mandatory minimum sentence for drug trafficking applies to illegal possession of narcotics above an arbitrarily defined weight threshold--a threshold so low that one bottle of pills can send you to prison for 25 years.

Comments

amazingdrx|1.30.06 @ 10:37AM|#

I STILL cannot understand why/how "drug" Limbaugh is still free (well actually voluntarilly confined to his own private insane asylum), is Florida really that corrupt?

"Drug" certainly must qualify for the mandatory minimum given the over 300k in oxycontin (hillbilly heroin) that he purchased illegally.

Can't this infamous drug trafficker be stopped?

MP|1.30.06 @ 10:38AM|#

Pain expert Russell Portenoy easily rebutted this claim, noting that patients who develop tolerance to opioids may end up taking doses that seem enormous to people unfamiliar with long-term pain treatment--doses that would kill someone unaccustomed to narcotics.

Russell Portenoy never directly stated that it was plausible that Paey was able to consume all of the pills himself. Although his statement implied that, Morley Safer should have pressed him to be specific about Paey.

All in all though, I though the piece was excellent. Unfortunately, it still didn't convince my wife that the prescription requirement for certain drugs was far more costly than it was worth. sigh...

|1.30.06 @ 10:46AM|#

The ironic thing is that the state is now providing Mr. Peay with a morphine pump to manage his pain--can't they tell how much morphine he needs to do that and extrapolate??? Or, better yet--why couldn't he get a morphine pump on the outside? It sounds like it works better than the pills anyway. Outrageous drug war story.

|1.30.06 @ 10:47AM|#

MP,Your statement about your wife is not clear to me. The phrase "certain drugs" refers to all drugs that are behind a prescription wall, or cetain drugs that are, but should not be given the cost analysis?

Are you advocating the complete dismantling of any prescription system and complete legalization, or a much relaxed system that weighs those benefits from a scientific cost/benefit analysis without political pressures. Obviously, it is plausible that the former could be containsed within the former, but I think it is unlikely.

MP|1.30.06 @ 10:59AM|#

Are you advocating the complete dismantling of any prescription system and complete legalization, or a much relaxed system that weighs those benefits from a scientific cost/benefit analysis without political pressures. Obviously, it is plausible that the former could be containsed within the former, but I think it is unlikely.

"certain drugs" was referring to the drugs that are only available via prescription.

Other than drugs that have a significant detrimental impact to society beyond the individual user (such as the over-usage of anti-biotics leading to stronger bacterium which is bad for society as a whole), yes, I think the whole prescription system should be dismantled. (And yes, I know a similar argument is used to justify the WoD, but what I say is "bad for society" has a scientific, not social science, basis.)

fyodor|1.30.06 @ 11:15AM|#

Florida's mandatory minimum sentence for drug trafficking applies to illegal possession of narcotics above an arbitrarily defined weight threshold

Ah yes. Not only is intent to distribute defined by the amount you possess (presumption of innocence, anyone?), but the threshold is determined by weight, a standard that may or may not bear any relevance at all years after the applicable statute was passed. Well, we wouldn't want to make prosecutors have to actually prove their case, would we? That would just make things too difficult on the poor darlings, especially since the drug trade has that damnable characteristic of there being no actual victim who might actually complain and finger someone when a crime has been committed. Funny that.

Timothy|1.30.06 @ 11:24AM|#

Pain expert Russell Portenoy easily rebutted this claim, noting that patients who develop tolerance to opioids may end up taking doses that seem enormous to people unfamiliar with long-term pain treatment--doses that would kill someone unaccustomed to narcotics.

Anybody familiar with boozeahol should be able to extrapolate this much. My second term in college I ended up in the hospital with alcohol poisoning from an amount of booze that later on I regularly consumed before doing my stats homework.

Freshman year I was wholly unfamiliar and had no tolerance, my senior year I was basically a functional drunk who'd consume an entire fifth of whiskey and a case of beer at a go, try to convince one of his roommate's hot friends to sleep with him, puke into his tub, and proceed to pass out on the floor.

Seems like the same sort of logic would hold true for other drugs.

|1.30.06 @ 11:25AM|#

MP, I think you're got it exactly backwards. If the prescription regime were stronger - as in, doctors given greater lattitude by the state and state medical boards empowered to crack down faster and harder on docs whose practices violated sound medical (as opposed to political) practice, we wouldn't be in this mess.

Pain doctors wouldn't be afraid to prescribe high doses for sound medical reasons, because they would feel that the state board had their back. The cops wouldn't want to pursue cases against doctors who are operating according to the guidelines of the state boards, because the cases wouldn't go anywhere.

|1.30.06 @ 11:37AM|#

it seems year in and year out, another "drug" abuse craze hits out country...last year heroin, this year "scripts", and ALWAYS with the money-maker, cannabis...those 750,000 arrests for simple possesion every year keep law enforcement coppers nicely padded and taxpayer free...pretty sad, but, in jeb bush land, would you expect anything else ?

|1.30.06 @ 11:39AM|#

joe,

What happens when the guidelines of the state boards run afoul of federal controlled substances statutes? Really, I mean, would it make sense for the state boards to even think about making guidelines that didn't jive with federal laws? No. So, in effect, your suggestion would result in doctors having LESS latitude, not more, because they would have to comply, indirectly, with federal controlled substances laws. We might have less federal cases against doctors, but that's only because they would be running afoul of federal laws less often. And in the end, the ones who lose are the patients in pain, who are now at the sole mercy of federal agents and their draconian restrictions.

If you honestly think that the feds would defer judgment to state medical boards, even when their decisions ARE medically sound, then you're living in a dream world. So the medical boards would inevitably comply with all federal restrictions. Your idea wouldn't remove politics from the equation, all it would do is make sure that there is less confusion when it comes to complying with draconian fed drug statutes.

|1.30.06 @ 11:39AM|#

joe-

I hear what you're saying, but ethical doctors trying to help legitimately sick patients are only half the story. The other half of the story is that there are a lot of people out there who are trying to scam doctors to obtain medicine for recreational use. As long as they can only get those drugs from a gatekeeper, the doctors will be besieged from all sides: Investigators trying to make sure the docs aren't prescribing to addicts, and addicts who waste the doctors' time. I hear it all the time from relatives who work in hospitals and clinics, how they get so many drug seekers wasting their time.

The easiest way to relieve the burden on doctors is to make it so that addicts no longer come to them for pills.

|1.30.06 @ 11:40AM|#

HA! This is just more proof of the left-wing MSM's attempt to erode morality and decency in this country!


If Paey were really an American, he'd just suck it up and deal with the pain instead of resorting to getting "high" to deal with it.

|1.30.06 @ 11:52AM|#

Seems like the same sort of logic would hold true for other drugs.

It's actually a different logic with opiates. A human's tolerance for alcohol can't increase past a certain point. An alcoholic who drinks a bottle of whiskey a day one year won't be drinking 50 bottles a day a year later. With opiates, however, this does happen, which is why Paey was taking enough drugs to send a whole village of novice users to the land of nod.

Anyone else notice how shamelessly the prosecutor held Paey's refusal to cop a plea against him? "The man wouldn't play the game so we threw the book at him." Sickening.

|1.30.06 @ 11:59AM|#

Evan,

"What happens when the guidelines of the state boards run afoul of federal controlled substances statutes?" As we all just learned in the Oregon assisted suicide case, the CSA contains a blanket exception for drugs administered or posessed for a "legitimate medical purpose," and the states are allowed to define "legitimate medical purpose" for themselves. My "dream world" is the one upheld by a recent Supreme Court decision.

Ultimately, thoreau, you are correct - the answer is to end the Drug War. But in practical terms, I think it might be wise to a have a Plan B, just in case Plan A takes a little while. Plan B, having the "investigators" who keep track of doctors' prescriptions be actual doctors who know something about medical practice and haven't dedicated their lives to making drug arrests, would seem to be a smart step at this point.

fyodor|1.30.06 @ 12:00PM|#

I don't mean this to be snarky, but joe's solution envisions a world in which a political process ("state medical boards empowered to crack down faster and harder") can be free of political pressures and will thus only do what they deem medically correct. In reality, however, political entities, which a state medical board clearly is, inevitably operate on political pressures. Sure, the pressures are less direct than they are on elected officials, but they are still very much there, in numerous forms.

|1.30.06 @ 12:01PM|#

It was also nice how the prosecutor insinuated Paey was dealing drugs without a shred of evidence (even after three months of surveillance). A crippled junkie is dealing mountains of pills out of his house but Florida's finest can't document a single transaction. Bullshit.

|1.30.06 @ 12:01PM|#

*cough* ATF *cough*

|1.30.06 @ 12:06PM|#

joe-

I'm all in favor of having a plan B, but I'm not optimistic about how well it will work. Even if responsible doctors are allowed to practice medicine with little fear of repercussions, they will still be besieged by addicts. And with that many people seeking pain pills, somebody will come along to help them get their fix. When that person is eventually busted, the immediate question will be why he was allowed to get away with it for as long as he did. Especially if his slide into illegal practices was a gradual one. He starts with some questionable calls in gray areas, and the oversight people give him the benefit of the doubt. Then he makes a few more dubious calls, and starts covering his tracks. Eventually it snowballs and he's caught.

And then there's the outcry. And everybody decides that your envisioned system of enlightened and minimalist oversight is inadequate. So we're back to much heavier regulation of medicine.

I'm all in favor of your idea if it can work. I'm just a pessimist.

fyodor|1.30.06 @ 12:07PM|#

Still, joe's solution may be incrementally better than arbitrary and inflexible limits setup at the legislative level. Choose your poison, I guess.

|1.30.06 @ 12:18PM|#

He didn't take the plea because he thought he could beat the rap. He gambled that the jury would sympathize with him, and he lost. I look at this case, and so do a lot of you, and think it's a slam dunk he'd be acquited, but I don't know anything about the trial. Wouldn't the defense lawyer have said something like "if you convict, this handicapped husband and father of two will be automatically sent to prison for 25 years" and wouldn't he have brought in his own medical experts to say it was possible for him to consume so many pills himself. Prosecuters can be overzealous a-holes who live in a black and white world, but isn't Paey and his lawyer to blame, too?

|1.30.06 @ 12:18PM|#

fyodor, thoreau,

I realize that state medical boards will endure pressure to politicize their medical judgements - especially when the inevitable case thoreau describes comes about. The reason I think these boards will do a better job protecting honest doctors is because they have both the interest and the ability to push back against this pressure, due to their credibility on the issue of responsible medical treatment, and their desire to keep politicians' dirty little paws off of their turf. If the state medical board can point to a pile of disciplinary actions it has taken, it will be in a much better position to ward off a law enforcement takeover of physician oversight.

|1.30.06 @ 12:19PM|#

As we all just learned in the Oregon assisted suicide case, the CSA contains a blanket exception for drugs administered or posessed for a "legitimate medical purpose," and the states are allowed to define "legitimate medical purpose" for themselves.

I'm not so sure that we learned that the states can (or at least not that only the states can) as much as we learned that the US Attorney General can't. The decision certainly did not invalidate Raich.

|1.30.06 @ 12:32PM|#

"He didn't take the plea because he thought he could beat the rap. He gambled that the jury would sympathize with him, and he lost."

As Paey mentioned in the 60 Minutes piece, if he took the plea deal he would be branded with a drug conviction and incapable of receiving pain medication for the rest of his life. He was thus faced with the choice constant agony and freedom or incarceration with pain medication, with the hope he'd eventually win on appeal. Although both choices are godawful, to me Peay took the only reasonable option. Sad commentary of our lost Drug War.

|1.30.06 @ 12:34PM|#

But wasn't Joe's solution basically what the situation used to be, before the current slide down the slippery slope? And even assuming the federal government would give up one bit of its power - ha! - there are two problems.

First, as thoreau mentioned, there's the flooding of the healthcare system by non-medical users - which just seems like waste. Second, there's the basic freedom thing - why can't people get high if they want to?

I think that MP's stance - a prescription system reserved for drugs that have negative externalities such as antibiotics, and everything else available over-the-counter - is probably the best solution. Unfortunately, there's also a potential slippery slope there - such a system might start out only controlling drugs with real demonstrable negative externalities, but the government would soon be back to controlling everything. That's why I say the prescription system should be totally abolished. Then while we're at it, demolish the FDA headquarters and use the rubble to build a statue of Hippocrates.

"Wouldn't the defense lawyer have said something like "if you convict, this handicapped husband and father of two will be automatically sent to prison for 25 years"
I don't think so - I'm pretty sure that at trial a defence lawyer can't bring up the issue of a mandatory minimum sentence as part of their argument to the jury.

|1.30.06 @ 12:54PM|#

Wouldn't the defense lawyer have said something like "if you convict, this handicapped husband and father of two will be automatically sent to prison for 25 years"

The jury is there to determine whether or not the party is guilty based on the evidence presented. The sentence the defendant faces is not part of that equation. The problem here is the "mandatory minimum" sentencing nonsense, which usurps the judge's power and applies a blanket standard which in this case is completely heavy-handed and inappropriate. I don't know how that prosecutor sleeps at night.

|1.30.06 @ 1:14PM|#

I don't know how that prosecutor sleeps at night.

Prescription sleeping pills.

daksya|1.30.06 @ 1:15PM|#

e - It's actually a different logic with opiates. A human's tolerance for alcohol can't increase past a certain point.

It's the same logic with opiates. Tolerance stabilizes after a period of use. The only difference is the relative magnitude required to overcome it.

|1.30.06 @ 3:20PM|#

>wouldn't he have brought in his own medical experts to say it was
>possible for him to consume so many pills himself.

Sure, assuming you could find an expert who wasn't worried the prosecutor would be looking at prosecuting them right after they said that.

|1.30.06 @ 3:23PM|#

"I STILL cannot understand why/how "drug" Limbaugh is still free (well actually voluntarilly confined to his own private insane asylum), is Florida really that corrupt?

"Drug" certainly must qualify for the mandatory minimum given the over 300k in oxycontin (hillbilly heroin) that he purchased illegally."

Damn, I hate this! I actually agree with Amazingdrx.

fyodor|1.30.06 @ 3:36PM|#

Eion,

To be more fair to joe than he probably ever would be to me, he seems to acknowledge that "ending the Drug War" is the best solution ultimately (not sure if by that he means he would also end the prescription system as we currently know it, so I'll give him that benefit of the doubt) but advocates the wise "state medical board" with teeth program as a more realisticly realizable alternative.

That said, what about it joe, is this what we used to have before the slippery slope was slid down? I guess one could always advocate returning to that point, as long as one realizes that it's likely just a matter of time before we get back to the bad place we're at now. But this is why some libertarians see little use to the Plan B of a more beneficient government and get called wackjobs who won't compromise, cause even if you push with all your might to get Nice Government, it's only a matter of time till you're back with Bad Ugly Nasty Monstrous Government. Maybe it's still worth it to get government to be Nice if just for a little while, but I certainly understand why that might seem futile as well.

|1.30.06 @ 3:54PM|#

fyodor,

I am not an expert in this area, but I believe the heart of my proposal - keeping the cops out unless the state boards chose to forward the case onto them - would be a novelty, not a return to a past system.

I also don't pretend to have worked through the issues to an even remotely consistent harmonization of my positions on prescription drugs and ending the drug war. How does treating prescription drugs like drugs, and recreational drugs like supplements, grab you?

fyodor|1.30.06 @ 3:59PM|#

How does treating prescription drugs like drugs, and recreational drugs like supplements, grab you?

Offhand, I'd call it an improvement!

Except for the flood of "supplement" jokes...

|1.30.06 @ 4:29PM|#

Ok, I'm no lawyer, but I think I understand now that you can't really bring sentencing into a defense, and also, that it might be difficult to find and/or pay for an expert medical witness willing to testify on your behalf about the quantity of painkillers you are consuming. No win all-around.

Also, isn't the Rush case still open?

Timothy|1.30.06 @ 4:34PM|#

How does treating prescription drugs like drugs, and recreational drugs like supplements, grab you?

Badly if "Bob" will be starring in ads for more products.

fyodor|1.30.06 @ 4:41PM|#

if "Bob" will be starring in ads for more products.

More? Besides Subgenius products? I suppose certain things could become Subgenius products...

Amy Phillips|1.30.06 @ 4:55PM|#

"As we all just learned in the Oregon assisted suicide case, the CSA contains a blanket exception for drugs administered or posessed for a "legitimate medical purpose," and the states are allowed to define 'legitimate medical purpose' for themselves. My 'dream world' is the one upheld by a recent Supreme Court decision."

No, what the SC said was that Congress has not yet passed a law that allows the Attorney General to define "legitimate medical purpose." The Oregon decision did not say that Congress was constitutionally prohibited from doing so, and indeed, under the Raich decision, it seems that such a federal law would be allowed to supersede state laws defining the term differently.

|1.30.06 @ 6:09PM|#

Personal anecdote (FWIW) -

I've had several serious medical issues that have put me on pain medication for months at a time, up to an including the morphine drip.

Not that my personal anecdote means anything, but this past week I was in need of more pain medication to by some time prior to seeing the doctor again.

After going a few rounds with the doctor and the receptionist to prove I didn't need an appointment because I wasn't an addict I was given 16 pills which will hardly last me two days due to the amount I need over the normal individual.

As an adult, I find it humiliating that I have to explain my need for medication to people that know nothing about my pain issues (even after explaining them) or can grasp my complete medical history (even after explaining it), then I still have to cry about my pain until they finally give in (which they did, but as noted sparingly so).

And keep in mind, the doctors are somewhat sympathetic to me - they are simply scared of two things - One - I might be an addict and Two - even if they prescribe me what I want, the pharmacist will ask why so much? And possibly report us both anyway.

The WOD not only treats me like a child without any knowledge about my medical needs at all, but also the doctors, pharmacists, and anyone else involved.

My hope is, thanks to people like Paey, that by the time my child is in need or if she ever needs such medications, she won't have to beg and plead to get what she needs.

Wishful thinking says that hopefully by the time I leave this rock, I'll be able to do the same.

nmg|1.30.06 @ 6:13PM|#

why on earth would you make a distinction between drugs to determine if they are "prescription" or "supplement". What about drugs that are used for both?

How is it that the state could have no interest in my recreational drug use but at the same time have an intense interest in how I treat a medical condition? "Shoot all the heroin you like but you better get written permission before trying that cancer treatment". hunh?

Why? This makes no sense at all to me.

nmg

|1.30.06 @ 6:13PM|#

Well, I know *I* certainly feel safer with this guy behind bars...

nmg|1.30.06 @ 6:15PM|#

Actually, such a policy would translate more accurately as:

"Shoot all the heroin you like but you better get written permission before trying that cancer treatment, unless you just want to get high from it, then that's ok."

nmg

|1.30.06 @ 8:14PM|#

Amy is right, Congress could pass a law giving the feds the authority to define "legitimate medical purposes," and it would probably be upheld.

But I doubt they would. It would be too unpopular. Why haven't the Republicans brought it up already?

|1.30.06 @ 8:19PM|#

nmg,

They wouldn't be regulating drugs. They'd be regulating prescriptions - ie, the practice of medicine.

Robert|1.30.06 @ 11:16PM|#

I've noted elsewhere that other countries with more or less the same kinds of narcotics laws as everywhere still don't have the problem of undertreatment of pain as in the USA. Some have traced that to the way the USA skimmed Europe of Calvinism, but I think it has more to do with perceived lack of motivation in countries with socialized medicine for doctors to be pill pushers. That is, they trust their doctors there more because they ban entrepreneurship by doctors.

As to Limbaugh, I've never believed it. An unnamed source alleges it, he "confesses" on air, claims to go to rehab -- it's all a publicity stunt and cover for having neutralized his position on narcotics issues. Nor do I believe he went deaf, got a cochlear implant, and got an outstandingly good result from it. I think he just stopped paying att'n to phoners-in for a while, and later laid it to hearing loss!

Finally, the "legitimate medical purpose" phrase is not in the applicable portion of the federal CSA, but in a regulation adopted by the DEA, and that regulation itself hasn't been litigated. The applicable provision of the CSA simply says "professional practice" and leaves open-ended the types of practitioners a jurisdiction may license. So theoretically a state could license getting-high practitioners to dispense drugs, as in the old Galiber bill in NY. That's not to say Congress couldn't amend the CSA to outlaw that sort of thing, but only that the CSA as now written does not.

Note also that there was no action by the att'y gen'l regarding use of federally controlled substances in administering a death penalty.

Robert

nmg|1.31.06 @ 10:27AM|#

ummm... again... why? Why regulate the "practice of medicine". I don't see how you benefit from regulating use of drugs for treatment of medical conditions but not the use of drugs for recreation.

nmg

|1.31.06 @ 11:49AM|#

nmg,

People going to doctors for treatment can be confident that those doctors are being held to high professional standards.

nmg|1.31.06 @ 1:13PM|#

If your concern is just that people can be aware that their doctor is adhereing to high professional standards, there are myriad ways for consumers to determine this without having to resort to the coercive, heavy handed, one-size fits all prescription system.

And what if I determine for myself that I want to use a certain medication? Under your system all I have to do is claim I want to use it for recreation and the govt leaves me alone? Again, that doesn't make much sense. Just let people use the drugs they want to use for whatever reason they see fit.

nmg

|1.31.06 @ 1:16PM|#

If there had been one person on the jury with half a brain (I'm sure the prosecution made sure there wasn't) they would have practiced jury nullification and found this man not guilty. Most of the founding fathers wrote on this subject and basically said that it's not a citizens right to practice jury nullification for an unjust law, It is a citizens duty! Problem is if the prosecutor thinks that you're intelligent and principled you have seen your last jury duty summons. They only want the sheep that they think can be led.