Pill Penalty Puzzle

Should Rush Limbaugh be grateful he didn't get 25 years?

Rush Limbaugh's defenders say he never would have been investigated for prescription fraud if he weren't a famous conservative commentator, and they're probably right. For one thing, it's unlikely The National Enquirer would have been interested in the pill popping habits of an average joe, or even an average millionaire.

Yet the talk radio titan's detractors also have a point when they complain that he got off with a slap on the wrist after obtaining thousands of painkillers under false pretenses, a result they find especially galling in light of his general support for the war on drugs and his specific support for incarcerating drug users. "Perhaps the only way for draconian drug laws to change," says Drug Policy Alliance Executive Director Ethan Nadelmann, "is for people like Limbaugh to join other nonviolent drug offenders behind bars."

One of those nonviolent drug offenders is Richard Paey, who faced allegations remarkably similar to those against Limbaugh. Both men suffered severe back pain for which they underwent unsuccessful surgery, and both were accused of fraudulently obtaining more narcotics than they really needed. But while Limbaugh remains a free man and will not even face criminal charges if he continues to attend drug treatment for the next 18 months (something he was planning to do anyway), Paey is serving a 25-year sentence in a Florida prison.

Limbaugh was accused of "doctor shopping," getting painkillers from several physicians who were not aware of the other prescriptions. Although he denies the charge, he admits he became addicted to the painkillers, which by definition means he was taking them for reasons the law does not recognize as medically legitimate–as an "escape" (his word) from stress or unhappiness.

Paey, who moved to Florida from New Jersey, was accused of forging painkiller prescriptions from his New Jersey doctor. The doctor, who could have faced criminal charges if the government decided he was dispensing narcotics too freely, at first confirmed that the prescriptions were legitimate but later changed his story.

There was no evidence that Limbaugh or Paey sold painkillers on the black market, and both men insisted they had done nothing illegal. But unlike Limbaugh, who publicly confessed to a drug problem and voluntarily entered treatment, Paey said he really did need large quantities of narcotics to treat his physical symptoms, a situation that is not uncommon among patients who suffer chronic pain for years and develop tolerance to the analgesic effect of their medicine.

Paey's refusal to call himself an addict, more than Limbaugh's celebrity, seems to be the crucial factor that led to such dramatically different outcomes in these two cases, both of which were handled by Florida prosecutors under Florida law. Like Limbaugh, Paey was initially offered an arrangement through which he could have avoided jail–although, unlike Limbaugh, he would have had to plead guilty.

After Limbaugh's deal was announced, a spokesman for the Palm Beach County State Attorney's Office explained that "it's a diversion specifically for first-time offenders with no prior criminal history or arrest." He called it "standard for someone who is dealing with their addiction."

But because Paey insisted there was no addiction to deal with, the prosecution threw the book at him, charging him not just with prescription fraud but with drug trafficking. That charge, which carried a mandatory minimum sentence of 25 years, was based entirely on the quantity of pills involved, a standard under which Limbaugh also qualifies as a drug trafficker–which is presumably why the single charge filed against him refers to just 40 pills, rather than the thousands he reportedly obtained.

I'm not saying Limbaugh should be grateful he's not in prison. He is understandably angry about the way his private life became fodder for prosecutors and the press. But maybe the next time he goes on a tear about prosecutorial abuses, he could spare a few words for Richard Paey.