Yesterday Florida's 2nd District Court of Appeal rejected a challenge to the 25-year mandatory minimum sentence received by pain patient Richard Paey for "drug trafficking" that did not involve any trafficking in drugs. As the majority explained, under Florida law "a person need not sell anything to commit the 'trafficking' offense….A person may commit the offense by knowingly being in actual or constructive possession of an enumerated controlled substance in a quantity equal to or greater than a weight designated by statute"—in this case, 28 grams of the narcotic painkiller oxycodone.
The prosecution presented no evidence that Paey distributed the pills to anyone else or planned to do so. All indications were that he obtained the painkillers entirely for his own consumption, and the only real matters of dispute were 1) whether he had obtained them legitimately or through prescription fraud and 2) whether he truly needed them for pain relief, as he insisted, or had become addicted to them in the course of pain treatment, as the prosecutors claimed. But because of the drug trafficking's statute's broad reach, the appeals court concluded, Paey's conviction and sentence were legally appropriate. And although his history of chronic pain and desperate circumstances "naturally evoke sympathy for what he has endured and concern for his future welfare," the court said, his sentence is not so disproportionate that it violates the Eighth Amendment's prohibition of "cruel and unusual punishment" or the Florida Constitution's prohibition of "cruel or unusual punishment."
That conclusion prompted a strong dissent by Judge James H. Seals, who wrote:
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, the State chose to prosecute him and treat him as a trafficker in illegal drugs. Instead of recognizing the real problem and the real behaviors that led to his real crimes and holding him appropriately accountable, the State decided to bring out the artillery designed to bring down the drug cartels….
The sentence in this case for a lone act—the mere possession of unlawfully obtained medicine for personal use—is illogical, absurd, unjust, and unconstitutional…
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 it is cruel for government to treat a man whose motivation to offend sprang from urgent medical problems the same as it would treat a drug smuggler motivated to obtain personal wealth and power at the expense of the misery his enterprise brings to others. 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. I suggest that it is unusual, illogical, and absurd for the prosecution, an agent of the executive branch, to abuse and misuse section 893.135 in the belief that it is doing the will of the legislature and of the people of this state. 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 [a morphine pump] 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.
The majority said Paey's only recourse at this point is to seek clemency from Gov. Jeb Bush: "Mr. Paey's argument about his sentences does not fall on deaf ears, but it falls on the wrong ears." According to A.P., Paey's attorney "immediately wrote to Bush's office about the case." A spokesman for the governor "said the office has received more than 100 letters on Paey's behalf but has not yet received any official clemency request."
State Attorney Bernie McCabe 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," McCabe said. "People can try to couch it some other way all they want, but that's the way it is."
The appeals court claimed "reasonable people might come to different conclusions about the wisdom of the twenty-five-year mandatory minimum sentences that the trial court was required to impose on Mr. Paey." I have to say I really don't think that's true, unless the court had in mind a definition of reasonable as ridiculously broad as the Florida legislature's definition of drug trafficking.
Contact information for Jeb Bush:
400 South Monroe Street
Tallahassee, FL 32399