Failing Upward in Criminal Justice

The prosecutor who wrongly put a paraplegic in prison wants to be a judge.

When the SWAT team came for Richard Paey in 1997, officers battered down the front door of the Florida home he shared with his wife and their two children. Paey is a paraplegic who uses a wheelchair after a car accident and a botched back surgery. He also suffers from multiple sclerosis. Paey was accused of distributing the medication he used to treat his chronic pain, even though there was no evidence he had sold or given away a single pill. Thanks to Florida's draconian drug laws, he was eventually convicted and sentenced to 25 years in prison.

Paey's prosecution was an outrage, and it generated significant media attention. In 2007, after Paey had served nearly four years of his sentence, Florida Gov. Charlie Crist gave him a full pardon. Yet Scott Andringa, who prosecuted the case as an assistant state attorney in New Port Richey, has never expressed a hint of remorse. In fact, Andringa, now a defense attorney in private practice, brags about his efforts to imprison Paey on his professional website, noting that he "was the prosecutor assigned to a controversial drug trafficking case that was later profiled on 60 Minutes, Nightline, and in the New York Times."

And now Andringa wants to be a judge. In December he announced his candidacy in Pinellas County's 2012 elections. The position currently is held by Andringa's father, who is retiring. As of this writing, no one has filed to oppose him.

At the time of his arrest, Paey was undergoing high-dose opioid therapy, a relatively new form of treatment for chronic pain that titrates doses upward as a patient develops tolerance. The tolerance eventually plateaus, but at that point the patient is taking large doses of narcotics every day, enough to kill someone who has not built up the same tolerance. Paey was initially under the care of a New Jersey physician, but he found it difficult to find treatment when his family moved to Florida, a state overcome by anti-opioid hysteria. Depending on whom you believe, either Paey's New Jersey doctor illegally sent him several prescriptions to continue his treatment or Paey forged those prescriptions. In any case, a local pharmacist, alarmed at the volume of medication Paey was taking, tipped off the Pasco County Sheriff's Office.

Although Andringa has conceded he had no evidence Paey was selling or giving away medication, Florida law allowed him to charge Paey with distribution because of the alleged forgeries and the volume of medication he possessed. 

But simply because the law allows a charge does not mean it is merited or in the interest of justice. And here's where Andringa's discretion comes into question. Over the years, Andringa has said he is "proud" of putting Richard Paey in prison, that he has "no personal or professional" regret about the case, and that he's certain his office "did the right thing."

Paey's time in prison was rough. He spent more than 30 days in solitary confinement—retaliation, he believes, for telling his story to New York Times columnist John Tierney. When I interviewed him in 2007, he described systematic sleep deprivation, psychological abuse, and jail cells with little air circulation where the heat index could top 100 degrees.

Andringa did not have to file distribution charges, and he could have asked the judge to waive the mandatory minimum 25-year sentence in Paey's case. He didn't. He would later tell Tampa's Weekly Planet, "As a [prosecutor], you normally charge the highest crime that you can prove." That's one way of approaching the job. Another would be to charge someone with a crime only when doing so serves justice. (Andringa did not respond to my request for comment.)

The injustice of treating Paey as a drug trafficker is clear from the enormous disparity between the sentence he received and the punishment he would have gotten under a plea deal Andringa offered him. Paey would have received only probation and counseling if he admitted he was a drug addict and pleaded guilty to attempted drug distribution. Paey refused. He wasn't a dealer and, more important to him, he wasn't an addict. He was a patient. He was no more addicted to pain medication than a diabetic is to insulin. The pills merely helped him live a more normal life.

Andringa still could have gone to trial only on the attempted distribution charge, or he could have prosecuted Paey for forgery. He could have chosen not to prosecute Paey at all. Instead, he threw the book at Paey—punishment for his obstinacy. Andringa told the Weekly Planet, "I understand someone wanting to have their day in court. But they have to accept that with that there's a risk, and in the case of Richard Paey it was a 25-year mandatory minimum, which he knowingly and willingly accepted."

The state tried Paey three times before it got a conviction, and then only after the jury foreman told fellow jurors that the sentence would be no worse than probation. Andringa used some form of the phrase drug addict eight times in his closing argument. He charged Paey as a trafficker but was clearly trying him for being an addict. Even assuming the facts most unfavorable to Paey, he was neither. At worst, he was guilty of forging prescriptions, not to get high but to get the medical treatment he needed.

That he required such treatment is not in dispute. While in prison, he received morphine via a subdermal pump. "It became a comedy of bureaucracies," Paey told me. "One agency prosecutes me for taking too much medication. And that was their explanation—that my dose was too high for one person to be taking, therefore I must be selling it.…Then I get to prison, and the doctors examine my records and my medical history, and they decide that as doctors, they have to give me this medication…in higher doses than what I'd been getting before."

Andringa recently started a blog to coincide with his campaign for judge. In a post titled "Thoughts About 'The System,'?" he chastises those who say the criminal justice system is flawed. Andringa explains that "The System" is run by "a group of people who are as capable, or fallible, as any other group of people one might find." He adds, "When mistakes are made, time is wasted, scarce resources are squandered and the primary and axiomatic mission of the criminal justice system; to see that justice is done, is thwarted…I believe the appropriate question is not whether 'The System' is flawed, but whether one or more of the people involved has failed; as we all will from time to time."

It's an eloquent (if peculiarly punctuated) passage, but it isn't accurate. A system that identifies, compensates for, and attempts to correct mistakes would be what Andringa describes: a good system complicated by human failing. A system that rewards human failing is broken.

Scott Andringa's defense of "The System" is actually a strong argument for keeping Scott Andringa far away from a judge's gavel. Andringa not only squandered scarce resources in his prosecution of Paey; he ignored his responsibility "to see that justice is done." He continues to fail by refusing to acknowledge that the case was a travesty of justice. If he is rewarded with a promotion to judge, a position where he'll be charged with ensuring that others accused of crimes are treated fairly, then "The System" will have failed. 

Radley Balko is a senior editor at reason.