The Politics of Pain

Over at Reason, Jacob Sullum notes the similarities between the the Rush Limbaugh case and the sad case of Richard Paey

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.

So why the disparity in sentences? Limbaugh copped to Drug War rhetoric. He admitted addiction, didn’t question the law, and did what he was told. In contrast, Paey refused to admit to any crime, and instisted on his right to find relief from his pain. Sullum writes:

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.

Paey’s prosecutors have admitted as much. Here’s John Tierney on Paey from July of last year:

Scott Andringa, the prosecutor in the case, acknowledged that the 25-year mandatory penalty was harsh, but he said Mr. Paey was to blame for refusing a plea bargain that would have kept him out of jail.

In other words, Paey—a paraplegic with multiple sclerosis—was punished with an unspeakably cruel 25-year sentence in a maximum-security prison not for selling illicit drugs, but for “stubbornly” insisting on his right to a jury trial.

Meanwhile, the DEA’s misguided war on painkillers continues. Last week, the Third Circuit denied the appeal of Pittsburgh doctor Bernard Rottschaefer, convicted of overprescribing painkillers, despite the fact that key prosecution witnesses have since admitted to committing perjury on the stand. The 63-year old Rottschaefer—a man with no previous criminal record and a spotless medical record—will serve his 6 1/2 year sentence at a maximum security prison, with a population of men convicted of sex crimes, trafficking in hard drugs, and murder.