Commentary

Sick

This article appeared on Nationalreview.com on October 21, 2005.
Today, Richard Paey sits in a wheelchair behind high walls and razor wire in a high-security prison near Daytona Beach. Paey is a 46-year-old father of three, and a paraplegic. His condition is the result of a car accident, a botched back surgery, and a case of multiple sclerosis — three setbacks that have left him in a chronic, debilitating state of pain. After moving to Florida from New Jersey, Paey found it increasingly difficult to get prescriptions for the pain medication he needed to function normally — to support his family, and to be a parent to his children.

Paey’s difficulties finding treatment were in large part due to federal- and state-government efforts to prevent the illegal use — or “diversion,” as the feds call it — of prescription pain medicine. Doctors today face fines ,suspension, the loss of license or practice, the seizure of property, or even prison time in the event that drug cops (most of whom have no medical training) decide they are prescribing too many painkillers. As a result, physicians are understandably apprehensive about aggressively treating pain.

Like many pain patients, Paey found himself on the blunt end of such policies. He went from doctor to doctor, looking for someone to give him the medication he needed. By the time he eventually turned to his old New Jersey doctor for help, he had already attracted the attention of Florida drug-control authorities. What happened next is disputed, but it ended with Paey getting arrested, getting his home raided, and eventually getting convicted of drug distribution.

Paey insists his old doctor wrote him the prescriptions he needed. The Florida pharmacists who testified at his trial back him up. But the doctor says he forged the prescriptions. For his part, Paey holds no animus against his former doctor. Cops gave the doctor a devil’s bargain — give Paey up, or face 25-years-to-life imprisonment for the excessive proscribing of painkillers. Paey still maintains the prescriptions were legitimate, but understands why his doctor turned against him.

The larger issue, of course, is why a man who is clearly not an addict (he wasn’t taking the medication to get high) and had a legitimate use for the medication wasn’t given access to what he needed in the first place.

State prosecutors concede there’s no evidence Paey ever sold or gave his medication away. Nevertheless, under draconian drug-war statutes, these prosecutors could pursue distribution charges against him based solely on the amount of medication he possessed (the unauthorized possession of as few as 60 tablets of some pain medications can qualify a person as a “drug trafficker”).

After three trials, Richard Paey was convicted and put in prison for 25 years, effectively a life sentence for someone in his condition. Ironically, the state of Florida now pays for a morphine pump connected to Paey’s spine which delivers the same class of medication at the same doses the state of Florida told him wasn’t necessary, and put him in prison for trying to obtain.

Prosecutors originally offered Paey a plea bargain that would have helped him avoid jail time, but Paey refused, insisting that (a) he did nothing wrong, and (b) even if he had, it shouldn’t be a crime to seek relief from chronic pain. Paey feared that a plea would make other doctors in the state more reluctant to treat pain than they already were.

Publicly, Paey’s prosecutors have conceded that the 25-year sentence was excessive, yet they insist that Paey himself is to blame, citing his refusal to accept a plea agreement. The chilling implication: Paey is serving prison time for drug distribution not because he’s guilty of actually distributing drugs — the state admits as much — but because he insisted on exercising his constitutionally-protected right to a jury trial.

Earlier this year, New York Times columnist John Tierney flew to Florida to interview Paey for a story that ran on July 19. Tierney’s column was sympathetic to Paey’s plight, and sharply critical of the state of Florida.

There is now strong evidence that the state of Florida and prison officials retaliated against Paey for speaking with Tierney. Two weeks after the interview, Paey was moved to a prison facility more than two hours from his wife and family. He was then moved even farther away, some 170 miles, to the Tomoka Correctional Institution near Daytona Beach. Sympathetic prison officials, other inmates, and medical staff have since told Paey he was moved away from his family because the guard who sat in on his interview with Tierney had complained to prison authorities about what Paey had revealed to the journalist.

At about the same time, prison medical staff told Paey that the state of Florida had refused to give permission for them to refill his morphine pump. For Paey, this information was the equivalent of a death sentence. The state of Florida left him to agonize for weeks before finally authorizing the refill, the day before his pump was scheduled to run dry. Here again, Paey has since been given strong reason to believe that the threat to withhold his medication was in retaliation for relaying his story to the New York Times.

Two activist groups representing pain patients — the Pain Relief Network and the November Coalition — have begun a campaign urging Governor Jeb Bush to grant Richard Paey a pardon. Governor Bush should hear them out. Richard Paey is not a criminal. He isn’t a threat to anyone. He’s a tragic figure who has become a political prisoner of America’s allegiance to zero-tolerance drug prohibition.

The Paey case has already cast a good deal of shame on the state of Florida. Just how much more shame his story brings to the state depends on whether political leaders move to rectify his plight, or rather choose simply to ignore him, and continue to intimidate him into spending the rest of his 25-year prison term in silence.

Governor Bush should free Richard Paey. And Florida lawmakers should pass reforms to ensure that drug-war fanaticism no longer prevents sick people from getting the medication they need.

Radley Balko is a policy analyst at the Cato Institute