FLORIDA — A wheelchair-bound man, suffering from paralysis, severe chronic pain, and multiple sclerosis, was raided by masked, gun-wielding agents and ultimately sentenced to 25 years in prison for possessing a one-month supply of his own doctor-prescribed painkillers. Mandatory minimum sentencing laws enabled this to happen, and remain a dangerous threat to the freedom of Americans who have never been accused of a violent crime.
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The case of Richard Paey dates back to 1985. In that year, Paey, a husband and father, became paralyzed after a severe automobile accident. His condition worsened after a botched surgery.
“I felt like my legs were being dipped into a furnace,” Paey explained to CBS. “They were burning, and I couldn’t move them. It’s an intense pain that, over time, will literally drive you to suicide.”
Mr. Paey knows this because he tried to kill himself twice. “And for me, death would have been a form of relief,” he said. Adding to his misery was a diagnosis of multiple sclerosis. His condition made it nearly impossible to do anything except lie in bed, on a steady dose of prescription opiates.
His pharmaceutical regimen included Percocet, Vicodin, and Acetaminophen, and codeine. Because of his agonizing condition, his doses were substantial; Paey would take 2 dozen pills per day. Over time he became tolerant to the drugs, and required larger doses to feel relief. This placed him in a dangerous position of attracting police attention — something doctors were themselves wary of.
“One [doctor] was quite frank and said that I was, in a word, he said, ‘screwed,’” Mr. Paey recalled to CBS’s 60 Minutes. “And I was in that medical nightmare zone where you’ve gone through all the treatments, and nothing works. And what does work, what does help, no one wants to prescribe because it attracts attention, and no one wants that attention.”
Paey and his family, once New Jersey residents, had moved to Florida. His original doctor from New Jersey agreed to continue prescribing the advanced doses of painkillers and deliver them through mail and fax. To ensure that Mr. Paey never ran out of painkillers — an agonizing prospect — the doctor allegedly left some of them undated.
Frequent refills of prescription opiates, combined with a meddling government bent on telling people how to live their lives, provided the conditions necessary to make Mr. Paey an easy and inevitable target of government oppression. The Pasco County Sheriff’s Office and federal DEA agents began monitoring his medical treatments after they were tipped off by a busybody pharmacist.
“They had us under surveillance,” recalled Mr. Paey. “They followed us to church. They followed my wife to work. They interviewed my neighbors. This went on for three months. They found nothing.”
“And we began the legal ordeal that would take 10 years of our lives,” he said.
Despite the months of investigation and observation of the crippled suspect, who obviously posed no threat, police dispatched a SWAT team to arrest him in the middle of the night.
One night in March 1997, the Paey family experienced a military-style raid by masked, gun-wielding law enforcers. The family was terrified when a battering ram was used to breach their door as they slept.
“Four or five guys in black outfits with guns,” described Richard’s wife, Linda. “They bang in, broke down my front door. Two or three came down the hallway, with their guns out, and started checking all the rooms looking for Richard.”
“My first thought was that this is some type of robbery,” remembered Richard, describing the no-knock raid. “There was several men in the bedroom with black ski masks on holding weapons; one pointing at me, telling me not to move or that he was going to shoot me.”
“They searched my wife, they searched me, and then they began going through our home,” which contained two school-aged children, explained Richard.
“Rich kept on saying, ‘Please, call my doctor. Can you call my doctor?’ You know? ‘Everything’s fine. Call my doctor,’” Linda said. “And they said they already have.”
The enforcers, completely disconnected from justice and morality, dragged the bed-bound man off to jail.
Texas Witch Hunt
Despite having no evidence whatsoever that Mr. Paey ever sold or distributed a pill to anyone but himself, prosecutors charged him as a drug trafficker — a 1st degree felony. The law allows this based merely on arbitrary quantities.
“A prescription for 60 of my pills amounted to more than 4 grams,” explained Richard. “That would be enough for a conviction for drug trafficking — one prescription.”
And unfortunately Paey’s longtime friend, Dr. Stephen Nurkiewicz, had sold him out when the tyranny of the state was applied to him. Originally a suspect, Nurkiewicz was himself harassed by the feds and threatened with prison time. He protected himself by denying that he provided Mr. Paey with the 200 prescriptions to help him relieve his pain. Dr. Nurkiewicz became a witness for the prosecution and testified that the prescriptions — all of them — were forgeries.
Prosecutors had enough to hammer Mr. Paey with charges that could lead to the rest of his natural life in prison. Investigators allegedly found blank prescriptions, a doctor’s stamp, and Nurkiewicz’s DEA number written in Paey’s address book. Was it evidence of an evil drug dealer, or a desperate, suffering man who went to great lengths to make sure his pain never went untreated?
Dr. Russell Portnoy, chairman of the Department of Pain Medicine at the Beth Israel Hospital in New York, said during a 60 Minutes interview that chronic pain sufferers will go through extreme lengths to ensure they never suffer a break in their pain treatment.
State prosecutor Scott Andringa led the legal assault on Mr. Paey. While admitting that nobody could prove Paey was a seller, he said he simply did not believe that Paey could require that much pain medication alone.
“Nobody saw him selling,” said Andringa to CBS. “The evidence suggests it, but it doesn’t prove it conclusively. But it is a reasonable inference from the facts that he was selling them, because no person can consume all these pills.”
As far as the state was concerned, even if the pills were legally prescribed, the amounts were unbelievable. “In the prosecutor’s medical opinion, that made me an addict; and my doctor, a pusher,” explained Mr. Paey.
Eager to add a conviction to his record, Andringa offered Paey a plea deal if he would admit guilt to lesser drug charges. It would save the state some work and give Mr. Paey the opportunity to avoid a possible conviction of drug trafficking. But Paey refused to plead guilty, maintaining his innocence.
“There is something worse than living in severe, unrelenting pain. And that’s living in severe, unrelenting pain not getting relief,” Paey related to CBS. “Had I accepted a plea bargain and carried that, a conviction on my record, I would have found it near impossible to get any medication. I didn’t wanna plead guilty to something that I didn’t do.”
So Mr. Paey fought the charges and tried to protect his innocence. And the state coldly threw the book at him.
Cruel and Unusual
The meager checks and balances only went so far to protect Mr. Paey. The unrelenting prosecution spent 3 years working to imprison the disabled man. The first two attempts to prosecute him were thrown out of court; one by a mistrial, the second by procedural error. The third attempt was a different story.
“The prosecutor in my case was incredibly overzealous,” said Paey. “He doesn’t drop cases, is what he explained to us, because he has the power to refile.” And refile, he did.
The prosecution’s case was flimsy and bothered at least one juror. Nurkiewicz himself admitted to sending undated prescriptions to Paey, yet he was never charged thanks to his participation with the prosecution. Nurkiewicz own logbook revealed a record of treating Mr. Paey, yet in court he told another story.
Additionally, the state never bothered to collect handwriting samples from either the Dr. Nurkiewicz or Mr. Paey.
Paey expected justice to prevail in court. He could not have imagined that a jury would actually convict him of 15 counts of prescription forgery, unlawful possession of a controlled substance, and drug trafficking. Under Florida law, mandatory minimum sentencing requirements compel the judge to issue a sentence of at least 25 years in prison.
Dwayne Hillis, the lone holdout juror who believed Paey’s stubborn adherence to his innocence, later admitted deeply regretting his decision to compromise with the other jurors in issuing a guilty verdict. He told the St. Petersburg Times that the jurors wanted to go home, and they were promised that even if found guilty, Paey would suffer no prison time. They were lied to.
“I said, ‘Guilty. Put it on the (verdict). I hope you all can live with yourselves,’” said Hillis. “I just hate myself for what I did.”
Assistant State Attorney Mike Halkitis — in denial about railroading an innocent man — declared after the trial: “It’s unfortunate that anyone has to go to prison, but he’s got no one to blame but Richard Paey. All we wanted to do was get him help.”
And so, on April 16, 2004, Richard Paey was sentenced to 25 years in a state prison, with a fine of $500,000.00. He was shipped off to the Tomoka Correctional Facility in Daytona Beach, Florida.
“Its mandatory, in a drug conviction, you go straight to prison. There is no bail pending appeal,” said Richard. “Had I murdered, had I raped, had I robbed a bank, I would have been entitled to bail.”
Paey later appealed the decision, but the decayed checks and balances failed him. The Florida District Court of Appeals upheld the decision by majority vote. One dissenting voice, Judge James Seals, argued that the punishment of Richard Paey was an example of cruel and unusual punishment:
“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.”
Governor Jeb Bush — a hardened drug warrior who campaigned for a government database to monitor patients’ prescription drug regimen as his number one legislative priority — refused to sign a pardon. Ironically, his own daughter, Noelle, was also found guilty of prescription tampering; she was referred to a drug treatment program, not prison.
Mr. Paey was confined to a tiny cage, left to sleep on a three-inch foam mattress on a steel prison bed. To the best of his ability, he tried not to aggravate his condition. He passed some of his time drawing cartoons; many depicting the injustice he had suffered.
Ironically, once in prison, there was less stigma about treating his chronic pain with high doses of opiates. Paey was hooked directly to a morphine pump, something that he could never have been allowed outside in the ‘free world.’ He was receiving higher doses of painkillers in prison than the amounts which had gotten him in trouble in the first place.
Paey revealed that the prisoners were quite accepting of him. “I never had the fear of violence form any of the other inmates,” said Paey to Radley Balko. “I found I had more fear of some of the officers….”
Paey revealed incidents where he had been assaulted by prison guards, locked for weeks in solitary confinement, and put through torturous sleep deprivation.
“So I was sleeping in my bed at around one o’clock in the morning. The lights were on—the lights are always on—and the shift officers were conducting their “shake down”—which means they come in and go through all of your belongings to search for contraband. It seemed to come out of nowhere, he had a radio in his hand, and he swung it down as hard as he could and he hit my legs with it. If I could have gotten out of bed and hit him, I would have. He said to me, “I just wanted to see if you had feeling in your legs.” He saw the wheelchair next to my bed, and that the sheet was covering my legs.”
Paey languished in prison. His brother Jim revealed, “He’s a very depressed man right now. Very depressed, very angry.”
It was very likely that Richard Paey was going to spend the rest of his life in prison. His story had stirred some degree of controversy in the outside world, and political pressure was mounting to fix the injustice.
Governor Bush never granted Paey a pardon. His successor, Bush’s former attorney general Charlie Crist, yielded to the pressure and made the right decision. Crist, himself a drug warrior, at least had the decency in this one case to sign Paey a full pardon. On September 20, 2007, after three and a half years, Richard Paey was wheeled out of prison a free man.
The draconian laws which allowed a first-time offender — who had committed no violence and had never harmed anyone — to be oppressed by the state for a decade and being carted off to prison, still exist and regularly ruin lives of countless Americans. The cold enforcement of drug prohibition, coupled with the epic mistake of mandatory minimum sentencing, creates a terrible injustice in the United States.
There have been recent attempts to relax Florida’s mandatory sentencing laws, but without popular support these efforts are doomed to fail. As it stands, arbitrary possession of 28 grams of morphine, opium, oxycodone, or hydrocodone in the state of Florida will result in a mandatory sentence of 25 years and $500,000.00 in fines — just like Richard Paey.
Although Mr. Paey, by some miracle, was released, there are injustices beyond imagination taking place because of the War on Drugs. A call for reform must be made to relax or abolish senseless prohibitions and the mandatory sentences that accompany them.