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December 10, 2006 - St. Petersburg Times (FL)

Editorial: A Drug Sentence Without Justice

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Florida's drug trafficking laws were stretched beyond their logical limit when they were applied to Richard Paey, a Pasco County man now serving a 25-year mandatory minimum sentence.

Paey suffers from debilitating and chronic pain, and he may have violated the law in order to obtain more pain medication. But Paey was convicted of a crime designed to put away drug kingpins and sentenced accordingly. It is a sentence that should not stand.

This sentiment was well articulated in a stinging opinion by Associate Judge James Seals in the 2nd District Court of Appeal case of Paey vs. Florida, in which Paey appealed his sentence as cruel and unusual punishment. Unfortunately, Seals was writing in the dissent.

Two members of the three-member panel voted to uphold Paey's sentence in a ruling Wednesday that said there was no legal error.

The court said that while conditions surrounding Paey's case would "naturally evoke sympathy," it was the executive branch that should be appealed to for a pardon or commutation of sentence, not the courts.

"Mr. Paey's argument about his sentences does not fall on deaf ears, but it falls on the wrong ears," wrote Judge Douglas Wallace for the majority.

There is no doubt that Paey's case is a prime candidate for executive clemency, and the governor and state clemency board should grant it. Paey applied immediately following the court's ruling.

But the court showed remarkable indifference to the overzealous prosecution and miscarriage of justice to which Paey has been subjected.

Due to a catastrophic auto accident and botched back surgery, Paey, who uses a wheelchair, lives with unremitting back pain.

He came to the attention of law enforcement when he filled prescriptions for 700 oxycodone pills and large quantities of other pain relief medications within 36 days. While Paey said his doctor okayed his treatment, there was evidence that suggested Paey tampered with the prescriptions.

But there is no evidence Paey intended to do anything with the medicine other than relieve his own pain. Yet the state charged him under a draconian drug trafficking law.

Seals laid out the absurdity of this result: "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 50 oxycodone pills which he intended to sell to children waiting outside, and then stabbed the pharmacist."

Seals said that he would quash the mandatory sentence as cruel and unusual, and send the case back for resentencing based on Paey's actual acts. That would have been a proper result. But if the courts won't afford Paey a sensible, fitting and just sentence, then the governor and clemency board have a moral duty to do so.

When the governor's daughter, Noelle Bush, was found guilty of prescription tampering, she received a referral to a drug treatment program. That kind of proportionate sentencing and balance between a defendant's guilt and punishment also should apply here.

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