Coyote Blog

Richard Paey lost his appeal, and so will likely spend the next 25 years in jail for self-medicating pain relievers.  All parties, both prosecution and defense, agreed the painkillers were solely for his use and no drug distribution was involved.  Of course, its for his own good.... somehow or other.

For most of this country's history, prison was for people being punished for hurting others.  Their incarceration protected the rest of society from them.  Today, though, we are increasingly filling the prisons with people whose actions affected only themselves.  In particular, thousands languish in jail for petty drug possession charges, crimes that if they hurt anyone, hurt only themselves.  (Drug war proponents argue that few go to jail for marijuana use.  Sortof.  Actually, only a small percentage of marijuana possession arrests go to jail,  but there are three quarters of a million marijuana arrests every year.  A small percentage of a big number is still a big number)

I am reminded of the old George Carlin joke "do you know the worst thing that can happen to a kid that smokes marijuana?  He can go to jail!"  I find this wholly parallel to Mr. Paey's situation.  The Florida legislature thinks Mr. Paey is ruining his life by using too many painkillers for his, uh, pain.  So their solution is to .. ruin his life even worse, by throwing him in the prison for the rest of his useful life.  Good plan.  Next up: lobotomies for people who still insist on smoking.

This is one of those tough cases made to make judges look bad.  The Florida legislature bent over backwards to make sure that judges had absolutely no discretion in reducing the sentences of people like Mr. Paey.  And the judges acknowledged they were beaten, and would have to let Mr. Paey's sentence stand.  Where are those activist judges when you need them?  Well, there was one in the dissent:

With no competent proof that [Paey] intended to do anything other
than put the drugs into his own body for relief from his persistent and
excruciating pain, the State chose to prosecute him and treat him as a
trafficker in illegal drugs. Instead of recognizing the real problem
and the real behaviors that led to his real crimes and holding him
appropriately accountable, the State decided to bring out the artillery
designed to bring down the drug cartels....

The sentence in this
case for a lone act"”the mere possession of unlawfully obtained medicine
for personal use"”is illogical, absurd, unjust, and unconstitutional...

I
suggest that it is cruel for a man with an undisputed medical need for
a substantial amount of daily medication management to go to prison for
twenty-five years for using self-help means to obtain and amply supply
himself with the medicine he needed. I suggest it is cruel for
government to treat a man whose motivation to offend sprang from urgent
medical problems the same as it would treat a drug smuggler motivated
to obtain personal wealth and power at the expense of the misery
his enterprise brings to others. 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.

Update:  Radley Balko has more stories about ridiculous drug sentencing.  He also has comments on Paey's case:

I'd add only a few of things to Jacob's post
on Richard Paey's horrible story below.  First, Paey's 25-year sentence
stems from two troubling decisions on the part of the prosecutor.
Prosecutor McCabe threw the book at Paey because,  (1) he refused to
admit he's an addict (and he wasn't, any more than a diabetic is
"addicted" to insulin), and (2) because he'd done nothing wrong, he insisted on his constitutional right to a jury trial.  The latter is an absurdity that often creeps up in a modern criminal justice system so rife with plea bargaining.  Charge stacking"and overcharging, combined with the possibility that you could even get extra time even for the charges you're acquitted of, mean that insisting on exercising your right to a trial is usually going to cost you. 

Second, as I noted a few months ago,
when police apprehended this paraplegic, frail man -- along with his
wife and two kids -- they brought the SWAT team in full paramilitary
gear. 

And third, why after Paey talked with New York Times columnist John Tierney
did prison officials moved him to a higher-security prison, several
hours from his family?  Paey says it's because a guard complained
about  what he said to Tierney, and was punished.  If that isn't true,
it'd be interesting to hear the official explanation for
suspiciously-time decision to move Paey to a higher-security facility.

I think it was George Carlin (?) who used to ask "Do you know what the worst thing is that can happen when you smoke marijuana?" His answer was "Get sent to prison".  The implication, which I have always agreed with for most drug use, was that it is insane as a society to try to save someone from doing something bad to himself by ... doing something worse to him.

I think of this whenever I get in a discussion about security responses to 9/11.  The worst thing that can happen to this country as a whole  (as differentiated of course from the individual victims of 9/11) is to turn the country into a police state to combat potential future terrorist actions.  I personally would greatly prefer to live with a 1 in 100,000 chance of being the victim of terrorism than find myself living in an America that has abandoned its constitution.  I wrote more on this topic here.

To this end, though I tend to be slow to believe these type of stories, this one (via Reason) about domestic NSA wiretapping is pretty frightening:

AT&T provided National Security Agency eavesdroppers with full
access to its customers' phone calls, and shunted its customers'
internet traffic to data-mining equipment installed in a secret room in
its San Francisco switching center, according to a former AT&T
worker cooperating in the Electronic Frontier Foundation's lawsuit
against the company....

The source is just one low-level guy, so this story is still pretty soft.  I hope the investigation is allowed to play out.

A number of years ago, I heard someone (George Carlin maybe?  Commenters help!) ask "What's the worst thing that can happen to you if you smoke pot" and the answer was "Get thrown in jail".  The not so subtle message was that the preventative measures applied to prevent marijuana use were worse than the drug use itself.

I would say this fairly summarizes my fears about government responses post 9/11.  Reason's Hit and Run quotes T.J. Rogers along the same lines:

What's the worst thing that Al-Qaida can do to America? We have
probably already seen it. Of course, the government can talk about
bigger things, like the use of weapons of mass destruction, to justify
its use of totalitarian tactics.

I would much rather live as a free man under the highly improbable
threat of another significant Al-Qaida attack than I would as a serf,
spied on by an oppressive government that can jail me secretly, without
charges. If the Patriot Act defines the term "patriot," then I am
certainly not one.

By far, our own government is a bigger threat to our freedom than any possible menace posed by Al-Qaida.

The worst thing the terrorists can do is not another 9/11, but to push America into abandoning its separation of powers and its traditional protections of individual rights.

Reasonable people can disagree whether the Patriot Act goes too far in violating civil rights.  I personally opposed most of the measures in that act when Bill Clinton proposed them the first time and opposed them again this time around.  However, whether I support the Act or not, at least the Act and its provisions are still following the separation of powers script written into our country's DNA:  Congress proposes new administrative powers vis a vis searches, the administration and justice organizations follow the procedures, with certain oversight and appeals rights granted to the courts.

What worries me more than the Patriot Act is the administration's claiming of broader and broader police state powers in the name of combatting terrorism, whether it be detaining people indefinitely without a warrant or eavesdropping on citizens without a warrant.  I understand that both of these programs have practical goals related to security, but I think that most of these goals can still be reached by continuing to respects separation of powers.  Congress must still set the rules for a program such as detention of suspected enemy combatants, and these rules should include a role for the judiciary to review individual cases.