Mandatory Madness

By Eric Snider, Weekly Planet (Tampa). Posted June 25, 2004.

"You know when you have a toothache and the pain is so severe that you absolutely have to be seen immediately by a dentist?" says the man in the wheelchair. "Imagine if you had to grin and bear it for an undetermined period of time. You can't see straight. You think you'll pass out, and sometimes you do. And sometimes you pray you will."

Richard Paey, chronic pain patient, is describing how bad his body can hurt. He suffers from what is often called "failed back syndrome," an inoperable condition that has sentenced him to a life of pain that most of us hopefully will never have to comprehend. This is not his only sentence. On March 5, he was convicted of 15 counts of drug trafficking, obtaining a controlled substance by fraud and possession of a controlled substance, which earned him a mandatory minimum of 25 years in state prison and a $500,000 fine.

This is what Richard Paey did -- or, more accurately, this is what a jury found Richard Paey (pronounced "Pay") guilty of: fraudulently obtaining prescriptions of Percocet (which contains the opiate oxycodone) and Lortab (which contains another opiate, hydrocodone), each of which exceeded 28 grams.

That's the magic number, 28 grams. Illegally possessing this amount gets you 25 years. It's the same mandatory minimum as 28 grams of heroin.

Richard Paey is the latest poster boy for advocates of chronic pain patients, who say that this legion of silent sufferers -- from nine to 17 percent of adult Americans, according to studies -- face an ongoing culture clash with the War on Drugs.

It's a war that pain patients are losing. The system is topsy-turvy, pain activists say, giving medically uneducated law enforcement the power to decide how much medicine someone is allowed to possess. Further, they maintain that many doctors who prescribe opiates remain anxious about that knock on the door from the law, and can thus become extremely conservative when treating chronic pain.

The drug war has turned cops into docs and docs into cops. Physicians constantly screen for "drug seekers" by looking for certain behaviors. They have taken to urine-testing and interrogating folks who are desperately trying to alleviate their pain. Pain patients often get under-prescribed or turned away, leaving many of them in unnecessary agony. "There's so much suffering," Paey says. "They need a war on pain."

Richard Paey knows agony. One afternoon last month, his muffled words echoed through the dank visitors room at the Pasco County jail. He spoke to me through thick glass. His once-athletic body, ravaged by nearly two decades of intractable pain and five years of multiple sclerosis, sat hunched into a crude wheelchair. Oval, wire-rim glasses framed his piercing brown eyes. His black hair, medium-length, was unkempt, and his moustache could have used a trim. His skin had that particular kind of pale hue that comes with extended periods of indoor confinement.

Paey's discourse ranged from pensive musings to indignant rants. His hands shook. While awaiting assignment to a prison, he said, he spent 23 hours a day in a bed in a small room with only jail-approved reading material. He didn't know this during the interview, but the next day he'd be transferred to a transitional facility in Orlando where the Florida Department of Corrections would figure out what to do with this most unusual inmate.

Paey is not doing time for just the opiates. Each of his Percocet pills contained 5 mg of oxycodone and 325 mg of acetaminophen (Tylenol). For sentencing purposes, though, the latter substance was weighed in as well. Eighty-five of his pills weighed 28 grams. If Paey were sentenced for just the oxycodone, he would've needed 5,600 Percocet tabs to earn a quarter-century behind bars. From January to March of '97, he bought 1,200 from area pharmacies.

This inflated numbers game is just one perplexing fact in the strange and scary case of Richard Paey, 45, husband and father of three, convict. Consider also that Pasco sheriff's deputies surveilled him for weeks and never found any evidence that he sold a single pill. Yet the state attorney's office charged him with trafficking -- because it could. In Florida, you can be charged with trafficking certain drugs, oxycodone and hydrocodone included, without actually peddling them. You merely need to possess them illegally.

For its part, the State Attorney's Office in Pasco offered Paey several plea deals -- including, early on, house arrest and probation, then shorter prison terms. For various reasons, each deal went south. Some onlookers have characterized Paey as stubborn, saying that he put one foot in a prison cell by not jumping at the state's plea offers. Paey came close to cutting a deal several times, mostly at the urging of his wife, Linda, and his lawyer, but his heart wasn't in it. Paey has maintained all along that he did nothing criminal, that he was only medicating his own severe pain, which required large doses, and that his scripts -- written, faxed and phoned in by a doctor in New Jersey -- were legitimate.

After one mistrial and another guilty verdict vacated by a judge who said Paey had not been competent to stand trial, he was convicted during a third proceeding. The jury was not permitted to know that Paey was facing a stiff mandatory minimum. One juror held out for acquittal but was eventually swayed toward a guilty vote when the jury foreman convinced him that the defendant would get only probation. The judge had no choice but to issue 25 years.

Information for portions of this story was culled from court testimony and depositions. Contact Weekly Planet senior writer Eric Snider at 813-739-4853 or at eric.snider@weeklyplanet.com.