Under-treatment of Pain

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Pain Patients: Florida Prisoner Richard Paey is Pardoned

Richard Paey, the wheelchair-bound Florida pain patient sentenced to 25 years in prison as a drug dealer for seeking desperately-needed medications, may be a free man by the time you read this. Florida Gov. Charlie Crist (R) granted Paey a full pardon on Thursday after a brief hearing in Tallahassee. Paey and his family had only sought clemency.

Paey was severely injured in a 1985 auto accident. A New Jersey physician provided him with prescriptions for necessary pain relievers, but when Paey moved to Florida he took pre-signed prescription forms with him. He was arrested in 1997 and charged with illegally possessing and trafficking in about 700 pain pills obtained with those prescriptions.

Under Florida's draconian drug laws, persons in possession of that amount of pain medication are treated as drug traffickers. Standing on principle, Paey refused plea offers from the state and was ultimately convicted and sentenced to the mandatory minimum 25-year sentence.

Paey's case became a cause celebre for the country's growing pain patient and doctor movement. In August, the governor's office announced that it would grant a waiver allowing Paey to seek clemency. In most cases, inmates cannot seek clemency until they have serve 1/3 of their time.

Thursday, Gov. Crist and three members of the Florida cabinet heard Paey's appeal for clemency. Though the state's parole commission had recommended against granting time-served, Crist went further, granting him a full pardon and ordering he be released immediately. According to the St. Petersburg Times, Crist allowed Paey's attorney, John Flannery to speak for nearly 30 minutes -- the usual time limit is five minutes, then allowed Paey's wife, three children and a family friend to speak as well.

Crist then commented, "I want to move that we grant a full pardon," continuing, "We aim to right a wrong and exercise compassion and to do it with grace," the governor said. "Congratulations... and I state he should be released today."

For further information on the Paey case, click here.

Two People I Know Were Sentenced to Prison Last Week

The Paey Pardon, as Scott blogged about here and here, was a nice piece of news, of the kind that doesn't come around too often. The last such pleasant surprise I had came in late 2000, when Kemba Smith and Dorothy Gaines were pardoned by then-President Clinton. I immediately left a message for my friend Rob Stewart, who had played a major role in bringing the Gaines case to prominence by writing it in the old Drug Policy Letter (Drug Policy Foundation, predecessor to Drug Policy Alliance), which led to coverage of her case by Frontline. Rob told me later he had two messages on his voicemail -- one from me and one from Dorothy Gaines. These moments are rewards for all the rest of it. Unfortunately, not many political leaders seem to be of the moral caliber of Gov. Crist, and there are many more victims of the drug laws who remain unpardoned. Two of them, whom I happen to know, were sentenced to prison a week ago. One of them was Bryan Epis, the first person prosecuted by the feds for medical marijuana. He received the same 10-year sentence. The other was William Mangino, a pain physician in Pennsylvania, sentenced to 8 1/2 - 20 years. Bryan was allowed to remain free pending appeal. See our upcoming Chronicle newsbrief for some detail. Bryan actually told me a few days before the court date that he anticipated getting another 10 years, but being allowed to stay free pending appeal, and he was right. He says he has a good chance on appeal, and it sounds like it -- the prosecution really acted unethically in his case, and the judge, who is by no means biased toward defendants, commented that there are issues the appellate court may want to look at. Dr. Mangino predicted a harsh sentence, and that he would not be allowed to stay free pending appeal. Unfortunately, he was right too. Christine Heberle's blog post on the War on Doctors/Pain Crisis blog lays out the glaring absence of any crime. Accountability for injustices committed under the guise of law may be too much to hope for. But at least we should have justice now. I simply don't feel that letting people like Richard Paey and Bryan Epis and Bill Mangino live their lives unmolested by the government is asking for too much.
Location: 
United States

Richard Paey's Torturers Must be Held Accountable

As we celebrate Richard Paey's freedom today, it is important to remember that his tragic fate was no accident. Many people worked very hard at tax-payers' expense to put this innocent and miserable man behind bars. They deserve recognition today as well.

Certainly, these events vividly depict the insanity of a war on drugs that targets seriously ill people for trying to treat their own pain:
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"). [National Review]
Yet, as Radley Balko revealed at National Review, the persecution of Richard Paey involved so much more than the reckless enforcement of short-sighted laws. This was a prolonged and deliberate campaign on the part of malicious prosecutors and vengeful prison officials.

*Prosecutors blamed Paey's harsh sentence on Paey himself, claiming that he should have accepted a plea bargain. As Balko explains, they essentially retaliated against him for asserting his factual innocence and insisting on his right to a jury trial.

*Prison officials transferred Paey further away from his family after he gave a New York Times interview that was critical of the State of Florida.

*Prison medical staff threatened to withhold Paey's medication, also in apparent retaliation for his interview with the New York Times. Since he could die without it, this was the functional equivalent of a death threat and caused him great distress.

Now that Florida's Governor and Cabinet have concluded that Paey did nothing wrong, it is time to examine the way he was treated throughout this great travesty. If there are sociopaths working in Florida's criminal justice system, that's something Governor Crist would want to know about. If we can afford to imprison people for decades in order to protect ourselves from drugs, surely we can also afford to evaluate public servants who wield extraordinary power in order to ensure that they aren't deeply disturbed.

Mentally healthy people do not persecute the seriously ill, even if the drug war says it's ok.
Location: 
United States

Richard Paey Receives Full Pardon

The plight of Richard Paey has been shocking even by the drug war's rock bottom standards. Sentenced to 25 years in a Florida prison for possession of the pain medication he used to treat his own crippling back pain, Paey spent the last 3½ years behind bars.

Today, he is free:
Gov. Charlie Crist and the Florida Cabinet voted unanimously to grant Paey a full pardon Thursday morning for his 2004 conviction on drug trafficking and possession charges.

"We aim to right a wrong and exercise compassion and to do it with grace," the governor said. "Congratulations … and I state he should be released today."

With that, Paey's wife Linda, their three children, a family friend and attorney John Flannery II hugged and cried at the podium, the entire cabinet meeting room erupting into applause at 9:40 a.m. [St. Petersburg Times]
Justice in the war on drugs is a rare spectacle, and it is just delightful to witness. We've reported endlessly on this case, as have so many others, and it is wonderful to find that these efforts have not been in vain.
Location: 
United States

Good News: Pain Patient Richard Paey Pardoned by Florida's Governor

Location: 
United States
Publication/Source: 
St. Petersburg Times
URL: 
http://www.painreliefnetwork.org/prn/paey-given-full-pardon-crist-orders-him-freed-today.php

Drug War Prisoners: Pain Patient Richard Paey to Get Shot at Early Clemency

A Florida man serving a 25-year sentence as a drug dealer for attempting to obtain pain medications for his back injuries will be granted an expedited chance to appeal for clemency. Richard Paey, 48, has already served four years in Florida prisons for using undated prescription forms to obtain pain medications.

Inmates must typically serve at least a third of their sentences before being considered for clemency. But in the Paey case, which has received national attention, the state Clemency Board last week voted to grant a waiver. His case is scheduled to be voted on by the board next month.

Paey, a former lawyer and father of three, was observed going from pharmacy to pharmacy in his wheelchair seeking medications to relieve the pain from a 1985 auto accident that injured his back. Prosecutors argued that anyone forging prescriptions to obtain so many pain pills had to be selling them, but Paey said he had to use large amounts of opioid pain relievers to be able to function. Paey's pain is so severe that the Florida Department of Corrections has him on a morphine pump.

Paey appealed his conviction, but the Florida Supreme Court in March refused to hear his case. Now, clemency appears to be his best shot at regaining his freedom.

(The November Coalition has posted an important action alert about the case here.)

Pain News

Pain Relief Network's Siobhan Reynolds and son are slated to appear on The Morning Show with Mike and Juliet --- tomorrow morning, I think, Tuesday -- a Fox network talk program that airs at 9:00am in the New York area and on various Fox stations around the country. Dr. William Mangino is out on bail and able to work on his own appeal as was hoped. Richard Paey's clemency petition has been granted expedited consideration by Gov. Crist and the Florida Board of Clemency. Visit Alex DeLuca/PRN's War on Doctors / Pain Crisis blog for info. (See our pain archive here. Subscribe to our pain feed via RSS here.
Location: 
United States

Another Pain Doctor on the Ropes

Another pain physician, Dr. William Mangino, was convicted on trumped up charges equating his reasonable prescribing of opioid pain medications in the course of practicing medicine with illegal drug dealing. He is in jail pending sentencing, unless someone comes up with the $3,500 bail he needs to get out. Dr. Mangino is a writer and a thinker, and throughout his lengthy travail he has sent a copious amount of email to people who are interested in this problem, including myself -- not just about himself but commentary on the issue too, and on prosecutions brought against other doctors, much of it very detailed. It always makes me sad when these cases turn out badly (or when most drug cases turn out badly, for that matter), but the combination of the absence of his emails with the news itself has reinforced the reality of it for me. It probably won't be long, though, before he writes some things for us about this latest stage and someone gets it typed up and posted. Alex DeLuca has an update that includes some of the defense strategies for challenging the conviction (which include a Motion for a Directed Verdict of Not Guilty), the address for writing to Dr. Mangino in jail, and other information.
Location: 
United States

I'm as angry as I've been in a long time over this one...

This one has me as angry as I've been in a long time. Tampa Bay, Florida, area resident Mark O'Hara served two years of a 25-year mandatory minimum sentence for 58 Vicodin pills. (Vicodin is an opiate pain reliever.) Sound like an extreme sentence for such a small amount, even if it was trafficking as the charges read? But there's more. O'Hara had a prescription for the pills. He's a pain patient. His doctor confirmed that he had prescribed the Vicodin to O'Hara and that he had been treating O'Hara for years. But prosecutors moved against him, and -- astonishingly -- argued to the judge that the jury shouldn't be informed that O'Hara had a prescription for the Vicodin, because there's no "prescription defense." And the judge -- doubly astonishingly -- actually bought it. Never mind the fact that the drug law O'Hara was charged with violating specifically exempts people who have a prescription. The appellate judges who threw out his conviction used words like "ridiculous" and "absurd" to describe it. Sickeningly, prosecutors have yet to say that O'Hara is off the hook and won't be taken to trial again. I think we need to organize on this one and press the system to do justice to the prosecutors and judge for the terrible atrocity they committed against Mark O'Hara. Knowingly imprisoning an innocent person is the functional equivalent of kidnapping. It should be treated as such. Prosecutors Mark Ober and Darrell Dirks should be in chains; their continued status as individuals holding power in the criminal justice system poses a threat to the safety of all Americans. The judge who enabled the kidnapping, Ronald Ficarrotta, may only be completely incompetent, but I'm not sure he should get that benefit of the doubt. Read more at Reason.
Location: 
Tampa, FL
United States

Feature: Pain Doctor and Patient Advocates Get a Congressional Hearing… Finally

For the first time in more than a decade, the Drug Enforcement Administration's (DEA) heavy-handed intrusion into the field of medicine came under congressional scrutiny last week. The broad-ranging review of the DEA's regulation of medicine came at a July 12 hearing before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security chaired by Rep. Bobby Scott (D-VA).

While the hearing also included testimony and members' questions about the DEA's role in pursuing medical marijuana dispensaries and blocking marijuana research (see this newsbrief), as well as its apparent underestimation of the amount of pseudoephedrine needed for legitimate commercial and medicinal uses, testimony by Siobhan Reynolds of the pain patients and doctors advocacy group Pain Relief Network and attorney and chronic pain advocate John Flannery put the issue of the federal prosecutions of doctors who prescribe high-dose opioid pain medications front and center.

The hearings gained an added sense of timeliness the following day, when nationally-known pain management physician Dr. William Hurwitz was sentenced to five years in prison on drug trafficking charges. Hurwitz had originally been sentenced to 25 years in prison, but his original verdict was overturned and he was convicted of 16 drug trafficking counts in an April retrial. While pain patient advocates and Hurwitz supporters believe he should never have been convicted at all, they viewed the much shorter sentence -- which with time-served could see Hurwitz free in 17 months -- as a victory of sorts.

Still, Hurwitz remains behind bars for what is at best laxness in dealing with some patients who lied to him and resold drugs he prescribed them for chronic pain. As such, he is emblematic of the growing number of physicians who have been persecuted and prosecuted by the Justice Department and the DEA, as well as state-level prosecutors who have taken their lead from the feds.

"The subcommittee has received numerous complaints about the DEA's regulation of medicine," said Rep. Scott as he opened the hearing. Turning to prescription drug abuse, Scott noted that, "When it was first introduced, OxyContin abuse became rampant in such areas as Appalachia and rural New England. DEA responded by adopting the OxyContin action plan, which involved prosecuting medical doctors who prescribed high doses of painkillers. The DEA claims that this policy was not intended to impact the availability of legitimate drugs necessary to treat patients; however, the evidence suggests that the DEA's decision to prosecute doctors has created a chilling effect within the medical community, so that some doctors are unwilling to prescribe pain medication in sufficiently high doses to treat their patients. The result is that many Americans live with chronic untreated pain."

The first witness was DEA Deputy Assistant Administrator for the Office of Diversion Control Joseph Rannazzisi, who immediately took issue with the notion that the DEA was trying to regulate medicine. "The title of this hearing, 'DEA's Regulation of Medicine,' is inaccurate," he complained. "DEA does not regulate medicine or the practice of medicine. DEA does investigate violations of the Controlled Substances Act, regardless of the source of the violation, be it a Colombian cocaine dealer, a marijuana trafficker or a doctor who abuses the authority to dispense controlled substances."

Saying that DEA considered the diversion of prescription drugs one of its most significant challenges, Rannazzissi said "small numbers of unscrupulous doctors" were part of the problem. Still, he said, the agency wasn't targeting doctors. "Generally speaking, in any given year, DEA arrests less than 0.01 percent of the 750,000 doctors registered with DEA for a criminal violation. More often than not, those violations are egregious in nature and are acts clearly outside the usual course of accepted medical standards."

That brought a sharp retort from the Pain Relief Network's Reynolds, whose life-partner, Sean Greenwood was a former Hurwitz patient who died last year as the family crisscrossed the country searching for a doctor who would treat his chronic pain, during her subsequent testimony. "The DEA contends that they only prosecute 0.01 percent of registrants," she said. "However, that's a misleading figure, because a very small number of registrants prescribe opioid medicines and an even smaller number would prescribe in doses that would relieve serious pain."

"So the actual number of doctors who are arrested is far greater, when you look at the correct denominator, which this leads me to my next point, which I think is really the most important point," Reynolds continued. "This is a government agency that plays fast and loose with the facts, uses incredibly inflammatory rhetoric, talks about crime and addiction and dependence and puts them all together and maybe has no cognizance of the fact that this all ultimately falls on and stigmatizes very, very sick people. But that is in fact what happens."

When it came his turn to testify, Flannery, a former prosecutor and congressional staffer and author of "Pain in America -- And How the Government Makes It Worse," took issue with Rannazzisi's taking issue with the hearing's title. "The title of the hearing, which is the regulation of medicine by DEA is, unfortunately, an apt one," Flannery retorted. "DEA has been regulating medicine, and for them to come here and say that they don't know it means that they either are consciously doing it or recklessly doing it. And I can't believe they're doing it recklessly, because we see the quality of people who work at the department. And that means there's an ideological purpose in regulating medicine. They do not approve of certain medical practices. And, if that is it, they should bring it to the Congress and tell us why, with statistics and explanations, because then it should be a formal policy rather than the secret one that it is presently."

Flannery accused DEA and the Justice Department of "bait and switch" tactics. The legal standard for criminal prosecution of doctors is that they have to be acting outside the course of professional medicine with the intent to push drugs, not treat patients, Flannery noted. "They create these standards on a case-by-case basis," Flannery said. "And how do they do that? They bring a doctor into the courtroom that they pay, who travels around the country, and the standard is created on a case-by-case basis by the DEA doctor."

Determinations of what constitutes criminal conduct by doctors -- as opposed to simple malpractice -- are better left to state medical boards, Flannery said under sympathetic questioning from Rep. Scott.

Ranking minority member Rep. Randy Forbes (R-VA) carried water for the Bush administration, asking whether marijuana should be legalized, worrying about teen prescription drug overdoses and "pharma parties," and asking about marijuana growing in national forests, while Rep. Louie Gohmert (R-TX) provided inadvertent comic relief. Gohmert wandered into the hearing room, announced that voters in his district didn't support marijuana legalization, then launched into a bizarre tale about a bag of sterilized marijuana seeds from which some seedlings sprouted he had seen in a court case once before retreating back into silence.

While last week's hearing marked the first oversight of the DEA's regulation of medicine in more than a decade, it wasn't enough, Reynolds told the Chronicle. "Although I submitted written testimony, we were limited to five minutes, so I spent my time basically explaining how offended I was at the farcical nature of the DEA and ONDCP testimony, denying the possibility of a chilling effect on physicians."

"This is a step on a slow journey toward enlightenment," Flannery told the Chronicle. "In Jerrold Nadler and Bobby Scott, you can't find two better lawyers who are sensitive to these issues, but the Congress is immersed in lots of other business, and it takes a lot to move members from their preconceived notions of what the drug war is about. Very few understand this is about the government invading medicine -- not prosecuting drug dealers. We will have to turn around an ocean liner in order to get action."

But hearings like last week's are a first step. "I've asked for more hearings, but I'm not getting the impression that's the next step," said Reynolds, who was invited to testify by Rep. Nadler. "What I've been told is that we need to educate the Congress. We've been doing that, but there seem to be a lot of closed ears on this issue. Still, more and more, there is some awareness that this is a terrible problem."

Reynolds added that she and others are working with the committee to seek legislation that would ease the DEA pressure on pain doctors. "Both Nadler and Bobby Scott showed real concern and came up afterward and asked what they can do."

Nadler spokesman Shin Inouye told the Chronicle Thursday that Nadler is looking into the matter. "He's very interested in the issue, but I haven't heard anything specific about new legislation yet," Inouye said.

There is a long way to go before America's estimated 40 to 70 million chronic pain patients and the doctors who seek to treat them can live without the fear of the DEA, but last week's hearing was a good -- if insufficient -- beginning, and lays the groundwork for further action.

The written testimony of all witnesses at the hearing is available online here.

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