MERCY PLEA TRAVELS A PAINFUL ROAD

While Gov. Jeb Bush will be vacating his public housing in just a few
days, Richard Paey will still remain a "guest" of the state for the
next 23 years, a victim of an egregious miscarriage of justice that
would embarrass even the most inept banana republic.

Of course, that could change. Leadership might be afoot!

Jeb's Clemency Board could vote to issue a pardon. In the waning
moments of the Bush Administration something extraordinary could
occur: doing the right thing.

On second thought, Paey probably shouldn't be thinking about packing
any bags.

At the moment, the 48-year-old Paey resides in the Tomoka Correctional
Institute. If he serves his full sentence - cue the "Scarface" theme -
the convicted drug trafficker won't be released from prison until 2028.

But Paey is hardly Pablo Escobar, running an international cocaine
cartel.

In 2004, Paey was convicted in Pinellas-Pasco Circuit Court of seven
counts of trafficking in oxycodone, four counts of possessing
hydrocodone and numerous counts of obtaining a controlled substance by
fraud. Horrific Accident

However, no evidence was ever presented at trial linking Paey to the
sale or distribution of the drugs, nor was any evidence offered
proving the former lawyer forged anything.

Indeed, the enormous amounts of drugs Paey was obtaining were for his
personal use to ease the excruciating back pain he endures from a 1985
car accident that subsequently confined him to a wheelchair.

This month, the 2nd District Court of Appeal upheld Paey's conviction
in a 2-1 vote, noting no technical "legal error" occurred at trial to
warrant overturning the sentence.

The court, however, took the unusual step of suggesting the
prosecution of Richard Paey was absurd to begin with. "Thus Mr. Paey's
argument about his sentence does not fall on deaf ears, but it falls
on the wrong ears," the court wrote in urging the Clemency Board to
take up the case. Twisted Logic

In a scathing dissent that runs as long as the original court opinion,
Judge James Seals wrote: "I suggest it is cruel for a man with an
undisputed medical need for a substantial amount of daily medication
management to go to prison for 25 years for using self-help means to
obtain and amply supply himself with the medicine he needed."

Seals added: "How is it not cruel to circumvent judicial checks and
balances and intentionally put a man in prison for 9,125 days when his
offense was being foolish and desperate in how he went about obtaining
his medicine?"

Smart judge, James Seals is. Wise, too.

Adding insanity to injustice, the state is providing Paey the exact
same pain management medications he has been convicted of obtaining
for himself.

Or consider this twisted piece of criminal justice
logic:

As prominent criminal defense lawyer John Fitzgibbons mused - he has
no connection to the case - had Richard Paey burglarized a pharmacy
and stolen the pain drugs he needs, he probably would be serving a
sentence of about five years in prison as a first offender instead of
25 years for being a first-degree innocent man.

Anthony DeLuise, the governor's deputy press secretary, said Paey
would have to follow the clemency process, which requires the approval
of Jeb Bush and at least two members of the clemency board: Gov.-elect
Charlie Crist, who's still the attorney general; Chief Financial
Officer Tom Gallagher; and/or Agriculture Commissioner Charles Bronson.

Although Richard Paey has plenty of time on his hands, the moments
lost are no less precious.

The paperwork before Jeb Bush is a textbook case of what a clemency
proceeding ought to encompass.

"This is an act of mercy," said Paey's appellate attorney, John
Flannery of Virginia. "Remarkable judges agreed the results were unfair."

To bolster Paey's appeal, Flannery sought the support of many experts
in the field of pain management, including Russell Portenoy, chairman
of the pain and palliative care department at Beth Israel Medical
Center in New York.

Portenoy rightly argued individuals like Richard Paey need to have
their drug management issues addressed in medical settings, not in
prison.

"Criminalizing these behaviors will increase the fear among patients,
families and doctors that surrounds the medical use of opioids, and
this will worsen the undertreatment of pain," Portenoy said.

By any standard of common decency, Richard Paey, who has been
criminalized for being a patient, should not have to spend one more
minute, one more day, one more month locked in a cage.

Daniel Ruth's column appears Tuesday, Thursday and Saturday.