CIVIL LIBERTIES

CRUEL AND UNUSUAL PUNISHMENT UPHELD BY FLORIDA COURT

HIT AND RUN - Yesterday Florida's 2nd District Court of Appeal rejected
a challenge to the 25-year mandatory minimum sentence received by pain
patient Richard Paey for "drug trafficking" that did not involve any
trafficking in drugs. As the majority explained, under Florida law "a
person need not sell anything to commit the 'trafficking' offense. . . A
person may commit the offense by knowingly being in actual or
constructive possession of an enumerated controlled substance in a
quantity equal to or greater than a weight designated by statute" - in
this case, 28 grams of the narcotic painkiller oxycodone.

The prosecution presented no evidence that Paey distributed the pills to
anyone else or planned to do so. All indications were that he obtained
the painkillers entirely for his own consumption, and the only real
matters of dispute were 1) whether he had obtained them legitimately or
through prescription fraud and 2) whether he truly needed them for pain
relief, as he insisted, or had become addicted to them in the course of
pain treatment, as the prosecutors claimed. But because of the drug
trafficking's statute's broad reach, the appeals court concluded, Paey's
conviction and sentence were legally appropriate. And although his
history of chronic pain and desperate circumstances "naturally evoke
sympathy for what he has endured and concern for his future welfare,"
the court said, his sentence is not so disproportionate that it violates
the Eighth Amendment's prohibition of "cruel and unusual punishment" or
the Florida Constitution's prohibition of "cruel or unusual punishment."

That conclusion prompted a strong dissent by Judge James H. Seals, who
wrote:

"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. . .

"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. . . It is illogical,
absurd, cruel, and unusual for the government to put Mr. Paey in prison
for twenty-five years for foolishly and desperately pursuing his
self-help solution to his medical management problems, and then go to
prison only to find that the prison medical staff is prescribing the
same or similar medication [a morphine pump] he had sought on the
outside but could not legitimately obtain. That fact alone clearly
proves what his intent for purchasing the drugs was. What a tragic
irony. . . "

http://www.reason.com/blog

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COLLEGES & UNIVERSITIES ARE MAJOR CENSORS OF FREE SPEECH

FIRE - A report released today by the Foundation for Individual Rights
in Education finds that burdensome restrictions on speech are
commonplace at America's colleges and universities. The report surveyed
publicly available policies at the 100 "best national universities" and
at the 50 "best liberal arts colleges," as rated by U.S. News & World
Report, as well as at an additional 184 major public universities.

Among the findings: More than 73% of public universities surveyed
maintain unconstitutional speech codes, despite numerous federal court
decisions striking down similar or identical policies. Most private
colleges and universities promise free speech, but usually do not
deliver. Unlike public universities, private universities are not
legally bound by the First Amendment. However, most of them explicitly
promise free speech rights to their students and faculty. For example,
Boston University promises "the right to teach and to learn in an
atmosphere of unfettered free inquiry and exposition." [But] it also
prohibits speech that would be constitutionally protected in society at
large, such as "annoying" electronic communications and expressions of
opinion that do not "show respect for the aesthetic, social, moral, and
religious feelings of others."

Overall, the report reveals that more than 68% of the colleges and
universities surveyed maintain policies that "both clearly and
substantially restrict[] freedom of speech."

Macalester College bans "speech that makes use of inappropriate words or
non-verbals." Furman University bans any "offensive communication not in
keeping with community standards." At the University of Mississippi,
"offensive language is not to be used" over the telephone. The
University of North Carolina–Greensboro prohibits "disrespect for
persons."

http://www.thefire.org

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