Pain and Punishment 

Legal logic keeps AIDS patient in jail, off his medicine

Wednesday, Mar 24 1999
Photo by Debra DiPaolo

"I just want to be alive to defend myself in September," said Peter McWilliams.

The self-published best-selling author (Ain’t Nobody’s Business if You Do: The Absurdity of Consensual Crime, among others), who has AIDS and cancer, was referring to his upcoming trial. He was arrested by federal agents last July, charged with being the ringleader of a conspiracy to cultivate and distribute medical marijuana.

He spent a month in jail. As a condition of his pretrial release, he cannot smoke pot, because it would be a violation of federal law, even though California’s Proposition 215 makes it legal for him to simply take his medicine. States’ rights — it’s not just for racists anymore.

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If McWilliams can’t smoke pot and vomits up his lunch, the antiviral pills he takes to stay alive are also regurgitated. And if one of his urine tests indicates that he did smoke pot, it’s back behind bars, while his mother and brother lose their homes, because that’s how his $250,000 bail was met.

So pick a metaphor, any metaphor. Whether it’s a case of Catch-22 or the devil never sleeps or the dinosaur culture is trying to survive, what it all boils down to is that they’ve got McWilliams by the same balls that have allowed him to serve as an outspoken critic of the DEA.

Meanwhile, his viral count continues to multiply, putting his health in ever-increasing danger. His attorney, Tom Ballanco, cited McWilliams’ condition as "living proof of the medical value of marijuana."


At a February hearing on whether to allow Mcwilliams to take marijuana as medicine, federal district court Judge George King seemed to strive for fairness. He said he would be "struggling mightily" with his decision. He asked prosecutor Fernando Aenlle-Rocha a pertinent question: "If Mr. McWilliams can only use marijuana in inhaled form, and other methods were ineffective, would the government consider that irrelevant?"

The prosecutor fidgeted. "It is still irrelevant under the current state of law," he replied. "There are no exceptions."

Q: "And if there’s nausea, that’s just the way it goes?"

A: "It sounds terrible, the way the court says it. As human beings, we’re sympathetic to Mr. McWilliams’ plight. As officers of the court, we’re sworn to uphold the law that has clearly made use and possession illegal. We are sensitive to the fact that his health has deteriorated, but we are not the legislators."

Of course, the law under discussion was federal; in its conflict with the national war on drugs, California’s pot law simply has no standing. Magistrate Andrew Wistrich, who presided over McWilliams’ bail hearing, said as much when he ruled that passage of 215 did not change marijuana’s status as an illegal drug. Moreover, California Attorney General Bill Lockyer concedes that, whatever recommendations are made by his task force to make 215 work, they may not be fully implemented unless and until the federal government reclassifies marijuana as a drug with some therapeutic use.


Actor and hemp activist Woody Harrelson showed up at the hearing to support McWilliams. He entered the courtroom quietly and sat unobtrusively in the back row, but somebody noticed him and immediately rushed into the hall to make a phone call to his media contact.

The judge said he would issue a ruling in "the near future." Then McWilliams held a press conference on the sidewalk.

"My case is a microcosm," he pleaded with the journalists. "It represents what marijuana is all about. I am dying. I am at the court’s mercy. I am virtually cornered by the government. President Clinton says, "I feel your pain, but if you do anything about it, I’ll kill you."

The local NBC correspondent and his cameraman had arrived, but the moment they saw Woody Harrelson, they left McWilliams in midsentence.

However, Harrelson did not want to be interviewed. He ran across the street. The cameraman chased him, with camera running. Woody got on his motorcycle, the cameraman got into his van, and the chase continued, camera running.

It reminded me of a scene that occurred outside the O.J. Simpson trial. A medical-marijuana demonstration was taking place, with patients smoking pot right there on the courthouse patio. Several yards away, a large group of reporters and cameramen were relaxing on lawn chairs, waiting all afternoon for Johnnie Cochran to come out. They were invited to cover the protest, but no thanks, they had only been assigned to the Simpson trial.

A week after the hearing, Judge King denied McWilliams’ request. "We do not mean to express indifference to the defendant’s situation," he stated, "[but] we are not empowered to grant [him] what amounts to a license to violate federal law."

The ruling will be appealed. In the meantime, McWilliams lamented, "They’re just going to let me die."

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