Shoot-out in California

NEW YORK, AUGUST 14

The general mess created by our drug laws has reached a tropical low in Los Angeles, where the storm center gathers over the head of Peter McWilliams.

Here is the political background:

-- In November 1996, the California voters endorsed a plebiscite (Proposition 215) which authorizes the purchase of marijuana by any Californian with a doctor's prescription. Doctors are supposed to write out that prescription only when cannabis provides unique relief. That law conflicted with federal statutes that make the smoking of marijuana a crime at any time, including -- to observe the language -- on your deathbed. The question immediately arose: What do we do about these conflicting jurisdictions? Everybody waited for everybody else to act. The most that Attorney General Dan Lungren would do (he is running for governor) was promise to observe the new law "minimally."

But of course the reciprocal gears of justice do not here interlock glibly. The marijuana lobby in California is sincerely interested in making the weed available to the sick, who are said to profit greatly from it. But the marijuana lobby in California is also sincerely interested in anybody's getting marijuana who wants marijuana, and the political story here took flesh and blood in Peter McWiliams.

-- McWilliams is a middle-aged literary man-about-town. He has written thirty books that range in concern from poetry to love to computers to moral anarchy. He is a self-described libertarian who believes that no law should be passed which gets in the way of anybody's doing anything he wants to do, provided it doesn't hurt somebody else; and that such laws as are on the books that conflict with libertarian doctrine should be treated only with just so much respect as is necessary to keep you out of jail.

On July 23, the Feds concluded that McWilliams and partners were not sufficiently complying with the law. McWilliams, who has always appreciated the lighter side of life and thought, had lent money from his tiny publishing firm to an entrepreneur who used it to nurture four thousand marijuana plants. Why? Well, if a doctor is entitled under the law to prescribe marijuana, then he has to get it somewhere, does he not? Parthenogenesis won't give you fresh supplies of marijuana, even in California.

So the Feds announced themselves at six in the morning, with handcuffs, and took away not only McWilliams but also his computer with all its records. They demanded bail of $250,000. His lawyer pleaded against the draconian extreme of the bail demanded. The defense was perfectly glad to give up Peter's passport. Did anybody really think he would not show up at his trial?

Pressures of another kind were inflicted. McWilliams has AIDS and also a form of lymphoma. The treatment prescribed by his doctor is complex and delicately balanced and is required six times every day. The failure of the prison authorities to give him the doses as called for has resulted in frequent nausea, no trivial complaint given that in a debilitated condition, those who suffer from that combination of maladies McWilliams suffers from run the risk of contracting a terminal case of tuberculosis.

-- The meltdown is therefore now scheduled. A few months from now, McWilliams and his fellow defendants will insist that they were not guilty of any criminal intent. No money changed hands. True, McWilliams did at one point pass off the wisecrack that he wished to become the "Bill Gates of medical marijuana." But you don't go to prison for making wild statements about a fantasy life, any more than Bill Clinton goes to prison for making wild statements about celibate behavior.

But in ruling on McWilliams v. the United States, prosecutors are going to have to face head-on the California argument. At one level, California argues the Ninth and Tenth Amendments, which prohibit federal activity in areas reserved to the states under the Constitution. That defense will be half-hearted, because the justice establishment in California never liked Proposition 215, and doesn't like McWilliams, who is an enthusiast for marijuana, which he proclaims (in publications protected by the First Amendment) as suitable to give relief for most adult aches and pains.

It will be a very interesting trial, and it is not unlikely that many institutions will weigh in with amici curiae pleading their own judgments of law, conflicts, drugs, and liberty. Meanwhile, one hopes that Peter McWilliams, something of a bird of paradise, is left alone to take proper care of himself.

(Universal Press Syndicate)

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