Episode Four: Criminalizing Care

Peter McWilliams was an optimist, activist, poet, and advocate for personal freedom. His book “Ain’t Nobody’s Business If You Do: The Absurdity of Consensual Crimes in Our Free Country” resonated across the political spectrum. After contracting AIDS and being diagnosed with AIDS-related non-Hodgkin lymphoma in 1996, McWilliams turned to medical marijuana to manage his nausea and keep down his medication. He became a vocal advocate for medical cannabis, but in 1997, he was arrested by federal authorities for running a grow operation, despite California creating some protections for medicinal use at the time. As a condition of his bail, McWilliams was forced to stop using marijuana, even though it played a critical role in his treatment. He later died after choking on his own vomit, while awaiting sentencing by a federal judge. This episode of Collateral Damage explores McWilliams’s life and legacy, and examines how the drug war has obstructed health care.  Transcript Peter McWilliams: I want to tell you about a pair of epiphanies that I had in 1996. The first happened in March of 1996 when I was diagnosed with both AIDS and cancer. I tell you this early on because I want your sympathy throughout the rest of this speech. [Laughter] Radley Balko: That’s Peter McWilliams, a self-help author and poet, speaking at the 1998 Libertarian Party National Convention. Peter McWilliams: When you mention AIDS or cancer, people are so afraid of their own death that they treat you very nicely. Radley Balko: McWilliams, known for his wit and sharp commentary, was also brutally honest about his struggle with chemotherapy and AIDS treatment. Peter McWilliams: So the nausea that was treated, that was caused by these things, ended instantly with marijuana. With one puff of marijuana. Radley Balko: Speaking both to the crowd and a televised C-SPAN audience, McWilliams shared that medical marijuana was far more effective for him than the anti-nausea medication he had been prescribed. Peter McWilliams: It is astonishing how well it works. And you have to understand how serious it is when you can’t keep your medication down. It’s not just that it’s uncomfortable. If you can’t keep that medication down, it’s not gonna save your life. Radley Balko: McWilliams wasn’t just making a personal plea — he was urging his audience to challenge medical marijuana prohibition. Julie Feldman: So it certainly pays to know someone like Peter McWilliams.  Host: Here’s a guy who has written three bestselling books. And you know what? He published them himself. Conan O’Brien: Please welcome Peter McWilliams.  Todd McCormick: Peter had become a multimillionaire before he moved out of his mother’s house in Michigan. When he was in his late teens, early 20s, he wrote a book called “Come Love With Me and Be My Life: The Romantic Poetry of Peter McWilliams,” went on to sell over 3.5 million copies of a poetry book. Which is pretty incredible. Radley Balko: But McWilliams wasn’t just a poet. He was also a technophile, a columnist, a motivational speaker, and a prolific self-help author. He was friends with the composer and lyricist Stephen Sondheim. He wrote and directed a movie starring Bette Midler. He appeared on Conan O’Brien, Oprah, and was a repeat guest on “Larry King Live.” Larry King: One other thing, Peter. You self-publish, right? Peter McWilliams: Yes.  Larry King: Very hard to be successful; not many that make bestseller lists. Radley Balko: He thought of himself first and foremost as a humanist. And above all, Peter McWilliams was perpetually curious. Peter McWilliams: Hundreds of suggestions. It’s a thick book. People look at it and go, “Oh, it’s thick.” Cyndy Canty: I’ll never read it. Peter McWilliams: I’ll never read it. But every lefthand page, as you pointed out, is a quote. One of my favorite quotes is from Mae West. Cyndy Canty: Which is?  Peter McWilliams: Mae West said, “Oh, I used to feel bad about what I did.” And someone said “Did you reform?” “No, I just don’t feel bad anymore.” [Laughing] Radley Balko: The people close to McWilliams say he never aspired to be the sort of person who would give a barnstorming speech at a political convention. And as someone with such lust for life, he certainly never saw himself as a victim. Yet martyrdom came calling anyway. In March of 1996, McWilliams was diagnosed with AIDS and with AIDS-related non-Hodgkin’s lymphoma. He was not much of a drug user. But smoking marijuana was the only thing that eased the nausea brought on by the AIDS medication and the chemotherapy. Marijuana allowed him to keep down the drugs that were keeping him alive. And so he became a supporter, and then a spokesperson, and then a passionate advocate for civil libertarianism. Peter McWilliams: Our leaders whom we trust, whom we look up to, from the Democratic president to the who-knows-what-he-is drug czar, to the Republican leaders in Congress of both the House and the Senate: They have lied to us about medical marijuana. They have lied to us about the harm of marijuana. There is no more benign medicinal substance known to human beings. And we have been lied about this. Radley Balko: Less than two years after that speech, McWilliams would be dead at the age of 50. California, where he lived, had effectively legalized marijuana for medicinal use, but the federal government had made it a priority to stop the momentum for medical marijuana from spreading to other states. So the feds began going after growers and activists in places that had approved the treatment. And that put McWilliams in their crosshairs. Thomas Ballanco: Prior to his being arrested, he had had his checkup. He had regular checkups. His viral load had been undetectable for over a year, and his T-cell count was high.  Well, as soon as he was prohibited from using natural cannabis, his viral load started to spike. And it went into the thousands. Then it went into the 100,000s. Not only did we see this in his blood, you could see this in his physical well-being.  He went from, like, being active and vivacious to eventually being in a wheelchair, being exhausted all the time. Being what you think of when you think of classic AIDS patients from the early days of AIDS. Radley Balko: Deprived of marijuana after his arrest, the nausea from chemotherapy and the AIDS drugs left McWilliams unable to keep down his medication. It also made it difficult to eat. And so the illness took over, and his body withered until it failed. America’s drug war had killed Peter McWilliams. From The Intercept, this is Collateral Damage. I’m Radley Balko, an investigative journalist who has been covering the drug war and the criminal justice system for more than 20 years.  The so-called “war on drugs” began as a metaphor to demonstrate the country’s fervent commitment to defeat drug addiction, but the “war” part quickly became all too literal.  When the drug war ramped up in the 1980s and ’90s, it brought helicopters, tanks, and SWAT teams to U.S. neighborhoods. It brought dehumanizing rhetoric and the suspension of basic civil liberties protections. All wars have collateral damage: the people whose deaths are tragic but deemed necessary for the greater cause.  But once the country dehumanized people suspected of using and selling drugs, we were more willing to accept some collateral damage.  In the modern war on drugs — which dates back more than 50 years to the Nixon administration — the United States has produced laws and policies ensuring that collateral damage isn’t just tolerated, it’s inevitable. This is Episode 4, “Criminalizing Care: The remarkable life and cruel death of Peter McWilliams.” Collateral Damage Podcast Collateral Damage Peter McWilliams was born in August 1949 in Detroit, Michigan, and grew up in the nearby suburb of Allen Park. He was a shy and sensitive kid, but also creative and ambitious. He began writing poetry in his teens and published his first book of poems at the age of 17. McWilliams came out as gay in the early 1970s, and eventually moved to West Hollywood, California. Thomas Ballanco: He would always say, “I am not a proud fag, but I am a fag.” Radley Balko: That’s McWilliams’s old attorney Thomas Ballanco, a fellow marijuana activist who first met McWilliams in the mid-1990s at a party in the West Hollywood neighborhood of Bel Air. Thomas Ballanco: We think of, oh, coming out, being publicly gay in this day and age, OK, that is not an uncommon thing. Peter came out at a young age in the early ’70s. And I have to emphasize what a different time that was and what that meant when you’re in Michigan and you come to the realization, “Hey, I’m a gay man.” And that, in a way that is so much more accepted and common now, really became a defining characteristic. And he did not flaunt that. He was not “Oh, I’m this and that.” But he didn’t deny that. Radley Balko: McWilliams was at first drawn more toward self-improvement than gay activism. His sexuality was of course a huge part of his own life, and he didn’t shy away from writing about it.  But he also looked for ways to overcome his shyness, insecurity, and other quirks that he saw as barriers to his happiness. And he wanted to share what did and didn’t work for him with others, so they could improve their own lives. “He didn’t even want to be a marijuana activist. He’s always said, I’m a humanist, advocating for human beings.” Thomas Ballanco: So much of his writing, his activism was really about liberating the individual, freeing the person inside to be who they were. He rejected the title of a gay rights activist. Because he said that wasn’t his fight. He didn’t even want to be a marijuana activist. He’s always said, ‘I’m a humanist, advocating for human beings. I don’t think everybody should be gay, but people who are gay are gay.’ Radley Balko: But McWilliams soon discovered that gay rights are inseparable from self-liberation. Thomas Ballanco: As he began to write, like I think a lot of people who were open about their sexuality then, he got flooded with letters that never stopped. Till the day he died, he had letters on his desk of people around the country that were, “Hey, I’ve been wrestling with my sexuality. I feel like I’m gay, but I don’t know how to tell anybody. I don’t want to explain this to anybody.”  And he answered them. He answered them all. And he engaged on that. He was a compassionate and caring person, and I think that’s what drove him to some of this activism. That he couldn’t stomach the thought — no pun intended because of the nausea — he couldn’t stomach the thought of living in a society that criminalized the consensual behaviors of adults. Radley Balko: In 1993, McWilliams published his renowned book “Ain’t Nobody’s Business if You Do: The Absurdity of Consensual Crimes in Our Free Country.” Channeling the philosopher John Stuart Mill, the book was a plea for people to be left alone to pursue their own happiness, so long as they don’t harm others.  Conan O’Brien: My next guest has written more than 30 books …  Radley Balko: McWilliams went on Conan O’Brien’s show to talk about his new book. His wardrobe was quintessentially Peter McWilliams: baggy beige slacks, a Beavis and Butt-Head t-shirt, and a blue blazer that looked as if he’d just thrown it on after a long nap. O’Brien’s first question: What is a consensual crime? Peter McWilliams: A consensual crime is anything they can put us in jail for that doesn’t physically harm the person or property of another. And we’re talking about things like gambling, drug use, homosexuality, prostitution, helmet laws, seatbelt laws, all of that. Radley Balko: McWilliams went on to break down the cost of consensual crimes in terms of the thousands jailed and millions more arrested every year. O’Brien followed by asking about drug abuse specifically, and if McWilliams thought selling or using cocaine is harmless.  Peter McWilliams: It’s as adults, it’s not harmless necessarily. But then if you look at the most harmful drug in the country, it’s definitely cigarettes. 500,000 people a year die from cigarettes.  Conan O’Brien: Right.  Peter McWilliams: All the illegal drugs put together, it’s less than 6,000 people a year. So in terms of actual harm, either we should be consistent, we should ban cigarettes, ban alcohol. [Crosstalk.] Or we have to let adults make their own decisions. “He couldn’t stomach the thought of living in a society that criminalized the consensual behaviors of adults.” Radley Balko: Three years after that appearance, Williams was diagnosed with AIDS and lymphoma. Thomas Ballanco: He lived as much of his life as he could in his bathrobe, because of his illnesses. So he was actively medicating. What was called, at that time, the combination cocktail was a cutting-edge drug but had tremendous nausea side effect. And amongst the many coping mechanisms Peter had for the ever-present nausea in his life was soaking in hot water. So he had turned his entire swimming pool into, effectively, a hot tub. So a bunch of meetings were held in his swimming pool that was 98 degrees. Radley Balko: Right around the same time that McWilliams got sick, California voters passed Proposition 215, which began to create a legal structure around medical marijuana. The ballot measure didn’t outright legalize marijuana itself, but it did protect doctors, patients, and caregivers from state prosecution. The law was seen as fairly radical at the time — this was 1996. Although the federal government continued to prohibit the drug, the FDA had already recognized the medical benefits of cannabis for a decade. Here’s Jacob Sullum, a senior editor at Reason magazine and the author of the book “Saying Yes: In Defense of Drug Use.”  Jacob Sullum: Back in the ’80s, the Food and Drug Administration approved a synthetic form of THC, which is the main active ingredient in marijuana, as a treatment, initially, for the side effects of cancer chemotherapy. And then later they approved another use, which is for AIDS wasting syndrome. And this was established through the kind of controlled clinical trials that the FDA demands. It recognized that marijuana is effective at relieving nausea, restoring appetite, enhancing appetite, which is something people have recognized for a long time. But that was validated in a very systematic way in order to get FDA approval for what was Marinol at the time, and now we have generic versions of that. So how can you maintain that the main active ingredient in marijuana does have recognized medical uses, but marijuana does not have recognized medical uses? It didn’t really make sense. Radley Balko: And patients like McWilliams ran into a problem with Marinol. It didn’t work quickly enough for them to keep their medication down. Here’s Ballanco again. Thomas Ballanco: He would take his combination cocktail dose. I think it was five times a day, he had to take this handful of pills that work together. It was what was termed low-level chemotherapy. When it hit his stomach, somewhere along the way, it would create nausea. And if he vomited, he would lose at least a portion of that dose. But it was so strong that he couldn’t just take another dose. Let’s say he took a dose; 15 minutes later, he vomits. He’s absorbed some of that, but who knows how much? He couldn’t just take another one. So when he vomited, he lost the benefit of that dose. So what he found was when he was taking the oral antiemetics, to include Marinol, which was the pharmaceutical THC, the delayed onset didn’t help him.  He takes the drugs, he feels nauseous, he takes another drug to make him not nauseous — too late. In the time between that taking effect, he’s already thrown up. Whereas, if he smokes cannabis as he’s taking it, it’s an almost immediate impact. He feels a little nauseous, he smokes a little more, it settles his stomach. Radley Balko: For McWilliams, only smoking marijuana allowed him to fully digest the medicine that was keeping him alive. Thomas Ballanco: So that was the pattern he had settled into for about two years, living with AIDS and cancer, effectively. Jacob Sullum: For somebody who’s severely nauseated and vomiting all the time, if you have to swallow a capsule and keep it down, that in itself is a challenge. When you consume it orally, THC orally, it gets processed through the liver, which produces byproducts that change the psychoactive experience, and some people find more disturbing than smoked marijuana or vaporized marijuana. Third, dose control is much harder when you swallow a capsule, and you may have to wait an hour or more for the effects to come on. If it turns out it was too much, it’s too late. And if it turns out it’s too little, in order to adjust the dose it takes a lot longer than with a product that’s either smoked or vaporized and inhaled. So you have much better dose control, and you have much faster action. Radley Balko: McWilliams quickly became an advocate and then a financial supporter of legalization groups and the rush of cultivators, dispensaries, and other entrepreneurs that popped up in the wake of California’s medical marijuana initiative. That work eventually led him to Todd McCormick, an activist and a pot-growing guru. Todd McCormick: My name is Todd McCormick. I’m 53 years old. I’m an author, and I’m the owner of a company called Authentic Genetics. I provide cannabis seeds around the world. Radley Balko: McCormick was diagnosed with cancer nine different times between the ages of 2 and 10, and then again at the age of 15. After one chemotherapy session, his mother passed him a joint, which immediately helped him feel better. This was 1979, years before medicinal marijuana was legal. Todd McCormick: I was using medical cannabis when I was 9 years old, and I was asked to talk to another kid who was also going through the same methotrexate chemotherapy that I was on and wasn’t having as good of an effect with it. And when we were walking to the hospital room where the kid was in, I asked my doctor — he was holding my hand, I remember he was so much taller than me — and I said, “You want me to lie to him and not tell him I’m smoking marijuana, right?” And he stopped me, he says, “I never told you to lie.” I said, “Well, you don’t want me telling him I smoke marijuana, right? And if we don’t tell him, that’s basically lying by omission.” “I felt like other people were suffering because they didn’t have access to something that was helping me.” And I always felt like this is screwed up. Like that kid looked pale and bald. I had color in my skin and hair on my head. And it just felt wrong. And at that point on, I felt like other people were suffering because they didn’t have access to something that was helping me. And as I got older, it bothered me more, it bothered me more, it bothered me more. And I decided to try to do something about it. And I’ve been a cannabis activist for the last almost 30 years. Radley Balko: In the mid-1990s, McCormick was living in Amsterdam, where he was editor of a magazine called Hemp Life. The magazine caught McWilliams’s eye, so he asked McCormick for a meeting. McCormick then flew out to Los Angeles. Todd McCormick: We met, just really hit it off, got along really well. He’s from Michigan, I’m from Rhode Island, we both had kind of an East Coast vibe. He was just a really open and upfront person.  He offered me a quarter-million dollars as a book advance. I took it, and yeah, as they say, the rest becomes history. But it was one of those LA moments where you have a meeting and your life is turned upside down in about two seconds. Radley Balko: McCormick briefly moved into McWilliams’s home, and the two started talking about how to proselytize the benefits of medical cannabis. Todd McCormick: We were sitting in his living room, going through the boxes, he saw me with these little packs of seeds that had a thousand seeds in each pack, and asked me how much a seed was worth. I told him about $10. And he realized that each little package of seeds in front of me was worth 5 to 10 grand, roughly.  I had probably 50 to 70 packages of seeds. And he, at that point, revisited his offer to me. And when I said yes, he drove me directly down — well, I drove — but he had me drive him right directly to the bank, put money in my account, and it was like a handshake deal. He wanted me to do a website, he wanted me to do a grow book, he wanted me to go around and teach people how to cultivate cannabis at lectures, and he also wanted me to make a documentary about growing cannabis. Radley Balko: With McWilliams’s money, McCormick bought his own place, a grand building in a tony neighborhood in the foothills of the Santa Monica mountains that they called “Liberty Castle.” Todd McCormick: I found a home in Bel Air on Stone Canyon that we referred to as “The Castle.” It was like a five-storied, castle-styled mansion that was fully gated. It was a little storybook. Radley Balko: The problem for activists like McCormick and McWilliams was that their advocacy was based on a fundamental misunderstanding of Prop 215. Todd McCormick: It didn’t really legalize anything, unfortunately. It created a medical necessity defense that you could present if you were arrested by the state. It did not protect you from any type of federal prosecution, which unfortunately I found out after being busted by the feds. Radley Balko: McCormick, like most people, didn’t understand these legal intricacies at the time. He treated the law as it had been portrayed in the media — as if it had legalized cannabis for medical use. So he lived his life as if what he was doing was legal: openly and brazenly. And that presented a direct threat to the federal government’s war on the drug. That war began during the Nixon administration, which demonized marijuana users, lumping them in with anti-war protesters, hippies, and the civil rights movement all as existential threats to the “silent majority” of white, suburban voters.  The administration categorized the drug under Schedule I, the class of drugs that the government says are highly addictive and have no medicinal value. That made pot more tightly controlled than cocaine, amphetamines, and opium. The focus on pot continued during the Reagan administration, which, like Nixon, saw marijuana users and advocates as part of a subversive counterculture.  Ronald Reagan: Leading medical researchers are coming to the conclusion that marijuana, pot, grass, whatever you want to call it, is probably the most dangerous drug in the United States, and we haven’t even begun to find out all of the ill effects, but they are permanent ill effects. Radley Balko: And despite Bill Clinton’s infamous line . . .  Bill Clinton: I didn’t inhale, and never tried it again. Radley Balko: His administration continued the policies of his predecessors. By the mid-1990s, polls showed a growing portion of the public started to realize that pot wasn’t the dangerous gateway drug politicians portrayed it to be. Momentum was building to legalize the drug for medicinal purposes. California and Arizona went first, as voters passed ballot initiatives in 1996. But the Clinton administration saw these referendums as a direct attack on the authority and supremacy of the federal government. The administration made clear that despite the will of voters, it planned to aggressively enforce the federal prohibition on marijuana — starting with threats to prosecute doctors in the state who recommended the drug. Jacob Sullum: This was seen as an intolerable threat to the prohibition regime, not just by conservative Republicans, but by supposedly liberal Democrats. So the Clinton administration said, “We have to do something about this. This cannot be allowed. And we can’t have doctors recommending marijuana to their patients who then have some way to actually get the marijuana and use it to relieve their symptoms. This is intolerable.” Radley Balko: The month after the two ballot initiatives passed, the Clinton administration held a well-publicized press conference, covered by C-SPAN, to denounce the voters of both states. Donna Shalala: We have a problem. Increasing numbers of Americans believe that marijuana is not harmful.  Radley Balko: Health and Human Services Secretary Donna Shalala.  Donna Shalala: In California and in Arizona, voters sent very confusing messages to the teenagers in those states, and to young people all across the country. And let me make it very clear. This administration is opposed to the legalization of marijuana. Radley Balko: Shalala was joined by Attorney General Janet Reno. Janet Reno: Despite these initiatives, we want to make clear that federal law still applies, and federal officials will continue to apply the law as it has always done, on a case-by-case basis. Barry McCaffrey: This is not medicine. This is a Cheech and Chong show. Radley Balko: And here’s President Clinton’s drug czar, Barry McCaffrey. Barry McCaffrey: Clearly the only thing that’s not under debate is whether federal law is still operative. It’s unaffected by these proposals. Radley Balko: Clinton administration officials went out of their way to emphasize that there was a scientific process for approving drugs, and that federal agencies like the FDA and USDA had looked into medical marijuana and simply found no beneficial use for it. Alan Leshner: Let me be clear. There is not an existing body of scientific evidence to suggest that smoked marijuana is a viable, effective medication. Radley Balko: Alan Leshner, director of the National Institute on Drug Abuse at the time, echoed the same talking point. Alan Leshner: The scientific community gave up the study of marijuana as a potential medication in the 1980s. We at [National Institutes of Health] have received only one proposal in the last 10 years to examine smoked marijuana as a potential medication, and that failed peer review. So there is not a body of evidence to suggest that this is a viable medication. Radley Balko: But this narrative pushed by Clinton administration officials isn’t exactly what happened. After the break, we’ll dig deeper into the history of stigmatizing and criminalizing marijuana — and how Peter McWilliams found himself in the middle of that fight. [Break] Radley Balko: Pot has been used for medicinal purposes going back thousands of years. But in 1937, it was subjected to a heavy tax, due in part to racist fears that Black men used the drug to seduce white women, and also its association with Mexican, South Asian, and West Indian immigrants. Sullum says the tax was burdensome enough to all but eradicate any legal market for the drug, despite the vocal objections from groups like the American Medical Association. Jacob Sullum: AMA at that point in the late ’30s was saying, “Look, we think this still has medical use, you shouldn’t make it impossible to use for medical purposes or to research for medical purposes.” Congress pretty much dismissed those concerns. Radley Balko: Over the next few decades, a number of studies touted medicinal benefits of the drug, but they were dismissed by Harry Anslinger, head of the agency that would later become the Drug Enforcement Administration, or DEA. The Supreme Court struck down the marijuana tax in 1969. That opened a potential window for marijuana to go mainstream once again. But the Nixon administration responded with the Controlled Substances Act, which imposed a federal prohibition on a host of drugs that it classified based on their medicinal value and potential for abuse. Giving marijuana a Schedule I status cemented a firm stigma on the drug. Nixon would later be heard on one of the infamous White House tapes discussing the strategy. Richard Nixon: I want a goddamn strong statement on marijuana. Can I get that out of this son-of-a-bitch Domestic Council? H. R. “Bob” Haldeman: Sure. Richard Nixon: I mean, one on marijuana that just tears the ass out of them … Radley Balko: It’s pretty hard to make out, but Nixon says: “I want a goddamn strong statement on marijuana. … I mean, one on marijuana that just tears the ass out of them.” He adds a moment later, “I want to hit it, against legalizing and all that sort of thing.” Richard Nixon: I want to hit it, against legalizing and all that sort of thing. Radley Balko: Nixon’s decision to give cannabis Schedule I status made it all but impossible to do any medical research on the potential benefits of the drug. Jacob Sullum: Marijuana’s Schedule I status made it relatively hard to research compared to other drugs. Secondly, there were a series of bureaucratic hoops you had to jump through, historically, in order to do research on marijuana specifically. And that didn’t even necessarily apply to other drugs that were used illegally as intoxicants. You had to go through several different approval processes.  Another barrier was that, for many years, the only legal source of marijuana for research was this one contractor at the University of Mississippi that worked for the federal government, worked for the National Institute on Drug Abuse. And they produced the only source of marijuana that could legally be used in research. The fact that this was available through the National Institute on Drug Abuse tells you something, because it wasn’t an organization that was interested in researching the positive uses of marijuana; it wasn’t interested in looking into its medical utility. The research was focused on abuse.  And even if you did manage to get approval for a medical study, you would have to be getting marijuana from this one source, which was not very high quality. There wasn’t much variety. The quality was not very high. And it was hard to get to begin with, because you had to go jump through all these hoops to get it approved. People chanting: Stop arresting patients for medical marijuana! Stop arresting patients …  Radley Balko: The 1996 ballot initiatives were an aggressive move by voters to break through the stalemate. Advocates expected to face government resistance — and they were right. The Arizona state legislature passed a law that effectively nullified that state’s ballot initiative. And as some Californians moved cautiously forward, the Clinton administration began threatening doctors who prescribed medical marijuana. They began filing lawsuits against pot clubs, and going after operations. In one instance, the DEA staged a pre-dawn raid of a San Francisco pot club, confiscating about 2.5 pounds of pot. And in another, armed DEA agents seized 164 plants from a medical marijuana shop in northern California. The decision to enforce federal law over the will of state voters was on its face undemocratic. And the choice to use such overwhelming force was wholly unnecessary.  The raids were intimidation: to send a message to these businesses, and California voters, that the federal government would resist any challenge to its authority. These weren’t kingpins fighting bloody street wars over turf. They were licensed businesses, operating openly under state law. The raids were intimidation: to send a message to these businesses, and California voters, that the federal government would resist any challenge to its authority. Despite the implicit threat, citizens continued to make themselves heard. In 1998, medical marijuana ballot measures passed in Washington state, Oregon, Alaska, Nevada, and D.C. And in Arizona, voters overrode the legislature and approved medical pot for a second time. Barry McCaffrey: This is not an issue of medical use of marijuana. We said it’s disguised as a — it’s a hoax proposition. Radley Balko: But Clinton officials like drug czar McCaffrey insisted that the medical marijuana initiatives were just a ruse to get the drug legalized outright.  Barry McCaffrey: And you may rest assured that we see this as a direct threat to the U.S. national drug strategy. We’re going to try and move on it in a balanced and sound way. Jacob Sullum: The fact that they went to such lengths to try to stop medical use of marijuana tells you how terrified they were of this as a precedent. And I would say that they were right — that ultimately it proved to be the case, that allowing medical marijuana was an important first step toward broader legalization. That is the way it played out ultimately. So they were right to be worried. Radley Balko: In California in particular, it became relatively easy to get a medical marijuana card, and some took advantage of that lenient policy to use the drug recreationally. But there were also plenty of sick people who actually needed it. And Peter McWilliams was one of them. Peter McWilliams: And so this was my first epiphany, was over here, watching my normal run to the bathroom, with one puff of marijuana, turn into a meandering raid on the kitchen. [Laughter and applause] And so the one epiphany was over here, and I said, “I am not going to rest until medical marijuana is available to every sick person who needs it in the United States.” [Applause]  Radley Balko: McWilliams by that point was a minor celebrity, known for his poetry and his numerous books on computers, meditation, and self-help. He had also started working with Todd McCormick, who had become one of the world’s leading experts on cultivating pot.  McCormick had a seed collection well into the thousands. He had been breeding them to create strains to treat specific ailments, and — as McCormick himself would admit — for recreational use as well. Todd McCormick: I was just home growing. I had a lot of money and a big house, and I was just really growing at my own home. I was looking at doing research. I’m interested in cannabinoids and terpenes and the combinations. And what I was looking at doing is trying to go through my seed collection and build up what would be a living library, like I have now, of valuable and selected varieties. Radley Balko: McCormick was also a key organizer behind a number of initiatives to inch the drug closer toward legalization. He and McWilliams became fierce advocates for cannabis rights at about the time that the federal government was asserting its power. And that made them prime targets. Tom Ballanco first met them both at a birthday party for a mutual friend. Thomas Ballanco: I happened to be in LA for Jack’s 50th birthday party. He invited me over to Todd McCormick’s house. The directions to get there were: “Go down Sunset, turn on Stone Canyon Boulevard, it’s the first big gray castle on your left.” So only in Bel Air do you need big and gray to identify which castle we’re talking about. But I walked in, there’s two giant plants right there at the gate. I’m like, “Wow, somebody is really going after it.” There was a sign that said “Party on the third floor.” Got in the elevator. There’s another plant in the elevator. Got up to the top, bunch of people, there’s Jack and we’re talking, celebrating his birthday.  And at some point, he’s like, “Come here, I want to show you something.” Takes me out onto the porch. And at that point, it was the most cannabis I had ever seen in one place. Thousands of plants — like there wasn’t surface area in this yard that didn’t have a plant or clones or something growing on it. And he’s like, “This is all legal because of Prop 215.” And I said, “Well, I’m glad you’re giving me that advice and I’m not giving you the advice.” But I was amazed. Not disconcerted, but, I will say, a little bit shocked.  One of the party guests there was Peter McWilliams, and he was very happy to share his role in all this, that he and Todd were partners, and they were gonna revolutionize patients’ access to cannabis. Todd McCormick: There was no drugs or guns, or it’s not like I had pot for sale or anything like that. I was just extravagantly growing the seeds I had at my house. Radley Balko: Todd McCormick again. Todd McCormick: I was buying soil by the pallet. I had a lot of resources. I had a staff of five working for me, helping keep the house clean and organized and gardening. And it wasn’t really a big deal. I mean, it sounds like, “Oh, you had all these thousands of marijuana plants growing in your house.” It was just like flowers everywhere and planting seeds, and it’s really all it was. And because I was going through what’s called a “sex and selection” phase of it, I would have thrown away 90 percent of those plants because like out of a pack of 10 seeds, I was only looking for one plant. So nine of the plants would have been discarded, and the one plant would have been kept.  Radley Balko: McCormick says he never had any intention to sell the plants. But he thinks a local dispensary owner with a personal beef said otherwise and began working with the feds to set him and McWilliams up for arrest. Radley Balko: The federal raid came on July 29, 1997. Todd McCormick: I was just home, one of my friends showed up, and I had to go to Home Depot to pick up some stuff. When he and I left to go down the street, I was pulled over by a police car, and they brought me to the little fire station across from the Bel Air gates, where there were a lot of police cars. They proceeded to use about 90 officers, raided my home. I had no guns, no drugs, no illegal income, my taxes were paid. I mean, there was nothing there other than flowers growing in my backyard and in my basement and various places.  But they raided me, and I will never cooperate. They brought me down. The next morning, I was charged with manufacturing of marijuana, and held on a million-dollar bond, which was eventually lowered to half a million dollars and posted by the actor Woody Harrelson. Radley Balko: McWilliams himself didn’t grow pot. So the federal government came up with a creative way to go after him. They said by paying McCormick to write a book about growing marijuana, McWilliams was actually funding the cultivation of illegal drugs. McWilliams himself didn’t grow pot. So the federal government came up with a creative way to go after him. Todd McCormick: Peter had given me my book advance, and had basically enabled me to be able to rent my house, buy my food, get the tools I need — just like any production company would with anybody. If you hire a rock star to produce an album and you give them an advance, there’s a chance he’s going to spend it on, you know, girls and drugs and all sorts of stuff that’s beyond your control. Doesn’t mean that the music production company should be prosecuted for the rock stars’ activities. But in this situation, in a sense, that’s exactly what happened. I took my money. I rented a big house in Bel Air. I started growing cannabis thinking it was legal, then got busted. And Peter was prosecuted for providing me with the money that I used to rent my house and buy my food and buy my soil and growing equipment. And it was pretty much that. They called him a drug kingpin because of him financing me. But it wasn’t the situation at all. I mean, Peter had never made a dollar off of selling cannabis or any drug in his life. He was a multimillionaire from selling books, and that’s what he did really well. But they were looking for examples more than they were looking for justice. So they came after Peter and I pretty hard. “They were looking for examples more than they were looking for justice. So they came after Peter and I pretty hard.” Radley Balko: The media had dubbed McCormick the “Pot Prince of Bel Air.” The feds raided Peter McWilliams’s home later that year. The police took the bulk of McWilliams’s files, computer, and papers. They confiscated his notes, notebooks, research, and many of his books. Thomas Ballanco: This is a prolific author who — if there’s a manic part to manic depression — when he was creative, could be working on a dozen different projects. So the disruption that occurs when feds come in and start throwing around papers, unplugging hard drives, taking your computer, was really devastating to him as much as the incarceration. I think the aftermath was probably a pallet worth of file boxes of papers and outlines of books. To take that away from an author is a tremendous thing. You can’t just blink that, “Oh, yeah, I wrote it. I can remember it.” No way. So it was a dramatic impact on not just his personal but his professional life. Radley Balko: Facing federal conspiracy charges for his funding of McCormick’s marijuana operation, McWilliams spent about a week in jail. Unable to access marijuana while he was there, he wasn’t able to keep down his medication. He quickly began to deteriorate. That’s when Thomas Ballanco first signed on to be his attorney. Thomas Ballanco: The person I saw in the jail after just three days of incarceration looked entirely different from the person I had met on two previous occasions — the guy who had a full, lively complexion, was happy, looked alive, even though I knew he was literally fighting for his life against these diseases.  In prison, his eyes were sunken. He was gaunt. His complexion had turned to white. And this is just only a few days of lock-up, so that first foray into federal lock-up was a harbinger of what would become his future. Radley Balko: McWilliams’s bail was first set at $1 million, then lowered to $250,000. And though he had made a lot of money from his books, he also spent extravagantly, both on himself and on the people close to him. Todd McCormick: There were times when Peter was a multimillionaire — like when I met him. But then, there was post-bust Peter, depressed. Peter spent more money quicker than anyone I’ve ever seen spend money in my life. By about 1999, I would say ’98, he was probably, I wouldn’t say broke because that wouldn’t be it, but he had used his resources not too wisely. Radley Balko: McWilliams didn’t have bail money, and he didn’t want to pay out a hefty 10 percent sum for a bond. Thomas Ballanco: Despite the money he had, he didn’t have $50,000 he wanted to just throw away to a bail bondsman to get out of jail. He did have properties. Now, he bought those properties. In the name of his mother was the house he lived in, and he had on the same street in the Hollywood Hills, a house that belonged to his brother. Peter bought them both, but he titled them to his family members.  Now, in the time since, I’ve had a lot of clients who put properties in the names of their family members because they’re trying to hide assets that they might have gotten from ill-gotten gains.  These were Peter’s legitimately gotten gains, but it was his way of literally sharing the wealth, leaving some legacy to his family. And his mother and his brother were both willing to put these homes up. So Peter, instead of doing the $50,000 to the bail bondsman, had his mother’s house and brother’s house put up as security for his bond. Radley Balko: That decision would prove catastrophic. It essentially forced McWilliams to choose between his family’s livelihood and his own life. Because one of the conditions of McWilliams’s bail was that he could not use any illicit drugs, including medical marijuana. A violation would risk not only going back to jail to await trial, but forfeiting his mother and brother’s homes. Thomas Ballanco: If he doesn’t use cannabis, his life is threatened. If he does use cannabis, his mother’s and brother’s homes are threatened. “If he doesn’t use cannabis, his life is threatened. If he does use cannabis, his mother’s and brother’s homes are threatened.” Radley Balko: McWilliams ultimately chose his family. And without the ability to use medical cannabis to help keep his medicine down and stimulate his appetite, McWilliams’s health continued to suffer. Todd McCormick: Peter McWilliams’s condition worsened incredible after he got arrested. I mean, Peter was dealing with AIDS and cancer simultaneously, so he was not in very good shape. His mood deteriorated, his health deteriorated, his ability to make money, write books — all of it fell away. I mean, it was devastating. Radley Balko: As McWilliams’s health declined, so too did his odds of beating the charges against him. Because Prop 215 was a state law, the federal courts refused to let federal juries hear about it. This meant defense attorneys were barred from utilizing the most likely defenses. For example, they couldn’t tell juries that medical marijuana was effectively legal under state law. They couldn’t say that a defendant needed the drug for medical reasons. And they couldn’t say that a defendant had mistakenly thought or was erroneously told by a lawyer that Prop 215 meant they couldn’t be prosecuted. Thomas Ballanco: You can’t mention “medical” and “marijuana” in the same sentence. You can’t refer to Proposition 215. And you can’t use medical necessity as a defense.  Todd McCormick: I was blown away. When I learned that I could not present a medical necessity defense in federal court, I also learned I could not present what’s called advice of counsel. Because prior to planting all those plants in my Bel Air mansion, I went and spoke to a lawyer and said, “What are my rights?” And he basically explained interstate and intrastate commerce and how they’re different, and if I did not distribute any of the cannabis, that I would be OK. So I thought, under advice of counsel, that I would be legal if I didn’t let any of the cannabis go beyond my gate, so to speak. But because the government can come in with intent to distribute, that’s what I was charged with. Because they can crawl into your head and charge you with your intentions even if they’re not true.  Jacob Sullum: Under federal law still, there is no legitimate use of marijuana except in federally approved research. There’s no legitimate medical use, there’s no legitimate recreational use. So when people were being arrested for producing or supplying medical marijuana in states where that was legal and being charged under federal law — legally, it was completely irrelevant that the state had decided to allow this. And that’s why and when people were tried on federal charges, they were not allowed to say this was for medical use. Another aspect to that is typically the juries also did not know what penalties people were facing. So if you have medical marijuana providers who grew a large enough number of plants, they could be facing mandatory minimum sentences, five-year sentences, 10 year sentences. Radley Balko: McWilliams and McCormick began to see the writing on the wall. They were guilty of violating federal law. And their most persuasive defenses — at least the defenses that would be most likely to sway a jury — would be prohibited in court. So they began to negotiate with prosecutors. Here’s McCormick. Todd McCormick: Two deals were: Accept a guilty verdict, and your right to appeal. You get to keep your right to appeal, but if you lose your appeal, you come in and do the five years. But, you can stay out on bond pending your appeal.Or you can waive your right to appeal, which at the time was not an option for me, because I believed in the appellate system and I thought the judge was wrong. So I wanted to fight my appeal. So you want to fight your appeal, that’s great. You can stay out of bond, pending your appeal, but if you lose your appeal, you come in and do the entire five years. If you want to waive your appeal, you can go in before the judge and they can give you anywhere from zero to 60 months, depending on the judge. So you’re gonna put the leniency into the judge. I had no faith in Judge George King, none at all, after watching him and his decisions for three years, none at all. So I chose to keep my appellate rights, to stay out on bond for five years, and to roll the dice and hope I win my appeal so that I could go back and present my defense and go to trial. Radley Balko: There’s some disagreement between McCormick and Ballanco about how Peter McWilliams approached his own plea negotiations back in 1999. Here’s what Ballanco recalls and he was acting as Peter’s attorney at the time. Thomas Ballanco: Peter had been emphatic that we need to go to trial on this case. Now, this was a federal case, so that involved 10-year mandatory minimums. It could have gone higher than that. He thought it was important to do that. Todd McCormick, on the other hand, felt like the risk was very high. They were offering a five-year prison term that might be better than the risk of 10 or even 20 years incarceration. Nobody wants to do a day in jail. These are difficult decisions for anyone.  To complicate matters, the feds made it — all the offers were considered global. Which is to say, they’d only extend the offer if both Peter and Todd accepted. So Peter didn’t want to be in the position where he forced Todd to go to trial. Todd, at the same time, didn’t want to make Peter do time in jail when Peter didn’t want to. So these were ongoing negotiations. Radley Balko: But according to McCormick, McWilliams had resigned himself to a conviction. Todd McCormick: Peter accepted the deal that he would waive the right to appeal, and he would allow the judge to sentence him from anywhere from zero to 60 months because Peter thought the judge might be compassionate. I thought that was crazy. Radley Balko: In the end, it wouldn’t matter. McWilliams would die before the case got that far. As his lawyers negotiated with federal prosecutors, a fire broke out in McWilliams’s home. It destroyed any of his work that hadn’t already been confiscated by the federal government. The fire also destroyed the heater in McWilliams’s pool, so he began spending more time in his bath to seek relief from his nausea. McWilliams was facing years in prison. He was sick and getting sicker. He couldn’t use the one medicine that seemed to boost his health. And to top it all off, he was now living in a fire-damaged home.  The system was breaking him. Thomas Ballanco: So he was running his bath — maybe he had taken Marinol, maybe he had taken the GHB, whatever it was — on his way to the bath, he had passed out against the bathroom door, so that he was in a sitting-up position, unconscious, invariably. Because any time that passes, if Peter, you know, got more than four hours in his existence, he’s going to be vomiting. So he ends up vomiting while he’s in this sitting-up position passed out against his bathroom door. It has nowhere to go but gurgles back into his lungs. So he ended up asphyxiating and drowning in his own vomit — which is just a bittersweet description of, you know, he’s denied the medicine that controls his nausea. Yes, there were complications. Yes, there were other things going on. But ultimately, the mechanism of his death is vomit. Radley Balko: Todd McCormick was in prison at the time. The feds had seized on a traffic ticket, revoked his bond, and locked him up. Todd McCormick: I was in Terminal Island federal prison when Peter McWilliams died. I got the news from probably my mom, when I called that day and said, “How you doing?” And I was devastated. I thought very highly of Peter. Peter had mood swings, and, you know, sometimes he would be your best friend, sometimes he could be your worst enemy. But most of the time, Peter was a very compassionate and empathetic person that cared a lot for other people. When I heard that he passed away, it was really heavy on me. Before I went to prison, Peter and I were talking about writing “Death 101,” and how to deal with death, because death is imminently part of all of our lives. A lot of times people don’t face it because they don’t want to face their own ending. But I made the comment, or I made the argument that it was a key to unlocking your life’s happiness, because when you realize the party is going to come to an end, you can just enjoy it. Nobody was with him when Peter died. But his mother did find a poem next to his bed, that was a poem about death. I believe that Peter, being the sophisticated mind that he was, would never write a suicide note. But he would write a poem. And it basically said, when I go, let me be. And I thought it was really beautiful. Radley Balko: McWilliams’s life, advocacy, and death made national news, across the political spectrum. William F. Buckley — the father of modern conservatism — was friends with McWilliams and eulogized him in the pages of National Review. Peter McWilliams touched a lot of people. Online memorials and eulogies continued in the years after his death. Paul Stanford: And he died because of marijuana prohibition. Julia Rose: Please remember Peter McWilliams and in his words, “While alive, live.” Radley Balko: It has been a quarter-century since Peter McWilliams died. Recreational marijuana is now legal in more than 20 states, and medical marijuana is legal in at least a dozen more. The federal government largely leaves the states alone to enforce their own laws. Thomas Ballanco: Marijuana legalization would not have happened without the AIDS epidemic and the dramatic emphasis from the AIDS and gay community about the medicinal properties, the real world, this actually helps. This is a medicine that helps, for people who have no place else to turn. Todd McCormick: It was people that were suffering. I mean, if it wasn’t for cancer patients like myself and AIDS patients like a lot of my friends who had absolutely nothing to lose, I don’t think we would have seen the push as hard as we did, because people like me were spearheads. There wasn’t many of us that were trying to fight this battle at the time because people were afraid of being locked up. Thomas Ballanco: And Peter wasn’t an activist for this but finding himself at the epicenter. He was gay. He had AIDS. He lived in West Hollywood. And he was an entrepreneur. So he really set about after Prop 215 passed and said in California, medical patients can assert a defense of medical necessity in criminal trials. That’s all it said. Huge change. And Peter said, “We’ve got to make this medicine available to anybody who wants it.” Peter was at the forefront of, how do we get sick people this medicine now that the law says we can do it? Todd McCormick: That whole case was beneficial to the movement in the way that it got people talking. Thomas Ballanco: And it’s easy to look back and say, “Oh, well, they should have done this, or they should have done that.” But what Peter and Todd were acting from was a sense of urgency. These were both patients. Both of their lives had been dramatically improved from the use of medical cannabis, clandestinely at first. These were people suffering with medical conditions that got recommended by a physician, “Hey, you know, I’ve read, I heard marijuana can actually help in a situation like this.” So they were evangelists, if you will, trying to spread that news.  Related Oregon’s Decriminalization Vote Might Be Biggest Step Yet to Ending War on Drugs Radley Balko: Ultimately, Peter McWilliams’s legacy was to usher in a kinder, more compassionate, more humane approach to drug prohibition. Those who knew him say that would have pleased him, though he’d have been disappointed that it took so long. But if he had lived, they say, he’d also still be fighting. He’d have continued fighting until drug prohibition itself was completely gone. Thomas Ballanco: If Peter stood for anything, it was liberation of the individual. Be who you are, be yourself, don’t hurt other people, but enjoy your life. Enjoy your being. And I miss that. I miss that about him. I am ashamed that I couldn’t stop the government from squelching out that light, because it was a light and it was a truth. We suffer from the loss of truth like that. Radley Balko: Tom Ballanco shared an anecdote with us that really illustrates the cruel, often absurd consequences that these policies inflicted on their victims. It takes place late in the government’s case against McWilliams and McCormick, as the two arrive in court for a hearing. Thomas Ballanco: And so we’re shuffling into the courtroom. And Peter and Todd had been talking, and Peter at that point was in a wheelchair. And normally I wheel him in like, you know, I’m a mafia lawyer, wheeling in my client. But at this point, because Todd and Peter were talking, Todd took the handle to the wheelchair, and he was wheeling him through the door, and I was walking behind him with the other lawyers.  As the door opened, it was these swinging doors, it like blew Todd’s hair off the back of his neck as it was swinging open. And it revealed this six-inch scar he has on the back of his neck from a surgery he had when he was like 9 years old.  “So were they activists? Yeah, but they were still patients. They’re still wounded people. And they’re still facing the full force of the U.S. government.” And I’m like, these are our wounded. The feds had put in point a guy in a wheelchair and a guy who had the five vertebrae in his neck fused when he was 9 years old. That’s who’s leading point on this effort. The lawyers are all behind him. So were they activists? Yeah, but they were still patients. They’re still wounded people. And they’re still facing the full force of the U.S. government, and it just should not be that way. These are policy discussions. They shouldn’t be forced on individual human beings. And these lives should have been spared. Todd’s still alive, but he didn’t need to spend five years of his life in federal prison. Peter certainly didn’t need to die. Radley Balko: We reached out to Peter McWilliams’s brother Michael, hoping to interview him for this episode.  He politely declined, but he did share a touching written tribute that he said we could use. He wrote:  “Peter was an extraordinary person whose creativity flowed in so many different directions. He was different things to different people: A poet; a self-help guru; a computer expert; a survivor of depression; a self-published author, publicist and businessman. … And yes, a crusader on the side of the angels in the war on drugs. So please don’t be offended when I say that I believe my brother’s enlistment in the drug war not only hastened the end of his life, but overshadowed his legacy as a writer.  Peter will always be remembered by me as a humane gay artist rather than a casualty in the futile war on drugs.” Next time on Collateral Damage. Sequoia Pierce: We were hanging out watching TV, laying in bed, and we heard like an aggressive knock on the door. And then we heard like glass shatter. I ran into the closet. And then he ran into the restroom. I really kind of wasn’t really aware of what just had happened before my eyes. Andre Lagomarsino: The Fourth Amendment in Nevada has been severely degraded with the way that the drug war has been pursued. Radley Balko: Collateral Damage is a production of The Intercept.  It was reported and written by me, Radley Balko. Additional writing by Andrew Stelzer, who also served as producer and editor. Laura Flynn is our showrunner. Ben Muessig is our editor-in-chief. The executive producers are me and Sumi Aggarwal. We had editing support from Maryam Saleh.  Truc Nguyen mixed our show.  Legal review by Shawn Musgrave and David Bralow.  Fact-checking by Kadal Jesuthasan. Art direction by Fei Liu. Illustrations by Tara Anand. Copy editing by Nara Shin. Social and video media by Chelsey B. Coombs. Special thanks to Peter Beck for research assistance.  This series was made possible by a grant from the Vital Projects Fund.  If you want to send us a message email us at [email protected] To continue to follow my work and reporting, check out my newsletter, The Watch, at radleybalko.substack.com. Thank you for listening. The post Episode Four: Criminalizing Care appeared first on The Intercept.