Steve McWilliams was arrested Oct. 11 after agents with the U.S. Drug Enforcement Agency raided his Normal Heights yard and uprooted about two-dozen marijuana plants. But the case against him was started way back on July 6, 1999, when the local city-county narcotics task force raided a medicinal-marijuana growers cooperative in Hillcrest and counted more than 400 pot plants.
When no charges were filed after the 1999 raid, McWilliams, San Diego's foremost crusader for the rights of sick people to use marijuana as medicine, sued the city of San Diego in an effort to get the pot back to its rightful owners. In exchange for McWilliams dropping the suit, the city agreed to establish a medical marijuana task force. Although it hasn't proceeded as swiftly as McWilliams would have liked, the task force is about to produce results. The City Council will soon consider final approval of landmark medical marijuana guidelines that would not only establish a system for patients in San Diego to legally possess pot but could also serve as a model for other cities to follow suit.
Ironically, the very same raid that took McWilliams down the path toward his ultimate goal might be what lands him in prison for upwards of five years.
You see, the 25 plants DEA agents pulled out of McWilliams' yard last month don't fetch much of a penalty-little more than a slap on the wrist-but when the haul reaches into the hundreds, now we're talking. When it comes to marijuana-cultivation law, there's no statute of limitations, and since no charges were filed after the 1999 raid, federal attorneys are able to present as evidence against McWilliams the 448 plants they grabbed from the Hillcrest co-op.
“The feds really could not have come in here and bothered us with the small garden we had this year-just these 20-some plants,” McWilliams said. “The only way the feds had any excuse to bother me was to go back and resurrect the case from '99.”
The whole episode makes one wonder what good all that Proposition 215 business was six years ago. Didn't California pass a law that says a guy can grow and smoke marijuana to alleviate symptoms of various illnesses, as long as he has a doctor's note?
Well, yes, but someone forgot to ask the U.S. government if that was OK.
The Bush Administration has stepped up its crackdown on growers of medical marijuana, arguing that in the eyes of the federal government, marijuana is still classified under the Controlled Substance Act (CSA) as a Schedule 1 drug. It's illegal-Prop. 215 or no Prop. 215. California law is suitable for framing, but since it's trumped by federal law, it's has little practical value.
A Schedule 1 drug is one that has no medicinal value and carries a high propensity for abuse. Doctors are not allowed to prescribe Schedule 1 drugs, and it's nearly impossible to get federal grant money to study their potential as medicine.
DEA Chief Asa Hutchinson put it clearly in a July 2002 letter to local law enforcement officials. “As a Schedule 1 substance, marijuana has no currently accepted medical use in treatment in the United States,” he wrote. “State law that claim to permit the cultivation, distribution and possession of marijuana for medical use undermine the CSA and the efforts of law enforcement to effectively control marijuana.”
In his letter, Hutchinson offered federal help in keeping marijuana out of people's hands: “For example, if faced with the prospect of being required to return marijuana to an individual, DEA may be able to obtain a federal court order to seize the marijuana for proper disposition.”
Those are words of war, McWilliams said. “The Department of Justice is responsible right now for the assaults on all the cannabis clubs in California, Oregon and Washington,” he said. “Cannabis club providers, compassionate providers and individual patients are being targeted by the federal government as a way of silencing the law.”
Not only does the DEA's hard-line position irritate McWilliams, it also puts him in a tight spot. Nobody who knows him argues that his efforts over the years haven't been genuinely aimed at providing people in need with whatever medical relief marijuana has to offer. But legally, it may come down to this: Did he grow pot? Is growing pot a federal crime? Case closed. It's possible that no testimony regarding medicinal value will ever find its way into the courtroom.
“The federal government does not recognize that cannabis has any legal medical properties,” McWilliams said, “so you can't even talk about medical use, which makes this one interesting because the whole thing is about medical use.”
Nonetheless, David Zugman, McWilliams' lawyer, will try to find a way to make medicinal use a pertinent part of the trial. The state of California made legislative findings that pot has medicinal value when it made Prop. 215 law; time will tell if such state-level evidence is going to matter in federal court.
Zugman will likely argue that only a fraction of those 448 plants is Hillcrest were his. McWilliams says 10 people shared the Hillcrest garden and that some of the plants contained no buds. In his 1999 lawsuit against the city, he claimed only 25 potent plants. Added to the two dozen plants from the Oct. 15 raid, that count wouldn't come close to the 100 plants required to trigger a five-year mandatory minimum sentence, so if McWilliams can cast doubt on the government's assertion that he controlled all of the Hillcrest co-op, he could avoid time behind bars.
Zugman has other tricks up his sleeve, but he's mum on the specifics. He said in a pre-trial hearing on Monday that there will be some “complexities” to his arguments that the government may need ample time to respond to.
“The issues that I'm raising in this case have never been raised before,” he said.
Zugman said he hopes the McWilliams trial results in a landmark case for medical marijuana. It certainly has been tried before. Two years ago, lawyers for the Oakland Cannabis Buyers Cooperative took their case all the way to the U.S. Supreme Court, attempting to argue that people have a constitutional right to grow marijuana, for medicinal purposes, for another sick person. However, the majority of justices didn't buy it.
For his part, McWilliams, who says marijuana helps him deal with numerous ailments stemming from a 1986 traffic accident in Colorado, is now without the drug he claims makes his days tolerable. Under the terms of his release from custody, he's not allowed to smoke pot. He's allowed to use Marinol, the off-label version of the drug, but he said that doesn't come close to relieving his symptoms the way marijuana does.
McWilliams said he suffered “substantial brain trauma” in the accident, and he had to undergo significant cognitive retraining. He can recite a long list of medications he was on, and he became addicted to some of it. “I was just totally fucked up,” he said.
One day, he attempted suicide. Full of morphine, he slit is arms and throat. “I came out [of the hospital] looking like a Frankenstein, and after that I decided that I had to quit all of the medications that I was on.”
Marijuana, he said, helped him kick the painkillers. “I had gotten off a lot of pain pills and other stuff, and marijuana had really saved my life and changed my life,” he said.
These days, he uses it to alleviate muscle spasms, migraines and some brain irregularities. “The pot helps to just kind smooth everything out,” he said. “Without the marijuana, it's a lot more difficult for me to concentrate, my pain level is higher and, obviously, it hinders my ability to act and participate in my own defense.”
McWilliams moved from Colorado to California in 1995 to help get Prop. 215 passed. He spent some time advocating for medicinal pot in Santa Cruz before moving to San Diego to spearhead marijuana advocacy here.