From The Isthmus
Madison Wisconsin Weekly
edit@isthmus.com
http://wwwdev.thedailypage.com/
http://wwwdev.thedailypage.com/cgi-bin/plato.cgi

April 9, 1999

Dane County authorities tried to incarcerate terminally ill man for smoking pot.

By BILL LUEDERS

Deborah McCants would like to ask Dane County authorities a simple question:

"At what point does mercy kick in?" The answer, based on her experience, is "apparently never."

"On March 18, the Dane County District Attorney’s Office, cued by the county’s alternatives to Incarceration Program, sought to jail Deborah’s husband, Abe McCants, even though he was dying of cancer. His crime: smoking marijuana, which Deborah McCants says brought him relief from disorientation caused by heavy doses of morphine and Dilaudid. The justice system didn’t care that Abe McCants was using these addictive narcotics, because they were legally prescribed. But his use of marijuana, which cannot be prescribed despite its known medicinal utility, violated. the terms of his release on an electronic monitoring program.

Judge Angela Bartell, after ascertaining that Abe McCants was complying with other aspects of the program, refused to return him to jail. McCants went into a coma that very afternoon; he died early the next morning at home.

"They prosecuted him until his last day, "says Deborah McCants, Abe’s wife of 18 years; the couple had seven children. Abe, a cement finisher described in his obituary as "wise, opinionated, fun loving, funny, prickly, generous, good-hearted, passionate and full of life," was 47.

The case has left observers appalled by the callousness of Dane County authorities. "I was very disappointed with the way they conducted themselves," says Dr. Feilpe Manalo, McCants’ physician at Group Health Cooperative. "I thought they were overzealous in trying to impose the law on a dying man."

All medical science can do for people like McCants with advanced terminal cancer, says Manalo, is to try. to keep them comfortable: "if marijuana is making them feel better, why shouldn’t we allow it? Why should we make them criminals?"

Attorney Ed Garvey, the Democratic candidate for governor last fall, witnessed McCants’ March 18 hearing while waiting for another case.

"I was shocked," says Garvey. "He clearly was in terrible shape. It seemed to be beyond the pale that anyone would call this man into court and try to put him in jail. It was a perfect example of someone living by rules without common sense. Somebody exercised some pretty poor judgment.

" Allen St. Pierre, executive director of the National Organization to Reform Marijuana Laws (NORML) in Washington, D.C., says prosecutors are usually reluctant to enforce marijuana laws against terminally ill patients. He calls what happened to Abe McCants in Dane County not only unusual but "simply, in a word, malevolent."

The DA’s office refuses to discuss its actions. Mike Alesch, manager of the Alternatives to Incarceration Program, blames McCants and others for what happened. He insists the system gave McCants preferential treatment in calling for a hearing, since it could have returned him to jail without one.

Alesch sums up his position by rephrasing Deborah McCants’ question: "At what point does a program ignore the rules?" The answer, apparently, is never.

Abe McCants was not a saint. He spoke his mind even when it was imprudent, and had several minor scrapes with the law, including an arrest for drug paraphernalia.

On Sept.18, 1998, Maple Bluff police tried to pull McCants over for driving too fast. McCants kept going to his home on North Seventh Street, and ran for the door. The upshot McCants was convicted on two counts of resisting an officer and one count of disorderly conduct. The DA’s office ignored a request for leniency on grounds that McCants had terminal stomach cancer; on Jan.16, 1999, he reported to the Dane County to begin serving a 5-month sentence.

McCants’ health quickly deteriorated, as the cancer spread to his liver and lungs. His new lawyer, Jordan Loeb, arranged for a hearing before Judge Bartell. Dr. Manalo wrote a letter to the court noting the advanced state of McCants’ cancer and estimating his life expectancy at about six months: "I would recommend that for humanitarian consideration, he be released to the care of his family."

At a Feb. 9 hearing, Bartell agreed, ordering that McCants be released under the Alternatives to Incarceration Program (ATIP). But McCants remained in jail, in great pain and unable to receive medication, until Feb.19.

Under A’TIP rules, McCants had to provide weekly urine samples. On March12, A’TIP staffer Rebecca Repaal notified the court that McCants had twice tested positive for THC, the active ingredient in marijuana. She also noted that McCants had failed to come to the ATIP office when summoned.

That weekend, Manalo visited McCants at his home. According to Deborah McCants, the doctor remarked to Abe, in reference to Rapaal and her ATIP colleagues, "These people are sicker than you are."

The following Monday, March 15, Deborah and Abe McCants went to the ATIP office in the City County Building. Deborah says Abe was slumped over Repani’s desk in pain as she accused him of noncompliance and fired questions at him. "Did she think he was faking all that pain?" exclaims Deborah.

Repaal declines to comment, but ATIP head Alesch says the problem wasn’t just that McCants tested positive for THC, but that he lied about It: "Abe tried to come up with every other reason for why this drug was in his system, other than the truth, which is that he was using marijuana."

That said, Alesch confirms that McCants would still have gotten in trouble had he been honest "We just can’t have folks testing positive for controlled substances when they’re not prescribed."

According to Alesch, ATIP merely reported that McCants was not in compliance and left it up to the DA’s office to decide what should be done about It.

At the March 18 hearing, Assistant District Attorney Lyn Opelt recommended that McCants "be revoked from that program and placed back in the jail." Alesch, asked for his two cents, told Judge Bartell: "We have program rules and we have to enforce those rules no matter what the situation."

Opelt did not return phone calls. Neither did her boss, District Attorney Diane Nicks, who on the campaign trail last fall rejected charges that her office picks on pot smokers. "We make a distinction between the big dealer and the small user," Nicks told Isthmus."Our resources are precious, and we want to get at more serious crimes."

St. Pierre of NORML believes the DA’s office in this case "misused taxpayer dollars and wasted the criminal justice system’s valuable time and resources" to compound the pain and suffering of a dying man.

While the DA’s office isn’t talking, Alesch says the key decisions were made without foreknowledge that McCants would die with-in 24 hours of the March 18 hearIng: "We were as surprised as anyone."

But Deborah McCants says her husband was clearly at death’s door during this hearing, unable to lift his head from the table and at one point weeping. Loeb, McCants’ attorney, presented a note from Dr. Manalo attesting to the dire state of McCants’ health. Attached was a wire service article about a federal panel’s finding, released the day before, that marijuana appears to have legitimate medical uses, including pain relief for terminally ill patients.

"From a medical perspective, the biggest problem in Abe’s life is that he is dying of cancer," argued Loeb, asking the court not for forgiveness but fairness. He conceded that McCants had "a bad attitude" toward the authorities, another infraction cited by ATIP, but explained that his behavior was affected by the large doses of narcotic painkillers he was taking. Dr. Manalo’s letter made the same point.

(Marijuananews note: This is perhaps the ultimate irony. They want to jail him for behavior resulting from the use of legal drugs and for using marijuana which was not the cause of his behavior.)

Judge Bartell ordered A’TIP to continue the electronic monitoring, rebuffing Alesch’s attempts to get her to weigh in on drug testing: "That aspect of your program is not of concern to me."

Loeb praises Bartell ruling. "I think the Judge handled this with intelligence and compassion," he says. "I didn’t see the same mercy from the’ Alternatives to Incarceration Program or the DA’s office."

Note: The following was not published in Isthmus, but was found on their website. It is the transcript of the court hearing on which the article mentioned below is based, which is at: http://www.mapinc.org/drugnews/v99.n402.a04.html

Also from the Isthmus website,

WHEN IS THERE MERCY?

The transcript of a hearing in which the Dane County DA’s office sought to jail a terminally ill man for smoking pot.

The following is a transcript of a hearing held March 18, 1999, before Dane County Circuit Court Judge Angela Bartell, as well as a chronology of events provided by Deborah McCants, the wife of the man being prosecuted, who died the next day. An article on this case appears in the April 9 issue of Isthmus.

STATE OF WISCONSIN

CIRCUIT COURT Branch 10

DANE COUNTY

STATE OF WISCONSIN,

Plaintiff,

VS.

ABE MCCANTS,

Defendant.

Case Nos. 97 CM 003836

98 CF 001966

98 CM 004052

PROCEEDINGS: EMP Review Hearing

Date --March 18, 1999

BEFORE: The Honorable ANGELA BARTELL, Presiding Circuit Court Judge

APPEARANCES:

LYN OPELT, Assistant District Attorney, appearing on behalf of the State of Wisconsin;

MICHAEL ALESCH & REBECCA REPAAL appearing on behalf of the Alternatives to Incarceration Program;

JORDAN C. LOEB, Attorney at Law, appearing on behalf of the defendant, and the defendant in person.

THE COURT: This is State of Wisconsin versus Abe McCants, 98 CF 1966, 97 CM 3836, 98 CM 4052.

Today’s appearances, please?

MS. OPELT: The State appears by Assistant District Attorney Lyn Opelt. Also present from Alternatives to Incarceration are Rebecca Repaal and Mike Alesch.

MR. LOEB: Abe McCants appears in person represented by Jordan Loeb.

THE COURT: I’m just reviewing Ms. Repaal’s letter from March 12. Give me just a moment. All right. Ms. Opelt, have you reviewed that letter?

MS. OPELT: Yes, I have, and I’ve spoken with all the parties involved.

THE COURT: Do you have a suggestion for the Court?

MS. OPELT: This is one of those very difficult and impossible situations, but given Mr. McCants’ behavior while he has been in the Alternatives to Incarceration Program, I am recommending that he be revoked from that program and placed back in the jail.

I know that Mr. McCants has, is not well. He is on morphine I believe every three hours, but I’m very concerned about the fact that he has had these positive U.A.s through the program and he has not been forthright or honest with either Mr. Alesch or Ms. Repaal about why he is having those positive U.A.s; plus just his behavior in general has been such that he feels for whatever reason he doesn’ t have to follow the rules of the program. I know that he is—

THE COURT: His convictions are for what? Would you remind me what the charges are?

MS. OPELT: You know, I don’t have the CF case. That’s Ken Farmer’s case, but I assume it is some drug conviction.

MR. LOEB: No. It is an obstructing. It was amended to obstructing.

MR. MCCANTS: I don’t have a drug conviction on my case at all.

MR. LOEB : Okay.

MR. MCCANTS: I don’t.

MR. LOEB: I know.

THE COURT: There appears to be two resistings or obstructings, and there appears to be one disorderly conduct. MS. OPELT: That is correct. And I believe that his ending date for the jail sentence according to Ms. Repaal would be June 26^th. He started his jail sentence on January 16^th, and then it was modified as you can see from the letter on February 19^th.

THE COURT: Mr. Loeb, are you able to tell me whether it is resisting or obstructing?

MR. LOEB: It’s resisting—

THE COURT: It’s resisting?

MR. LOEB: -- from my understanding.

THE COURT: Each of them?

MR. LOEB: Yes.

THE COURT: Mr. Alesch or Ms. Repaal, is there any statement that either of you wishes to make?

MR. ALESCH: Just to agree with Ms. Opelt. It has been very difficult. And I understand Mr. McCants’ situation, but we have program rules, and we have to enforce those rules no matter what the situation. I mean we know that’s what the Court expects when they put someone in our program.

It’s very disconcerting that Mr. McCants has not been honest with us. He comes up with various reasons why he tests positive. He not only tests positive, but he puts them off the scale over at the Huber Center for marijuana, and he gives us various reasons. We believe that he is using marijuana. He just is not straight forward about that, so he has been very difficult to deal with.

THE COURT: Thank you. Mr. Loeb?

MR. LOEB: Thank you. I’ve been speaking with Mr. McCants’ doctor.

THE COURT: Who is his doctor?

MR. LOEB: Dr. Felipe Manalo. On short notice, I wasn’t able to get Dr. Manalo to come here and be able to speak to the issues, but I don’t think it takes a whole lot of imagination to reiterate and understand his point. From a medical perspective, the biggest problem in Abe’s life is that he is dying of cancer. The record shows and the letters that have been forwarded to the Court confirm that. The December letter was suggesting that they predicted six months to live. That is obviously not a 100 percent forecast. It is a doctor’s best guess given his experience with cancer. The doctor’s response when I talked about this is why are people concerned with the marijuana. Why are people concerned with what seemed to him to be trivial rules? Of course I work in a criminal justice system, and I’m able to explain to the doctor that’s exactly what the criminal justice system is suppose to be concerned with. So we have a clash right there in terms of two legitimate sets of priorities.

The medical priority is to try to keep Mr. McCants comfortable while he is ill. He is more than ill. He is dying. I’ve known him for two months. In looking at him. I’m watching him die. I don’t know him personally, but it is obvious to me that he is deteriorating in front of us. Unfortunately I’ve had a lot of experience to know that people get real optimistic. In this case if only we could get him out of jail and get him home, things would be better. That was probably naivete in not addressing the limitations of the Alternatives to Incarceration Program when we asked for it a month ago. I probably should have thought that program might be too rigid obviously with a criminal history, and putting him on this program doesn’t change the fact that he has a history with the DA’s office. Part of the reason that he has a" history with the DA’s office is a bad attitude. That is not going to change overnight, and I’m not asking the Court to forgive him.

Alternatives to Incarceration suggests that if he had been honest up-front in using marijuana that might make a difference. The fact of the matter is it doesn’t make a difference. Despite what’s out there in the medical world about maybe marijuana could be useful for cancer patients, it is not legal in this state. For him telling them that and him coming to this Court and saying I’m using marijuana for relief doesn’t help our situation because it is not legal. The fact of the matter is that the medicines he is on are Morphine, Dilaudid, every two hours two milligrams, the maximum doses. I would suggest that that is part of his bad attitude. He is on a heavy narcotic, a narcotic stupor 24 hours a day just to relief the pain. He takes a liver cleaner, and then he takes two other medications just to basically help him die comfortably. I think it is easy to say he is breaking the rules, he should go back to jail, but I . think that simplifies the problem a little too much. The jail isn’t going to be able to administer to his pain at all. I’ve had a lot of clients in jail, and they complain that they can’t get an aspirin within 12 hours, let alone Morphine every three hours.

And in terms of suggestions, I would point out to the positive of Abe’s behavior while he has been in Alternatives to Incarceration. He has been on electronic monitoring, and the information that I have is that he hasn’t violated that. He is not out roaming the streets. He is not out looking to make trouble in Madison at large.

He hasn’t been compliant with the program. Maybe his attitude is part of the problem, and maybe the amount of medication he is on is hindering any attempts he might be making to have a good attitude to be compliant. I guess I would ask the Court—I can’t ask you just to forgive him and say time served, you know, that cancer makes up for any wrongs that you have done. Reading between the lines and hearing what Alternatives to Incarceration is saying is that they have their rules. Maybe with the Court’s permission Alternatives to Incarceration can supervise him electronically. As long as he stays in his house, he is not making trouble on the streets, the city of Madison, and the community of Dane County won’t have to worry about him. I think it is unfair to the jail and I think it is even more unfair to Abe McCants for him to go to the jail at this time. They are just not going to be able to serve him.

THE COURT: Thank you. Ms. Opelt, any response?

MS. OPELT: No, Your Honor. I don’t think there is an easy answer so I have no other response.

THE COURT: Mr. Alesch or Ms. Repaal, do you want to respond to Mr. Loeb’s suggestion, basically that you continue to supervise on a modified basis? I take it that is what he is suggesting.

MR. ALESCH: I guess I don’t have a problem with that except we weren’t going to just do that arbitrarily on our own, change a program rule. We would like the Court’s permission to do that.

THE COURT: What does the electronic monitoring data show about his whereabouts?

MR. ALESCH: In talking with Ms. Repaal, apparently that has all been okay.

MS. REPAAL: He has done well.

MR. ALESCH: He has done well other than this thing with the urine tests.

THE COURT: I’m concerned about the failure to report. In the letter of Ms. Repaal, it says—

MR. ALESCH: Oh, that was I think for a U.A., wasn’t it?

MS. REPAAL: Yes.

MR. ALESCH: That was for a drug test.

MS. OPELT: Your Honor, I believe it was a refusal to report more than a failure, or failing to appear, and I would guess that that’s because he knew that his U.A. was going to be positive.

MR. MCCANTS: Uhm, --

MR. LOEB: Abe, I’ll explain.

MR. MCCANTS: Wait. Wait. Wait. Wait. The reason why I didn’t report was my feet had swollen up. As you can see, they are swollen still. My feet are swollen up. I called my doctor. I says, hey. He told me, man, were you just down here yesterday? I said yeah I was just down here yesterday. He says well, okay. I’m going to call down to the jail, I mean call down to Ms. Repaal—

THE COURT: Repaal?

MR. MCCANTS: -- and Mr. what-you-call-it and let them know. I don’t know if he did that or not. I don’t know. Did he do that? He did do that?

MS. REPAAL: Yes.

MR. MCCANTS: That’s as much compliance as I can do on that. He told me just go on and lay back down. You won’t have to do that.

THE COURT: Anything further, Mr. Loeb?

MR. LOEB: I just got handed a fax. Apparently the doctor is now responding explaining some of the situation.

THE COURT: Do you want to present that to the Court? First you need to show it to the other side.

MR. LOEB: I’m not sure it does anything other than putting in writing what I already suggested to the Court. I don’t think the State or the Alternatives To Incarceration Program is questioning the accuracy of what I was saying. I think Dr. Manalo is giving Abe McCants one set of priorities, take care of yourself. The fact of the matter is that that doctor doesn’t have the authority to relieve or release Abe from any of his obligations under the program. I don’t want to put words in Mr. Alesch’s mouth, but what I hear him saying is we are not going to change the rules, but if ‘the Court gives us permission to just supervise him electronically, they can work with that. That’s my suggestion.

THE COURT: I’m reviewing a fax from Felipe B. Manalo. All right. Dr. Manalo corroborates the physical status of Mr. McCants as being, having a low blood pressure whenever he stands up, that he was on March 13^th markedly jaunticed, weak, and dizzy. He indicates that it is not impossible for him to show up for this hearing, and he is present in court, but indicates that it would be very difficult for him. The doctor hasn’t seen him since March 13^th, and, of course, today is the 18^th.

Mr. McCants’ left leg is markedly swollen. He showed it to the Court.

My major concern is that Mr. McCants be where he is ordered to be and that he report when he is ordered to report assuming he is medically able to report. I think some modifications of the obligation to report would be in order given his medical condition provided that the electronic monitoring report show he is where he is suppose to be, and so I would ask the Electronic Monitoring Program to continue to supervise consistent with those principles.

Is that clear enough, Mr. Alesch?

MR. ALESCH: And suspend our drug testing also?

THE COURT: I’m going to leave that in your discretion as to whether it is necessary or appropriate.

MR. ALESCH: Well, my feeling is it is going to continue to test positive. I believe Mr. McCants will continue to use marijuana while he is on our program. I guess I’m just looking for permission to ignore that given his condition. I mean it is obvious that every time we give him one it is going to test positive.

THE COURT: That is not—

MR. ALESCH: In all honesty, about—

THE COURT: Excuse me. That aspect of your program is not of concern to me. My major concern is that he is completely within the boundaries of where we expect him to be, and if he is not, then he needs to be in the jail, and the jail will have to make a judgment whether they can deal with this medical condition or not. Okay. Thank you.

MR. LOEB: Thank you. Judge.