WHEN IS THERE MERCY?

Dane County Authorities Tried To Incarcerate Terminally Ill Man For Smoking Pot.

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, Abu's wife
of 18 years; the couple had seven children. He, 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 ATIP rules, McCants had to provide weekly urine samples. On March 12,
ATIP 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.

McCants could not make the trip cause his feet were too swollen to put on
shoes. Dr. Manalo confirms this, saying he told McCants to stay home ENFELD
and called Repaal to explain. 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 within 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. At-tached 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.

Judge Bartell ordered ATIP 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. (For the hearing transcript, check Document
Feed at www.thedailypage.com.) "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."

But Alesch insists the case of Abe McCants was handled as it had to be by
the rules. "If we had to do it all over again," he says, "we'd do the same
thing." No doubt.