Pot of Trouble

Grow marijuana for medical use in California, and you can get off. Do it in Oklahoma, and you can get 93 years.

Will Foster, a 38-year-old father of three who lives in Tulsa, Oklahoma, suffers from rheumatoid arthritis in his back and feet. Over the years, he has tried various drugs for his condition. They were not very effective, and most contained codeine, which left him groggy and irritable, making it impossible to work or enjoy time with his children. Marijuana, by contrast, relieved his pain without disrupting his life. To minimize the chance of arrest, Foster decided to grow his own supply, concealing a small garden in an old bomb shelter in his basement. The shelter was behind a steel door to which only Foster had the key. None of his children knew about the garden or saw the marijuana. It was important to him that his choice of treatment cause no confusion for his kids, that their childhoods be as normal as possible.

The police had different plans. Now Foster may face the equivalent of life in prison for growing and using a forbidden medicine. He does not seem like the sort of man who belongs behind bars. A five-year Army veteran who served as an M.P., Foster has operated his own software business for four years. He has never had so much as a fistfight; his most violent tendencies are bird hunting and, when he feels up to it, weekend war games with paint-ball guns. In short, he is a decent, productive citizen who threatens no one except drug warriors who cannot abide the notion that marijuana could be good for anybody. Will Foster is someone to keep in mind when drug czar Barry McCaffrey insists that patients and doctors who use marijuana as a medicine should be treated like criminals.

On December 28, 1995, the Tulsa Police Department's Special Investigative Division received a tip from a "confidential informant" that Foster was selling methamphetamine from his home. That information was enough to obtain a warrant, specifying methamphetamine as the object of the search, and late that afternoon there was a knock on the Fosters' door. Will's wife, Meg, disengaged the lock, only to have the door "explode inward" as the police knocked it in with a battering ram, knocking her to the floor, nearly on top of their 5-year-old daughter. "There were guns in my face," she recalls. "Men in street clothes demanding to know who I was. My daughter was terrified and screaming frantically the entire time: 'Don't hurt my mommy!' It was at least five minutes before I understood that these were police officers."

The police held Will, Meg, their daughter, and a visiting friend, a diabetic recovering from surgery, for four hours while they tore the house apart. During the search, Meg says, one officer threatened to "kick my ass to the north side of town if I did not tell him what he wanted to hear." The same officer, she says, later yanked Will's cuffed hands straight up behind his back and threatened to break them if Will did not tell him where the "meth" was. Meg says she eventually convinced the officers to un-cuff their convalescing friend "before they killed him." The Tulsa police declined to comment on the search or any other aspect of the case.

Despite a thorough search, which included tearing apart the 5-year-old's teddy bear, the police found no trace of methamphetamine in the Fosters' home. Nor did they find anything indicating that the drug had ever been sold there. (The total amount of cash in the home was $28.) At one point, Meg says, one of the officers sat on the couch and told the others, "I'm not participating in this–we messed up," and refused to continue helping with the search. But the police did find Will Foster's medicine: about 70 plants, many of them seedlings. The Fosters were arrested and held on bonds of $35,000 each. "I spent the night in jail," says Meg, who calls it "the worst experience of my life."

Will Foster, indignant at being arrested for his choice of medical treatment and concerned for the welfare of his family should he be sent to prison, turned down an offer of a 12-year sentence from the Tulsa County District Attorney's Office and demanded a jury trial. In an apparent attempt to pressure the Fosters into cooperating, the district attorney's office put the names of the Fosters' three children, including the 5-year-old, on the prosecution witness list. The Fosters, hoping to ensure that one of them would remain free to raise the children, decided to accept the prosecutors' offer of misdemeanor charges for Meg in return for her testimony against Will.

On October 22, 1996, still awaiting trial, Will Foster was filling the gas tank of his wife's car at a convenience store when a police car pulled up, ostensibly to cite him for failure to signal a turn. The officers called him by name and made a call from their cellular phone. They searched Foster and the car, finding nothing.

During the search, members of the same Special Investigative Division that had been involved in the December search and arrest showed up. Foster says he heard them tell the uniformed police, "No, you pulled him over in the wrong car. We wanted the truck." Foster's truck was fully paid for and thus would have been subject to forfeiture. His wife's car, on the other hand, still had a bank lien on it. As a consolation prize, the police seized the $200 that Foster was carrying at the time. Deciding that Foster "smelled of marijuana," the officers arrested him and brought him to the station, where he was held without processing for 11 hours before being released after paying a $390 fine for the traffic violation.

While Foster was in custody, the police obtained another search warrant, based on the alleged marijuana smell. They entered the Fosters' new home, to which the family had moved in September, using Will's own keys, which they had confiscated from him as "proof of residency." This time the warrant listed marijuana as the object of the search, and the police claim to have found some. (Meg Foster says, "I know for a fact that there was no marijuana in my house. Lord knows that Will had been living with his pain since the arrest.") Foster now faces additional charges stemming from this search. The district attorney's office declined to comment on the second search, citing the ongoing nature of the case.

After Will was released from custody, the Fosters returned home to find that their possessions had once again been ransacked. "My youngest daughter…kept screaming, 'They're back! They're back!' "Meg recalls. "I wouldn't let her in past the kitchen." The girl had been plagued by memories of the first search. "It will hit her at the weirdest times," Meg says. "All of a sudden she'll start crying or screaming. She's still having terrible nightmares. She just turned 6 years old, and she doesn't understand why Will can't come home."

At the trial stemming from the initial search and arrest, Foster's attorney, Stuart Southerland, having had no experience with medical marijuana, decided not to attempt a medical necessity defense, which is not explicitly recognized by Oklahoma law. The point was raised, briefly, as a mitigating factor, in arguing that Foster's offense should be treated as simple possession. But no medical experts were called, and no testimony was heard about marijuana's effectiveness as an analgesic for conditions such as Will's. Tulsa County Assistant District Attorney Brian Crain, who prosecuted Foster, says, "It wouldn't have mattered anyway, because it's illegal to use marijuana medically in Oklahoma."

The prosecution offered testimony that the plants found in Foster's home were equivalent to 2,652 "dosage units" (joints) of marijuana. Marijuana cultivation expert Ed Rosenthal, testifying for the defense, said a 25-square-foot indoor garden such as Foster's could reasonably be expected to produce about a dozen ounces of usable marijuana per crop, something like 600 joints. The state also offered zip-lock sandwich and freezer bags as evidence of drug distribution. Many of the bags found in the house had actually been filled with the paint balls that Foster shared with his buddies during their occasional weekend war games.

While simple possession of marijuana in Oklahoma can be treated as a misdemeanor, the state treats cultivation of "all species of plants from which a schedule I or II substance can be derived" as a felony. The sentence for cultivation, regardless of the number of plants, is a minimum of two years and a maximum of life imprisonment. Crain says he asked the jury to recommend "20, 200, 2,000, whatever number of years they wanted to give" to Foster. On January 16, following Judge Bill Beasley's instructions and the sentencing guidelines, the jury gave these verdicts and recommended sentences:

• Guilty of cultivation and possession of marijuana, a Schedule I substance. Recommended sentence: 70 years.
• Guilty of the aggravating factor of possession in the "presence of a minor, under age 11." Recommended sentence: 20 years (the maximum for that charge).
• Guilty of possession with intent to distribute. (Foster admitted during the trial that he had occasionally shared some of his marijuana, consumed in his home.) Recommended sentence: two years (the minimum for that charge).
• Guilty of failure to procure a state tax stamp for the (illegal) distribution. Recommended sentence: one year.

Total: 93 years.

Crain says the sentence was appropriate "because it falls within the statute, and I think that the statute is appropriate." He adds that, due to Oklahoma's severe shortage of prison space, jurors feel they must hand out extremely long sentences to ensure that significant time is served. He notes that for parole and pardon purposes each charge is considered to have a 45-year maximum, and it is "possible" that Foster could be paroled on the 70-year cultivation sentence after serving as little as eight years. But cultivation in the presence of a minor carries a 50 percent minimum, meaning that Foster would have to serve at least 10 years of that 20-year sentence. At a hearing on February 27, Judge Beasley said the two sentences will run consecutively.

Foster, who is now in prison, may have grounds for appeal. It appears that Beasley mistakenly excluded two defense witnesses, based on the prosecution's assertion that Southerland did not give adequate notice of their appearance. Southerland says he has evidence that proper notice was in fact given, in which case an appeals court might order a new trial.

"The hardest thing was coming home after the verdict and telling those beautiful kids," says Meg Foster. "They love him so….I don't think the jury ever thought about that. I wish for one day they could stand in my shoes. After all, we let out rapists, murderers, and child molesters in less time. Ninety-three years is a long time …for what is only a plant that God put on this planet." The Fosters have already used up their children's college funds for Will's defense and had to borrow money from relatives. Meg, who is trying to keep her husband's business afloat, cannot bill his clients because the police have seized their home computer, along with all of Will's business records.

"Once upon a time this was a man who believed in America and what she stood for," she says. "Right now, we are all just very disillusioned."

Adam J. Smith ([e-mail]) is assistant director of the Drug Reform Coordination Network in Washington.