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.
By Adam J. Smith
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
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
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
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
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
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
"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 is assistant director of the Drug Reform Coordination
Network in Washington.