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 38yearold 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 fiveyear 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
paintball 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 5yearold 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 uncuff 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 5yearold'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 thiswe 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 12year 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
5yearold, 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
25squarefoot 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 ziplock 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 45year maximum, and it is "possible"that Foster could be paroled on the
70year 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 20year
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. Ninetythree 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.