March 29, 1998

NINETY-THREE YEARS FOR POT
By John Young

Is this man a threat to society? Judge for yourself

MANSFIELD, Texas—

The hands may tell the story in the case against Will Foster, who just completed the first of an assigned 93 years in prison.

Or maybe the tale is told by a bloated left pinky. You couldn’t call it a little finger. It’s huge. It has the swerve of a highway off-ramp.

He says he smoked marijuana because of arthritis pain in a bum ankle and his left hand. For this offense, the 39-year-old is paying an incomprehensible price.

He’s at the Mansfield Law Enforcement Center, which contracts to house Oklahoma prisoners.

In 1996 Foster was convicted of five drug counts in Tulsa, all revolving around the plants he was growing in an underground backyard shelter.

Foster says he had 38 marijuana plants. He said he was growing them to be harvested in rotation—each harvest to yield about 12 ounces.

Prosecuters asserted that he had between 50 and 70 plants and that he meant to distribute. A Tulsa jury sentenced him to a little over a year per plant, 70 years for cultivation. It tacked on 20 years for possession in the presence of minors, his children. Foster asserts they never knew.

The sentence "certainly falls within the realm of punishment within Oklahoma law and I think it’s a fair verdict," said Tulsa County assistant District Attorney Brian Crain.

For a first-time offender, owner of a successful computer consulting business, honorably discharged from the Army, it would have seemed a plea-bargain was in order for Foster. The only problem was that police had arrested Foster’s wife, too, charging her with complicity.

She was offered probation if she consented to testify against her husband. Foster assumed the jury would be lenient on him, and was determined nontheless to challenge his arrest in court, alleging illegal search. He told his wife to play the hand the DA had dealt.

"Someone had to be home to take care of the children," he said.

The Fosters tried to enter his medical condition into the trial but the judge blocked it as irrelevant.

The case recently was remanded back to the trial court based on questions about an unsigned affidavit filed by police. Also, the status of an anonymous informant—police say he’s now dead—has been questioned.

Legal, illegal

Meanwhile as Will Foster’s nightmare was being projected on cellblock walls, voters in California and Arizona legalized medicinal marijuana use.

Here’s the kicker about the crime to which Foster admits: He says he used the marijuana—smoked or boiled it and used it as a compress on his ankle - -- because it caused less impairment, made him less groggy, less irritable, than the codeine-based medicine he’d been prescribed for pain.

He said relief from smoking marijuana was more measured and less impairing.

Now imagine a man in prison for the rest of his life because of it.

What are Foster’s parole chances? Not good. His attorney, Stuart Southerland, said the most hopeful scenario, though very remote, would be to get out in 10 years. By then he’ll have served time that exceeds what some rapists and armed assailants do.

Meanwhile, some of Foster’s joints get bulbous when the humidity changes, pressing white against his skin. The prison has Advil for it. His wife worries that one day he may lose a leg or foot.