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

Reason, May, 1997 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 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.