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

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: