The OK corral
12/26/2000 12:00:00 AM - Jacob Sullum
Oklahoma Gov. Frank Keating was recently in the spotlight as a leading contender for U.S. attorney general. Now that George W. Bush has picked defeated Missouri Sen. John Ashcroft instead, Keating won't be heading the Department of Justice.
As a result, he'll have more time to reflect on what passes for justice in Oklahoma. In particular, he should be thinking about Will Foster.
Foster, a 42-year-old father of three, was arrested in 1995 for growing marijuana in the basement of his Tulsa home. He said he needed the drug to relieve chronic pain caused by rheumatoid arthritis.
In California, or one of the eight other states that allow the medical use of marijuana, a defendant like Foster can get off. In Oklahoma, he got 93 years.
On Dec. 28, 1995, acting on a tip that Foster was selling methamphetamine, police broke into his house and tore it apart in front of his terrified 5-year-old daughter, looking for evidence of the crime specified in the warrant. They didn't find any, although they looked everywhere, even inside the little girl's teddy bear.
But they did find Foster's marijuana garden, which was concealed behind a locked steel door in an old bomb shelter. There were about 70 plants.
During Foster's trial, the prosecution claimed the plants were equivalent to 2,652 joints. A marijuana cultivation expert who testified for the defense said the yield would be more like 12.5 ounces, or about 600 joints -- not an outlandish amount for someone who smoked marijuana daily to control pain.
Foster, who made about $100,000 a year as a computer programmer, insisted that he had never sold marijuana, and no one testified that he had. But in January 1997, the jury convicted him of possession with intent to distribute, along with cultivation, the aggravating factor of possession "in the presence of a minor under age 11," and failure to obtain marijuana tax stamps (a legal fiction used to increase punishment).
The sentences recommended by the jury added up to 93 years, and Judge Bill Beasley said they should be served consecutively. He noted that Foster had rejected plea bargains promising sentences totaling 10 to 12 years.
Tulsa County Assistant District Attorney Brian Crain told Reason magazine that he asked the jury to recommend "20, 200, 2,000, whatever number of years they wanted to give." He said the sentence was appropriate "because it falls within the statute, and I think that the statute is appropriate."
In August 1998, a state appeals court disagreed. Saying Foster's sentence "shocks our conscience," the court reduced it to 20 years, making him eligible for parole.
Days later, the Oklahoma Pardon and Parole Board voted unanimously to release Foster. Supporters, including three prison supervisors who said they rarely intervene on behalf of inmates, urged Gov. Keating to sign the parole order.
In his own letter to Keating, Foster noted that he had served five years in the Army, put himself through college, and started a successful computer business. "Most important is that I have never committed a crime against any person or thing in my entire adult or childhood life," he wrote. "The only victim in the crime that I am serving time for is my family. They have to live every day without ... the guidance, support and income that I have always provided."
In January 1999, Keating rejected the parole board's recommendation, something a spokesman said happens only about 25 percent of the time. The spokesman said the decision was due to "a combination of factors," including objections from the prosecutor.
A letter from Keating's office to a Foster supporter implied that one reason for keeping him in prison was that he had "made public statements concerning ... his plans to resist anti-drug laws if he is released." The letter apparently was referring to interviews in which Foster had criticized the war on drugs -- which suggests that he is being punished for his political views.
In August 1999, the parole board again approved Foster's release, and Keating again said no. A few months ago, the board voted a third time to parole Foster, a decision that took effect on Dec. 21. Now that it looks like Keating will be staying in Oklahoma City, he'll have another chance to display his compassion, instinct for fairness, and sense of proportion.
As for Will Foster, he's had enough of Oklahoma. He has asked to serve his parole in California.