For years, William Joseph Foster says he’s suffered from back pain, and the best remedy for easing his ache is marijuana. But the 51-year-old’s cultivation and usage of the drug led him through a 15-year journey of jail and court battles that are knotting up two states over his freedom.
Last week, the journey landed in an Oklahoma parole revocation hearing which at times was as bizarre as Foster’s case itself. Now the governor will have the final word on where the case ends.
The short version of the story goes something like this:
William Foster was arrested and charged in 1995 for growing marijuana at his Tulsa home. He was convicted and sentenced to 93 years in prison, considered an extreme punishment by marijuana advocates. A year after his conviction, a state appeals court reduced his sentence to 20 years. He was out on parole by 2001 and moved to California, where he would be supervised. In 2007, California ended its supervision, prompting Oklahoma officials to revise Foster’s supervision. A disagreement emerged between Foster and Oklahoma over the length of the parole, causing the state to issue a warrant, bringing Foster back to Oklahoma in 2008.
“It is very, very unusual,” said Milt Gilliam, administrator of parole and interstate services for the Oklahoma Department of Corrections.
A LONG, STRANGE TRIP
It all started in December of 1995 when Tulsa police raided Foster’s home and found dozens of marijuana plants and baggies. Foster claimed he grew the illegal drug for medical purposes, and his defense attorney called on Ed Rosenthal, an expert on marijuana cultivation and columnist of the pro-cannabis magazine High Times, to testify at his 1997 trial. Rosenthal told a jury that, while the amount of plants Foster was growing seemed like a lot, only a small portion could be used for smoking and not for distribution.
The case generated national attention, spurred by Rosenthal’s testimony, but what happened at the end of the trial took the case to the front pages.
Foster was found guilty on charges of cultivating and possessing marijuana with intent to distribute and having marijuana in the presence of a child as well as failing to obtain a drug tax stamp. For cultivating, Foster received a 70-year sentence, two years for intent to distribute, 20 years for the presence of a child and one year for the tax stamp charge.
The Tulsa World reported at the time that the judge in the case, Bill Beasley, had a standard practice of running the sentences consecutively, as opposed to many judges who run sentences concurrently, and Foster was given a total of 93 years in prison. The judge footnoted in his remarks that Foster could have received a lighter sentence if he had taken a plea deal offered by prosecutors of a 10- to 12-year prison sentence. Because he received such a lengthy sentence, prosecutors dropped drug charges against Foster from a different case.
But a year later, after Foster appealed his conviction and sentence to the Oklahoma Court of Criminal Appeals, the court affirmed the conviction but found the sentence excessive and “disproportionate” to the facts of the case. The appeals court slashed the sentence from 93 years to 20.
“I think the discrepancy (currently between Foster and the state) is due to the fact that his original sentence was modified by the court of criminal appeals,” said Oklahoma City attorney Mike Arnett, currently representing Foster.
A few years after the new sentence, Foster was paroled by the state and allowed to move to California under the Interstate Compact Agreement. The compact involves one state allowing a parolee to relocate to another as long as the new state agrees to supervise its new resident.
But in 2007, Foster’s California parole officer believed the parole period had ended and released Foster from supervision ” a move which scurried Oklahoma officials into action.
“The interstate compact rules basically state that the sending state determines how long the person is to be supervised,” Gilliam said. “They notified us they were closing the case. That’s why we attempted to get him back under supervision.
“When we talked to the state of California, they agreed (the case) shouldn’t have been closed.”
A year later, Foster’s home was raided by the FBI and California officers, yielding hundreds of marijuana plants. Foster was arrested, which led to his eventual return to Oklahoma.
TRIAL BY PHONE
Another year passed when Foster found himself sitting in a conference room on North Classen Boulevard fighting for his freedom. While the original case is rooted in Tulsa County, Oklahoma County had the only jail with space to house Foster.
Last week, the state began proceedings for a parole revocation hearing before an administrative law judge. The hearing operated as if it were held in a courtroom with a judge presiding. The state presented its case, submitting evidence and calling witnesses with Foster sitting next to his attorney doing the same and cross-examining. The unorthodox proceeding resembled a company board meeting more than a court trial as witnesses had to testify over the telephone. The room was not wired for long-distance phone calls, and witnesses gave testimony through the speaker of Gilliam’s cell phone.
The main point of contention is whether Foster’s parole closing date comes in 2011 or 2015. Foster contends it’s the first and signed an agreement with the state to abide by the supervision rules while in California. But the state claims it sent a second agreement proposal to Foster with the 2015 date. The second letter was mailed to Foster while he was still in California. Foster testified he took the letter to his California attorney who advised him not to sign it.
“He takes it to his attorney and says, ‘What about this,’ and his attorney says, ‘Don’t sign it, it will extend your parole by four years,'” Arnett said. “He basically hires counsel and acts on the advice of counsel.”
The argument centers on whether Foster is serving a sentence for one or two counts. Foster believes when the appeals court changed his sentence, it combined the counts. The state sees it differently, which is why the second letter was sent.
The state is asking that Foster’s parole be revoked on the grounds he violated the provisions of his parole and failed to sign a letter of agreement. Foster argues he did not violate his parole and did sign a letter.
The parole violation allegation stems from the raid on his California house. Authorities found Foster was growing nearly 300 marijuana plants in his garage. They also allege methamphetamine and Ecstasy pills were found in the house.
But Foster claims the marijuana cultivation is legal under the California Medical Marijuana Program and denies having meth and Ecstasy in his house. Arnett said federal prosecutors decided not to file any charges after Foster requested the confiscated drugs be sent to a lab for testing.
Under Oklahoma law, the governor decides whether convicted felons may be released from parole or have their parole revoked and sent back to prison. The hearing’s administrative judge will make a recommendation to the governor.
The governor actually has several options to choose besides revoking or not, including leaving Foster on parole but modifying the parole discharge date.
“Worst case is they revoke his parole,” Arnett said. “Best case is they don’t, and he goes back to California.”
Leaving the hearing in chains and shackles, Foster said he could have signed the second letter and would be back in California living a freer life. But he said he has no regrets about his decision because for him it’s about the principle of the matter.
The case comes amid the backdrop of California’s laws, which allow for the cultivation of marijuana, and the recent decision by the federal government to not pursue criminal cases of medical marijuana where states have legalized it. Advocates for the drug argue more states should adopt the California model, which would help with prison overcrowding and save taxpayer dollars from prosecuting marijuana users looking to relieve pain.
But Gilliam said never once did it enter into his mind when pursuing to revoke Foster’s parole that his was a case of medical marijuana, nor is it his intent to send Foster back to prison.
“The purpose is not to punish Mr. Foster,” Gilliam said. “Under the interstate compact agreement, I am bound that if someone is in their state in violation of that compact, I am bound to get them out of the state one way or another. That is why we attempted to get him under supervision there or return him to Oklahoma.”
There is no timetable on when the judge will make a recommendation or when the governor will make a final decision on revoking Foster’s parole. “Scott Cooper