Will Foster became a poster boy for drug law reform more than a decade ago, when he was sentenced by an Oklahoma court to a nightmarish 93 years in prison for growing marijuana plants to treat his rheumatoid arthritis. National publicity -- indirectly gained for Foster by StoptheDrugWar.org, publisher of this newsletter -- helped get his sentence reduced to 20 years, and in 2001, he was paroled to California. Now he is back in prison in Oklahoma, charged with violating the terms of his parole, and is likely to remain there until either 2011 or 2015 -- depending on whose interpretation of the state's arcane sentencing laws is followed.
Foster did well in California, sponsored in his parole by "Guru of Ganja" Ed Rosenthal. After three years on parole there, California parole officials deemed him rehabilitated and ended his parole. That didn't sit well with Oklahoma parole officials, who argued that under the interstate compact governing parole to other states, it was the state which had sentenced the parolee that should determine when he had discharged his sentence.
"Based on his discharge date, we requested that Foster be put back under supervision," said Milt Gilliam, administrator of Parole and Interstate Services for the Oklahoma Department of Corrections. "California indicated they were finished, but we indicated to him that no, we dete\rmine the length of the sentence, as required by our state law."
Oklahoma issued a parole violation warrant for Foster, and, after an encounter with police in California -- he was cited for driving with an Oklahoma license -- he was jailed pending extradition back to Oklahoma. But Foster filed a writ of habeas corpus seeking his freedom in California and won.
"That warrant was thrown out," Gilliam recalled. "We didn't agree with the judge's decision, and our best option was still to get him under supervision, but we were not successful."
Oklahoma parole officials then notified Foster that they had changed his discharge date from 2011 to 2015 and demanded that he sign paperwork to that effect. He refused, and Oklahoma issued another parole violation warrant.
"We sent an explanation to Mr. Foster about the difference in discharge dates," said Gilliam, explaining that the later date was based on the fact that he had earned credits at a different rate than originally stated. But a moment later, Gilliam argued that 2015 had always been his discharge date. "My contention is that the 2011 date and the 2015 date were given to him from the beginning," he said.
"That is complete crap," retorted Foster's partner and primary supporter, Susie Mueller. "All of the original documents we have only mention 2011. This 2015 stuff only came up after they lost that habeas case. They said they made a mistake and they were taking away his good time credit, then they added the additional time. But every document we have says his discharge date is 2011. They went back in and added two fake charges, gave him 18 years, and set his discharge date for 2015, but that isn't in the original documents."
Foster's Oklahoma Department of Corrections offender page suggests that something funny is going on. It shows the four charges Foster was convicted of in 1997 with the latest discharge date of 2011. But a recent addition to the page lists two new counts of cultivation of a controlled substance with a discharge date of 2015. Oddly, though, unlike the four original counts, which show a conviction date of February 27, 1997, the two new counts show no conviction date.
"Before the Department of Corrections can treat a conviction as valid, they have to have a certified copy of the judgment of sentence," said Foster's Oklahoma attorney, Mike Arnett. Arnett declined to comment on the specifics of Foster's case until he could talk to Foster and get his approval.
Oklahoma got another crack at Foster last year, when he and Mueller were arrested by California police after an informant with a grudge against the pair told police Foster was engaged in illegal marijuana cultivation. But Foster was a registered medical marijuana patient, and his grow was within state and local guidelines. After letting Foster sit in the Sonoma County Jail for more than a year, local prosecutors dropped all charges against him and Mueller.
But Foster remained behind bars under the new Oklahoma parole violation warrant. A new writ of habeas corpus was unsuccessful, and late last month, Oklahoma officials arrived at the jail, shackled Foster in a van, and drove him back to Oklahoma. After sitting in the Tulsa County Jail for a week, Foster faced an preliminary hearing to revoke his parole on Tuesday and is now housed in the Oklahoma state prison system.
He will get an administrative hearing sometime in the next one to three months. If administrators revoke his parole, his case then goes to the governor's office. Under Oklahoma law, the governor ultimately decides whether or not to revoke parole.
Foster's supporters are working up a campaign to ask the governor and the parole board to either pardon Foster or commute his sentence. For more information on the campaign, go here.
Lynda Forrester, the parole officer handling Foster's case, declined to speak to the Chronicle. Instead, she referred reporters to the department's public information office, whose Kathy King did attempt to explain what was going on.
"The basis of Foster's parole revocation is that he violated city, state, or federal law, the use or possession of illicit substances, failure to report, and failure to follow the parole officer's directives," she said, reading from documents. "Police in California confiscated 184 marijuana plants, MDMA, and methamphetamine."
Although Foster and Mueller were never charged with possession of MDMA or meth and although the marijuana cultivation charges were dropped because Foster was operating within California's medical marijuana law, parole officials can still use that against him, King said. "That will be presented in revocation hearings," she said.
"The MDMA and meth stuff is a flat-out lie," said Mueller, suggesting strongly that any drugs found in the home -- if any really were -- were "throw-down" drugs placed there by the raiding officers. "We have never seen any MDMA or meth," she said. "We volunteered to take immediate drug tests, but they just laughed at us. There were arrest reports written by three different officers, and each report had the supposed drugs recovered from a different location. They do this to try to discredit the medical marijuana movement, to try to portray us as drug dealers."
When confronted by the discrepancy in release dates, King was unable to explain it. "The official record shows 2015," she said. "I can't answer questions about the stuff on the web site. I don't know where that information comes from."
Unlike Tuesday's preliminary parole revocation hearing, Foster and his attorney will have the opportunity to challenge the evidence and cross examine witnesses at his next hearing. They intend to make the most of it.
In the meantime, Foster remains behind bars, yet another victim of a justice system seemingly operating on petty vengeance and mindless reflex.