Sooner Justice

By: Angela Bacca

Three days after Christmas in 1995, Will Foster’s home was raided by the Special Investigations Division (SID) of the Tulsa Police Department on a “John Doe” search warrant. Instead of finding methamphetamine, as a confidential informant suggested they would, they found a five by five foot locked and sealed cannabis garden in a bomb shelter under the home.

Foster, a U.S. Army veteran and computer programmer, lived in a quiet upper-middle-class Tulsa neighborhood. He wasn’t dealing. He was growing his own to treat his psoriatic arthritis, a painful autoimmune disease that causes swelling and stiffness in the joints which can lead to irreparable damage. Rather than take a plea deal and serve 20 years, Foster chose to fight his case in court, a risky and expensive proposition.

Despite all Americans having the right to a trial by jury, 90 to 95 percent of criminal convictions end in a plea deal. In Oklahoma over 80 percent of defendants cannot afford their own lawyer and are assigned public defenders whose caseloads continue to swell. When a defendant chooses to take the case to jury trial they are likely to face a steeper sentence than what the plea deal offers.

What is Jury Nullification? Jury nullification means that even if a jury feels there is substantial evidence to convict a defendant of a crime they may choose to acquit if they do not believe the law is just.

Will’s choice was extra risky in Oklahoma, which has both the highest rate of incarceration in the nation and the world. It also incarcerates more women than any other American state. According to the Oklahoman, the state not only sends more people to prison per capita than other states, but keeps them there longer.

Foster’s wife at the time, who had nothing to do with the garden, would also have to serve five years in state prison if he took the plea deal. If she testified against him, she could go free. Foster was defiant, and opted to go to a jury trial, partly so she wouldn’t have to do any time.

Someone had to challenge these fucks,

Foster said,

I never said ‘guilty’ one time and I never will. If you say ‘guilty’ you give up everything.

During the trial, Foster recruited longtime High Times Magazine columnist, activist, author and cannabis cultivation expert Ed Rosenthal as a witness at his trial. When asked if the affiliation may have hurt him, Foster quickly replied that it really didn’t matter because he was already “doomed” for choosing to fight his case.

Based on the rules laid out by the prosecutor to the jury, they had no choice but to find him guilty. In January of 1997, he was sentenced to 93 years in state prison, despite being a first-time nonviolent offender. He was 38-years-old.

“Juries do what prosecutors say. If you think I am the only person that received an outrageous sentence for pot [in Oklahoma], you are grossly mistaken,” Foster says. “There are people in prison right now doing horrendous amounts of time.”

According to the Oklahoman, there are currently 55 state prisoners serving life sentences for non-violent drug offenses, many for simple possession, thanks to the state’s controversial three strikes law. Twenty four are serving life sentences without parole for drug trafficking.

Unlike so many other prisoners, Foster didn’t go quietly. Through the help of local activist and founding member of Oklahoma NORML, Norma Sapp, as well as constant support from Ed Rosenthal and his non-profit, Green Aid: The Medical Marijuana Legal Defense and Education Fund, Foster’s story gained both local and national attention and was featured on Dateline, Frontline, 20/20 and Inside Edition, among other nationally syndicated programs.

I was lucky, Ed sent me money all the time. He had fundraisers for me, raised thousands of dollars for me when I was in prison. I didn’t do without, Ed made sure of that,

Foster said.

Life Behind Bars

Almost all of Foster’s incarceration was spent in for-profit private prisons, where his psoriatic arthritis gradually worsened.

According to a report released in 2018 by the Sentencing Project, a higher rate of prisoners in Oklahoma, 26.6 percent, are serving their sentences in private prisons than all other American states except for New Mexico (43.1 percent) and Montana (38.8%). The same report shows that since the year 2000, the private prison population nationwide has grown by nearly half.

When former Governor Frank Keating took office in 1995 the nation’s prisons were swelling as a result of the War on Drugs. Under Keating, the state passed a series of “tough on crime” laws that led to many life and near-life sentences for non-violent crimes.

As Oklahoma’s prisons reached capacity, Keating, a former FBI agent and U.S. attorney, entered the state into the first of a series of contracts with private prison corporations to begin housing the surplus. As a result, since 1995 there has been a 37 percent increase in incarcerations. State contracts with the nation’s two largest private prison companies, CoreCivic (formerly Corrections Corporation of America) and Geo Group, have increased year over year, from $8 million a year in 1999 to $92.7 million in 2015.

In 1997 PBS’s Frontline published a letter from Foster where he pleaded for attention to the absurdity of his, and other Oklahoma prisoners’, lengthy sentences for non-violent drug crimes.

Now I am in prison at the expense of all you good souls because twelve people decided that smoking and/or growing marijuana is more harmful than murder. That’s what it really comes down to. My sentence is longer than the terms given to murderers, rapists and child molestors… Since I have been incarcerated, I have received no medical treatment whatsoever. I risk the loss of my left leg from the knee down. Is this the way it was meant to be? I served my country faithfully when she needed me, and now I need her, where is she? Hiding behind the skirts of ‘law and order’,

Foster wrote.

Foster didn’t lose his leg, but the joints in his fingers were irreversibly damaged during his prison time due to a lack of proper nutrition or medical care. He says all that was made available to him was Motrin, which he had to pay $2 a pill for.

While in prison Foster began working on what he calls his “unwanted education”. He spent his time pouring through books in the prison’s law library and putting together all the paperwork for his attorneys to file to go through the appeals process.

His case made it through to the Oklahoma Court of Criminal Appeals. The court voted 4 to 3 to uphold his conviction, although the three in dissent stated they preferred to throw out the case in its entirety. In 1998 the Court stated that the 93-year sentence “shocks our conscious” and unanimously voted to reduce Foster’s sentence from 93 to 20 years.

After Foster had his sentenced reduced, he fought every chance he got to be released on parole, which was twice denied by Governor Keating. In 2001, after four and a half years, he was finally granted parole and with a very specific condition; leave the state of Oklahoma.

Refuge California

When Foster left prison he moved to Oakland, California with the help of Ed Rosenthal. He obtained a medical cannabis card, legal under state law, and was able to grow and use cannabis to treat his arthritis again. The inflammation and damage he had been suffering in prison calmed.

As Rosenthal soon learned, Foster is a skilled cannabis grower. He began working as a consultant designing and setting up systems for large-scale grows, and many of his gardens have been featured in Rosenthal’s articles and best-selling books, such as the 2010 edition of the Marijuana Growers Handbook.

His daughter, Anna, had always earned a living through jobs in Northern California’s emerging cannabis industry. When I met her, she was handling all of the administrative duties for Rosenthal’s book publishing house Quick Trading Company as well as his natural pesticide line Zero Tolerance. In 2008 I took a job as Rosenthal’s editorial assistant and started volunteering for his non-profit, Green Aid, to publicize medical cannabis court cases. As the only two full-time employees at the small business, Anna and I quickly became friends.

Anna never told me about her dad and what had and was happening to him, until it started happening again. She was just 11-years old when her dad’s house was raided. Although she was at her mom’s house at the time, the event was traumatic, and one that would define the trajectory of her life too.

She had always known her dad used cannabis, and specifically to treat his condition, but she had never had any idea he was growing it. When she went to school the last day of his trial she wasn’t expecting to come home to find out he would be locked up for the rest of his life.

When I got home his wife was there, her family was there, but my dad wasn’t there. I think that is probably something… everyone was just crying,

Anna recalled in a 2013 interview I did for Ladybud Magazine about her family’s story.

He called and we talked on the phone and I just remember crying and not really understanding. I kept asking, ‘When am I going to see you again?’ He was heartbroken, I know it was hard for him. He just answered truthfully and said, ‘I don’t know what’s going to happen. I don’t know what’s happening.’

Anna says her family split up when her dad went to prison. Going into middle school, she kept her family’s story a secret from most of her friends. She only was able to see him twice during his four and a half year incarceration because he was being shuttled around different private prisons and her mom didn’t have the extra cash to make the trips.

I remember writing him letters and then not writing them for awhile and feeling guilty. I tried not to think about not having him in my life, but things would build up and I would just wish he was there,

Then things started changing, national media was paying attention to Will’s case.

“When I saw him in High Times I was more relaxed about it and not so much ashamed. I wasn’t as worried about being judged anymore.”

When she was 16-years-old, she came home from school to a note on the door that read,

“I am grabbing something to eat, be right back, love Dad.”

She didn’t know he was being released and she only had 24 hours with him before he had to leave the state and move to California. When he had gotten established, he brought her out to visit.

“I remember the first time I visited him [in California]. I was amazed to be with my dad, I was amazed with Oakland,”

San Francisco and Oakland have long been the epicenter of both the cannabis industry and activist movement in the United States.

“I just had to move [there] so I moved in with my dad. He had gotten an apartment in affluent Piedmont so that I could go to a good high school.”

At the time, California’s medical cannabis law was still relatively new and dispensaries were just starting to open. While officials and police in some cities had largely chosen not to enforce federal law, county, state and federal raids were still common on state-legal patients, gardens and businesses.

In 2002 Will was re-arrested for being 45 miles outside his allowed parole radius. He had been working as an expert witness and had left the county to take photos. He would spend six months in a county jail fighting extradition back to Oklahoma before the charges were dropped. This left Anna home alone.

“I was 16-years-old and had a whole apartment to myself with no parents.”

Activists in the community stepped up to pay her rent and bring her groceries, and ultimately she moved in with Ed Rosenthal and his wife Jane Klein to finish high school in her district. Will was in county jail when Anna graduated.

“My grandparents came [from Oklahoma] and Ed and Jane came, that’s it.”

Will’s odyssey still wasn’t over yet.

In August 2008 the Sonoma County Sheriff raided Will’s legal medical cannabis garden and he spent the next year in jail fighting extradition back to Oklahoma again. Although Sonoma County did end up dropping the charges because the garden wasn’t illegal under state or county laws, Oklahoma parole authorities won extradition and he was returned to finish the last seven years of his 20-year sentence.

Every human being whose life is disrupted because of the marijuana laws deserves our attention, but Will’s case is important first because people already know about the terrible injustice done to him back in Oklahoma, and second because it’s just so weird and egregious,

Rosenthal said in 2008.

“People just shake their heads and say this shouldn’t be happening. We’re trying to get him out, and we’re trying to bring this injustice to the attention of people who don’t already know about it… Apparently, Oklahoma has a lot of money to burn on this vindictiveness. This is a sad and stupid case.”

Green Aid began coordinating again with Norma Sapp, and together we all worked to publicize what was happening in attempts to prevent the extradition, but we were unsuccessful. The attention was then turned to the parole board and then-governor Brad Henry’s office. In November 2009, Henry granted him the release back to California.

Both Anna and Will have since moved to Mendocino County, in the Emerald Triangle, and have both continued to work in the legal cannabis industry. Anna now has her own successful compliance consulting business and Will has continued to grow. In 2015, Will’s parole had finally come to a close, and he was free.

Bringing It All Back Home: Growing Norma’s Dream

On April 20, 2019, I had the pleasure of watching Will walk Anna down the aisle at her wedding on a private lake retreat in California’s Emerald Triangle. Will wore a button-down hemp shirt with a pattern featuring lush colas and a real cannabis flower in his boutonniere. It was not lost on us that, had Will not fought so hard with the help of a nationwide network of dedicated activists behind him, he would still be living in a private prison in Oklahoma for the next 70 years and missing this moment.

We had a chance to chat, and I immediately began raving about the medical cannabis program rolling out in Oklahoma, thanks to the 2018 passage of State Question 788. My introduction to cannabis in Oklahoma was through his case and now having spent the last ten years watching and writing about the roll out of cannabis programs nationwide, Oklahoma is the last place I would have ever expected to see what is now happening in Oklahoma. Will smiled, he already knew.

In March 2019, after visiting Tulsa again for the first time since the extradition, he decided it was time to come home and grow legally. Not only that, he told me a few of the police officers who had executed the phony search warrant for methamphetamine on his home that fateful day in 1995 were serving 10-year prison sentences for a corruption scandal that had resulted in the illegal incarceration of at least 40 Oklahomans. Harold Wells, the senior officer at the heart of his case, had already been in prison longer than Will ever was.

Wells and three other officers had been convicted in federal court of a corruption scandal that exposed a history of using fake, coerced and dead confidential informants to secure the type of search warrants they had used to raid the Fosters’ home. They stole money seized during raids and used a confidential informant both to resell the drugs they and help them obtain new warrants for new raids. Wells was also caught making negotiations with an undercover federal agent posing as a meth dealer.

Today Will and his partner Trevor Fougère are running Herblix, a state-licensed breeding and cultivation operation in Tulsa. Fougère and Foster met in Northern California playing pool and competed in professional championships together.

Will bred a new cannabis variety to be part of his first harvest and release on the legal market and Fougère and Foster realized the perfect name for the new cut; “Norma’s Dream” in honor of Oklahoma’s original cannabis activist Norma Sapp, who never gave up on Will, or Oklahoma, despite 30 years of fighting for legalization in the biggest prison-state in the nation.

Norma is 30 years deep here in Oklahoma. She has been fighting for people… year after year, being the eternal optimist. Every time anyone is feeling down and like it’s a lost cause, she is the cheerleader who says we still have a chance and we can do this,

said Isaac Caviness, a co-founder of Green the Vote, an organization that worked to support the passage of SQ 788. Caviness’s business, Okie Express Transport and Sales, is the exclusive distributor of Herblix products, including Norma’s Dream.

Sapp is largely regarded as the mother of Oklahoma’s cannabis community. When she helped start Oklahoma NORML in 1984, it was just her. She had moved to rural Norman and had just started farming as she was learning about all the things that could be done with the hemp crop. She started holding “Free Breakfast for Farmers” events at a local cafe where she showed the movie Hemp for Victory. Over the years she has advocated for all of the state’s drug war victims and continued to bring the community together around any petition to improve state or local cannabis regulations.

None of us would be here today if it was not for Norma Sapp. She is so selfless, she does all of this without any expectation of wealth, glory, fame or compensation,

says Fougère. .

“Norma, she is something else,” says Foster. “Norma was always there, ever since I have known her. She came to every day of my trial, she asked me to call her from prison once a month.”

“I don’t know why I didn’t lose faith,” Sapp says about why she never gave up on Oklahoma. “I knew what was right and my attitude was always, ‘I can only do what I can do’ and so I just kept doing it, whether people agreed with me or not. I can only do what I can do, so I kept doing it.”

Will and Norma first met in 1995, six months before Will’s Tulsa home was raided. Norma was working to publicize the case of Jimmie Montgomery, a paraplegic in Sayre who was sentenced to life plus 16 years for two ounces of cannabis he was using medically. Montgomery had also fought his case in court and lost.

The private prison where Montgomery was incarcerated was not set up for wheelchair access. Montgomery ended up with a bedsore that contracted infections which ultimately led to the removal of one of his legs, and nearly his death.

He had been in his mid-20s at the time and earning a good living rebuilding engines in a garage his late father had designed for him to work in from his wheelchair. His father had built the home for him and his mother and prosecutors had offered him what he had considered to be an unreasonable plea agreement; the charges would be dropped in exchange for Montgomery forfeiting the property. He refused, and took the case to court and lost. His sentence was eventually reduced and Montgomery died at home years later.

“I had heard about Jimmie because Norma was putting out press releases. When I read one in Tulsa World, I called her. Six months later, I got busted and I called her again,” Will says.

For Norma, doing nothing in the face of these injustices was never an option, she saw how these raids and life sentences tore apart families and communities. Even when Will, Jimmie and others were serving their sentences, Norma fought to keep their memories alive outside the prison walls. She has continued to dedicate her life to changing the minds of legislators, regulators and other influential officials around the state, as well as being a focal point for activists to rally around.

“I knew abuses were happening in the state and I went to every legislator in that capitol to tell them,” Sapp says. “Somebody has to keep talking about it, because we get too comfortable in our own lives.”

Thanks in part to Sapp’s unrelenting dedication, the fruits of Oklahoma’s hard-fought medical cannabis law are now growing all around her. She is thrilled with the changes, but hasn’t stopped defending them and pushing for more justice.

“I think it’s wonderful that people get to come home, it’s like a reverse Grapes of Wrath,” Sapp says.

Justice Sooner

Last year the state of Oklahoma officially became the world’s incarceration capital, with more prisoners per capita than any other state or country. That June, a dedicated statewide network of activists, including Norma Sapp, helped achieve the unachievable; passing a sweeping medical cannabis law by citizen initiative.

Many of the activists who dedicated themselves to the victory were, like Will Foster, also victims of financially incentivized raids, impossible plea deals, incarceration in the state’s swelling private prisons and vindictive political prosecutions perpetrated by corrupt police special investigations units.

Not only have Oklahomans shown the rest of the country what is possible when grassroots activists work in the same direction towards a common goal, they are now pushing for sweeping changes in the state’s criminal justice system. In 2016, nearly 60 percent of voters approved state questions 780 and 781, criminal justice reforms that diverted non-violent offenders out of state prisons. Still, the tough-on-crime policies instituted in the 1990s when the state first entered into contracts with private prisons remain.

Governor Kevin Stitt took office last year promising reforms.

Right now, we’re incarcerating people we’re mad at. We’re not really afraid of them… I’ll lead the effort to turn that around,

Stitt said.

A comprehensive set of five criminal justice reform bills was introduced in the Oklahoma Legislature this year but were met with a wave of opposition from lobbyists. Only one passed, but the other four could surface again in 2020 with popular support.