Pubdate: Sun, 02 Feb 2003 Source: Lexington Herald-Leader (KY) Copyright: 2003 Lexington Herald-Leader Contact: http://www.kentucky.com/mld/heraldleader/ Details: http://www.mapinc.org/media/240 Authors: Bill Estep, Tom Lasseter and Linda J. Johnson TRYING PUBLIC TRUST Punishment of Drug Offenders Varies Widely MANCHESTER - Monroe Sizemore, a former coal miner, makes no bones about it: He has sold drugs to make extra money. Police say they've caught him selling pills or cocaine four times since 1994, but Sizemore hasn't had to pay much in the way of penalties. Dismissals, reduced charges and shock probation meant that he spent about a month in jail on the first three drug charges. "I think it was awful nice," Sizemore said, to get "a three-time break." Last year, he pleaded guilty to possession of cocaine -- a charge that was amended down from trafficking. Court records say he was sentenced to four years' probation after serving 59 days in jail. He also served six months of home incarceration. Stories like Sizemore's suggest that the court system presents little deterrent to drug offenders -- a suggestion that judges and prosecutors call simplistic. Still, in Eastern Kentucky, a region besieged by traffickers and the misery they feed, there's no escaping the fact that often the crime is like cancer and the punishment like aspirin. For example: . In Magoffin County, an assistant commonwealth's attorney said the Kentucky State Police have served notice that they don't trust local prosecution. . In Perry County, the prosecutor says the circuit judge won't let him get tough on drug traffickers. . In Owsley County, a judge dismissed several cases as a result of misinterpreting the law. . In Martin County, a district judge last month dismissed more than 120 cases in a single order, saying they had lingered too long without any real prosecution. A few were older than 10 years. The Herald-Leader examined hundreds of individual criminal court files, and electronic summaries of more than 39,000 drug cases filed in circuit courts from 1996 through early 2002. The electronic records showed that circuit courts around the state rank poorly on various measures: . Courts in 32 counties had conviction rates of 50 percent or less in drug cases. . Courts in 18 counties dismissed 20 percent or more of their drug cases. . Courts in 25 counties granted probation to more than 60 percent of the people convicted of drug crimes. . And courts in 18 counties allowed at least 20 percent of their cases to linger 18 months or more without resolutions -- risking the loss of evidence or witnesses' memories. (The American Bar Association recommends that all felony cases be resolved within a year.) Courts in six counties ranked among the worst on three or more of those measures. All were in Eastern Kentucky. Criminologists have long debated the effect that tough enforcement and sentencing have on reducing drug crime. But prosecutors and others say that effective, consistent enforcement is vital to maintaining public confidence in the judicial system. "A community needs to know that people who violate the law will be held accountable," said Bell Commonwealth's Attorney Karen Blondell. So why are drug cases handled differently, depending on the county in which they're tried? Some prosecutors are more aggressive than others, and judges' philosophies differ. But experts -- and former court officials -- say politics plays a key role. In rural Kentucky, elected sheriffs, prosecutors and judges are particularly susceptible to political influence, said Gary Potter, a criminal-justice professor at Eastern Kentucky University. Potter has made several studies of crime in rural Kentucky. Rural electorates are small, and extended families are large, Potter noted. "If you arrest a bootlegger, or a marijuana grower, or an OxyContin seller in a particular family, and pursue the case all the way through, you're not just angering that one person," Potter said. "You may be angering hundreds of constituents in a county that may only have two, three, four thousand votes. So there is a great deal of discretion applied by criminal-justice personnel, some of which is simply politically motivated." Harlan County Sheriff Steve Duff attributed some officials' reluctance to bust drug dealers to "a sense of self-preservation for sheriffs who want to get re-elected." Steve Tackett was not re-elected as Perry County commonwealth's attorney in 2000. But he could have been, he said, if he'd made political deals. "There were several cases that I had that if I had agreed to dismissals, I would have gotten enough votes to win the election," Tackett said. "In a county the size of Perry, a large family can make a difference. And if you are politically astute, I guess you watch who you indict." Plenty of Chances For Error Kentucky's top judge, Supreme Court Chief Justice Joseph Lambert, said there are many reasons for the disparate handling of drug cases. The factors include differences in the quality of police work and prosecution. To be sure, there are many valid reasons courts don't convict every defendant -- or send every convict to prison. Many drug offenders get probation because prison space is limited and costly. Gov. Paul Patton angered prosecutors recently when, in a bid to save money, he released nearly 900 non-violent offenders -- including many drug convicts -- from prisons before their sentences were complete. Prosecutors often dismiss or reduce charges to bargain for guilty pleas -- a necessity in a swamped system that can't try every case. Informants, who are often key witnesses in drug cases, disappear or commit crimes of their own, undermining their credibility. That's why prosecutors had to offer Monroe Sizemore probation in his most recent drug case -- the informant got in trouble, said Richie Couch, an assistant commonwealth's attorney in Clay County. Couch said many people do not understand the complexities of the courts. For example, in Sizemore's 1994 case, prosecutors couldn't use the 1,500 pills found in his house as evidence after defense attorneys successfully argued that police had exceeded the bounds of their warrant. "Drug cases, to me, are the hardest cases we have," Couch said, in part because a number of things can go wrong with them. Who is to blame? When things go wrong in the courtroom, it's not always easy to determine who's responsible. For example, District Judge Susan M. Johnson last month issued a blanket order dismissing more than 120 cases in Martin County -- including such charges as felony assault and drug trafficking. The cases, which were filed from 1991 through last year, had lingered without indictments after they were referred to the grand jury from district court. There is no indication in court files that the cases were ever presented to the grand jury, said Martin Circuit Clerk Jack H. Horn. Presenting cases is typically the job of the prosecutor, but Commonwealth's Attorney Anna Melvin, who took office in 1994, said she didn't know whether the cases in question were presented. Melvin said it's the job of police to bring her cases to take before grand juries. She said she has often written letters to police to try to get them to bring cases. But one former lower-court prosecutor in the circuit said police didn't want to work with Melvin. Former Johnson County Attorney Scott Pres-ton said police regularly asked him to reduce charges so cases could be resolved in district court, rather than going to Melvin's bailiwick. "I got the impression that the police officers didn't have any faith in her prosecuting abilities," said Preston, who has had bitter differences with Melvin. Melvin said no police officer had ever expressed such reservations to her. She announced an initiative last year aimed at getting more felony cases into circuit court and reassuring the public that defendants are being treated equally. In statistical terms, Melvin's circuit -- Johnson, Martin and Lawrence counties -- ranked among the worst in Kentucky in the newspaper's analysis of the state court data. The counties had a combined conviction rate of 44 percent, and a significant case backlog. But Melvin said the numbers were inaccurate or skewed by factors beyond her control. Several cases could not be resolved because police couldn't find people who had been indicted, Melvin said. She estimated that her conviction rate is consistently 85 percent or above. Data Mislead, Prosecutor Says Statewide, the data show Kentucky's average conviction rate for felony drug cases was 64 percent. The closest national comparison dates to 1998, when 72 percent of felony drug defendants were convicted in the 75 largest U.S. counties, according to the U.S. Department of Justice. Several prosecutors took issue with the picture reflected by the state data. In Fayette County, where the numbers show a conviction rate in circuit court of 60.4 percent, Commonwealth's Attorney Ray Larson said that number is artificially low. The data include cases his office didn't have a chance to prosecute, Larson said, such as cases dismissed in state court after they were adopted for federal prosecution and cases dismissed by the grand jury before any indictment. Larson's own figures, adjusted for such factors, put his 2002 conviction rate for drug cases at 98 percent. It's not clear that every county would see the kind of difference Larson cites, but it's true that the state court data do not reflect all the nuances of a complex system. The information is sent to the state Administrative Office of the Courts by local circuit clerks, and AOC officials do not vouch for its accuracy. Nonetheless, the reporting requirements are uniform statewide, making it clear that accused drug dealers face more aggressive enforcement, prosecution and penalties some places than others. - --- MAP posted-by: Alex