Pubdate: Sat, 10 Jun 2006 Source: Charlotte Observer (NC) Copyright: 2006 The Charlotte Observer Contact: http://www.charlotte.com/mld/observer/ Details: http://www.mapinc.org/media/78 Author: Gene Johnson, Associated Press Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture) Bookmark: http://www.mapinc.org/corrupt.htm (Corruption - United States) GIVE TO FUND, GET A LIGHTER SENTENCE Some Liken Plea-Deal Donations To Restitution; Others Doubt Legality BELLINGHAM, Wash. - Neither Joshua Sutton nor Joseph Hubbard had a criminal record before they bought $15,000 worth of marijuana from an undercover detective in Whatcom County last year. Both were arrested and charged with possession with intent to deliver, a felony. But then their cases diverged dramatically, thanks to a practice that has been routine for nearly three decades in this county along the Canadian border where smugglers crowd the courts and jails. Sutton, who put up most or all of the money for the drug buy, paid $9,040 into a fund set up by the county prosecutor's office. He was allowed to plead guilty to a misdemeanor, received a suspended sentence, and went on his way. Hubbard, who was caught with the drugs, did not pay anything, pleaded guilty as charged and was sentenced to 45 days on a work crew. The felony on his record means he loses the right to vote, and it could affect his ability to land a job for the rest of his life. Some lawyers say the men's cases illustrate an unusual -- and legally dubious -- system in which defendants with quick access to $2,000 or more can essentially buy down the charges against them. In more than a dozen recent cases reviewed by The Associated Press, reduced charges coincided with payments to the county's drug-enforcement fund. Some cases involved people who pleaded guilty to misdemeanors after being caught with more marijuana than the 7 pounds Hubbard had. "Yikes, it sounds like the sale of indulgences in the old Catholic Church," said Janet Ainsworth, a criminal law professor at Seattle University. "If you were to have a continuum between paying a fine and bribery, this is somewhere in between." Whatcom County prosecutor Dave McEachran said that the practice, which he began in the late 1970s, is ethically sound, and that the payments should be considered part of the penalty for the offense, just like restitution in embezzlement cases. In such cases, defendants often get less jail time if they can repay the victims. But some lawyers, law professors and other prosecutors rejected that comparison. The payments are not fines spelled out in law, and they are not restitution, either, because there are no victims being compensated, they said. They said defendants are paying to avoid punishment. In the past three years, defendants have paid $432,000 into the fund, McEachran said. He said that the money is used to help pay law enforcement costs. McEachran, whose prosecutors handle 500 drug cases a year, said his office made a deal with Sutton because it had less evidence against him: Sutton was in cell phone contact when Hubbard made the purchase, but never touched the drugs. McEachran said he does not believe his office offered a deal to Hubbard, because Hubbard was caught with the marijuana. But Andrew Subin, Hubbard's attorney, said that when Sutton's charge was reduced to a misdemeanor, Subin asked the deputy prosecutor, "Where's my deal?" The response, according to Subin: "When your guy has $10,000, then we can talk." - --- MAP posted-by: Larry Seguin