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."
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MAP posted-by: Larry Seguin