Cash earns lesser charge for some

BELLINGHAM – Neither Joshua Sutton nor Joseph Hubbard had any criminal history when they bought $15,000 worth of marijuana from an undercover detective in Whatcom County last year. Both were arrested and charged with unlawful 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 on the Canadian border, where federal agents dump reams of drug cases on local officials every year.

Sutton, who put up most or all of the money for the drug buy, paid $9,040 to a fund administered by the Whatcom County prosecutor. He was allowed to plead guilty to a reduced misdemeanor charge, received a suspended sentence and went on his way. His payment was nearly double the maximum fine for the misdemeanor.

Hubbard, a construction worker, 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.

Their cases illustrate the inequality of an unusual system in which defendants with quick access to $2,000 or more can often “buy down” the charges against them, many legal experts say. In some cases reviewed by the Associated Press, people caught with several pounds of marijuana pleaded guilty to reduced misdemeanor charges after paying thousands of dollars to the county’s fund. In another, a young man caught with less than 2 ounces pleaded guilty to a felony after he failed to pay.

“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.”

Practice draws criticism

The money, which must be paid up front, is directed to the county’s drug enforcement fund. It’s disbursed by Prosecutor Dave McEachran with court approval, and is used to buy new equipment for the county’s drug task force, to help pay the salaries of certain sheriff’s officers and to fund drug investigations and drug court. In the past three years, defendants have paid the fund $432,000, McEachran said. McEachran’s 10 criminal deputy prosecutors handle about 500 drug cases a year.

The county keeps all money paid into the drug fund – unlike regular fines, which must be split with the state.

Steven Mura, the presiding judge of Whatcom County Superior Court, said his calendar often is so swamped that he gives only a cursory glance to plea agreements before signing them. He said he would be interested if a lawyer were to challenge drug fund payments as part of plea deals.

“It can appear to be the purchase of a lesser charge,” Mura said.

Several lawyers began questioning the practice this spring, after news stories detailed a similar but distinct practice in the central Washington city of Kennewick, where defendants in misdemeanor cases had their charges dismissed or reduced in exchange for contributions to charities selected by the prosecutor. There, $18,000 in charity contributions vanished.

There are no allegations of missing money in Whatcom County. In interviews with the Associated Press, McEachran defended the practice, which he inaugurated in the late 1970s, as ethically sound. The payments, he argued, should be considered a fine, part of the penalty for the offense – no different than restitution in embezzlement cases. In such cases, defendants often get less jail time if they can repay the victims.

But several lawyers, law professors and other prosecutors drew a distinction. This isn’t restitution, they said, and it’s not a penalty prescribed by law: It’s a payment to avoid punishment.

“Plea bargaining isn’t always pretty, but this just seems to make a mockery of it,” said Helen Anderson, who teaches criminal law at the University of Washington law school.

“You kind of wonder, ‘Gee, is this quite right?’” said Bellingham defense attorney Thomas Fryer. “But if you’re looking at it as the best possible arrangement for your client, you’re not going to just take a stand. If that means a drug fund contribution, so be it.”

McEachran insists his prosecutors strive to be fair, and disputes the notion that the system favors those most able to pay. “We just don’t see that,” he said.

Fund may favor the rich

McEachran said his office entered into a deal with Sutton because it had less evidence against him: Though Sutton drove by repeatedly and was in cell phone contact as Hubbard bought the 7 pounds of marijuana, Sutton never touched the drugs. Hubbard was caught red-handed, so he wouldn’t have been offered a deal, McEachran said.

The Associated Press found several cases in which people caught with more marijuana than Hubbard made drug fund payments in exchange for reduced charges. Hubbard’s lawyer, Andrew Subin of Bellingham, suggested the only reason his client didn’t get a deal is because he’s poor. He drives a $500 truck and often works seven days a week to support his girlfriend’s disabled child, Subin said.

When Sutton’s charge was reduced to a gross misdemeanor, Subin asked the deputy prosecutor, Craig Chambers, “Where’s my deal?” Chambers directed an interview request to McEachran, but Subin said his response was: “When your guy has $10,000, then we can talk.”

“Who’s the big player, and who walks away from this getting screwed?” Subin said. He also wondered: If the case against Sutton was so weak, why did it cost him nearly $10,000 to have the charge reduced?

Sutton’s lawyer, Jeff Steinborn of Seattle, supports Whatcom County’s practice.

“Anything that mitigates the harshness of this insane drug law is a good thing,” he said.

Another of Subin’s clients, 22-year-old community college student Jesse Gilsoul, pleaded guilty to felony marijuana possession last month for having less than 2 ounces of marijuana. Prosecutors offered him the chance to pay $2,000 to have the charge reduced to a misdemeanor, according to both sides.

Gilsoul, who lost one of his two restaurant jobs following his arrest in December, said he did not have the money. He was sentenced to a month of community service and $1,800 in fines and court costs, to be paid as he is able. He fears the felony, his first offense, will jeopardize his financial aid.

“I wish I did have that rich uncle,” Gilsoul said. “Obviously, if I was making a profit off drugs, I could come up with a couple grand real easily.”

McEachran had little sympathy, noting that Gilsoul failed a lie-detector test when he said he did not intend to sell the marijuana. But the test was administered after Gilsoul failed to pay the drug fund. If he had come up with the money, the issue of his honesty would never have arisen.

Other options available

Subin acknowledged that defendants don’t necessarily have to pay to have charges reduced – it just helps.

Jon Ostlund, the Whatcom County public defender, said he could think of two cases where charges were reduced because the defendant agreed to perform 240 hours of community service before sentencing. Prompted partly by the Associated Press’ reporting, his office held a meeting about the practice recently; staff members said they would like to see more cases in which alternatives to the drug fund payment are accepted.

“If there’s a policy that rich people can buy their way out of a case, I don’t have the impression that’s what’s happening here,” Ostlund said. But, he added, “I’m sure there are cases where we weren’t able to work out something, and maybe they would have been able to if they had more money.”

Irwin Schwartz, chairman of the American Bar Association’s criminal standards committee, declined to comment on Whatcom County’s practice, but said he hopes to form a task force to examine “best practices” for handling drug courts, deferred prosecutions and nonprosecution agreements.

A spokeswoman at the National District Attorneys Association said she had not heard of the practice being used in other states; Pam Loginsky, a spokeswoman with the Washington Association of Prosecuting Attorneys, said she had never heard of a county in Washington state negotiating drug fund payments as part of plea deals.

The prosecutor’s offices in King, Snohomish, Pierce and Spokane counties all said money is not on the table when they negotiate plea deals.

“We do reduce a lot of felony drug charges to misdemeanor charges, but it’s not based on whether you can pay a $1,000 fine,” said Joan Cavagnaro, chief criminal deputy prosecutor in Snohomish County. “It’s based on the strength of the case.”

John Strait, a legal ethics expert at Seattle University Law, said four lawyers have contacted him recently with questions about Whatcom County’s practice. He noted that the U.S. Supreme Court has struck down systems where defendants can choose between paying a fine or doing time, because it often means jail for those who can’t afford to pay.

There’s also a potential conflict of interest, he said, because McEachran’s office is making charging decisions based in part on the money it can obtain for a fund he administers.

“We should be punishing people for what they’ve done, rather than by who’s going to give us money,” Strait said.

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