Lawyers question drug fund's fairness

BELLINGHAM, Whatcom County – 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 which 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 AP, 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.”

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 equipment for the county’s drug task force, to help pay the salaries of certain sheriff’s officers, for drug investigations and for drug court. In the past three years, defendants have contributed $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 is often 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.

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

There are no allegations of missing money in Whatcom County. In interviews with the AP, 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 – just like 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.”

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 AP 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 was because he’s poor. He drives a $500 truck and often works seven days a week to support his girlfriend’s handicapped 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 according to Subin, 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?” said Subin. 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.”

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 AP’s 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, and Pam Loginsky, a spokeswoman with the Washington Association of Prosecuting Attorneys, said she had never heard of a county in Washington 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.John Strait, a legal ethics expert at Seattle University Law, said there’s a potential conflict of interest 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.

So, if it wasn 't administered by only the local officials it would be OK?

Not entirely because it too often seems that the purpose of the drug war is to raise funds for the government, but at least the incentives for corruption wouldn't be so direct.

In many cases I think it would be appropriate to give a lighter punishment to those who can afford to make the victims of a crime whole again. If a person can't pay restitution for their actions then there is more need to punish them in order to prevent more harm to future victims.

Shoot, where I live police and prosecutors don't even need approval from a judge for expenditures from their asset forfeiture funds. They get audited every once in a while, but the only requirement is that they only use the money for "law enforcement or prosecutorial purposes." So far they've never gotten in trouble for how they spend the money. All the attorneys in the prosecutor's office and several of their staff drive fancy "company cars" that were either seized or paid for with asset forfeiture funds, as are a lot of the cars driven by members of local law enforcement. Their fancy cell phone/pda's that they use for personal use as well as work, just like the cars, are all paid for with asset forfeiture funds. Their offices are lavishly furnished. They've got the awesome computer system and nothing but the best software, with each attorney having a desktop for their office and a laptop for downtown. They've paid to wire the whole downtown it seems so their wireless network works anywhere they might need it. They and everyone in local law enforcement have memberships to the gym paid for out of asset forfeiture funds, and for some strange reason the prosecutors all have televisions with cable in their offices. They have extra staff members whose salaries are paid out of those funds. When they go on continuing legal education trips they're always all expense paid trips to exotic places. They have money for whatever they need or want it seems as long as they can somehow loosely tie it to "law enforcement or prosecutorial purposes." All this money really gives them a strong advantage over all but the most wealthy defendants. They have money to hire any expert witnesses they want to hire. They can have all sorts of video and graphic demonstrative evidence professionally done. They can decide to just fly witnesses in from anywhere in the country the day before court and put them up in hotels. They're just flush with cash that pays for a lot of perks and supplements their war chest such that you've just got to have a lot of money if you want to be on equal footing with them at trial.

Most cases never make it to trial though. The national average for is only about 2.5% of all felony cases ever make it to jury trial. Almost all of them are resolved by plea. If you have enough money you can afford a decent defense. But if you're a criminal caught red handed and likely to get convicted no matter how much money you spend, and you happen to have lots of money, why not buy a sweet deal if you can rather than blowing a lot of money on a trial where you'll lose anyway and get hammered hard? This stuff happens everywhere. I see it going on all the time, and I'm always in court. I'm a public defender so most of my clients can't come up with a big chunk of money to get a better deal, but I always tell them up front to save up as much money as possible because it will help in plea negotiations in the future. What bothers me the most about all of this is that often the really bad guys get off easy this way, especially in drug cases. The big fish swim away while the small fish get filleted. That's just the way of the world I guess.

I live near a small town where they built a brand new public safety building for both the cops and fire department from asset forfeitures. It was by far the biggest and most expensive building in town and was better equipped than the larger cities in the area. Very few of the cases had any involvement any where near Black Diamond, Washington where one hotshot detective traveled all over the country acquiring all the booty possible through asset forfeiture laws. His primary objective in pursuing cases was how much money could be seized. He set records for the amount seized by a single police department, topping even the amount seized by big cities. Getting a conviction was of far less importance than how much money could be acquired for his city and police department. There is nothing about such a system that resembles justice.

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