IS JUSTICE FOR SALE IN BORDER COUNTY?

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
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 often can "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."

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, for drug investigations and for 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 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.

"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
saw 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, 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."
Whatcom Co. cases

Among the Whatcom County Superior Court cases reviewed:

*Aleksandar Stanimirovic, 34, of Vancouver, Wash., was stopped
entering the United States from British Columbia in a semitrailer
July 28, 2005. Hidden in the ceiling of the truck was 146 pounds of
marijuana, worth at least $200,000, according to court documents.
Prosecutors originally charged him with a class B felony. He agreed
to pay $5,000 to the drug fund, and the charge was dropped to a class
C felony. He was sentenced to one month on work release, one month of
community service and $2,000 in other fines and court fees.

*Cameron James Stewart, 30, of Vancouver, B.C., admitted smuggling
for profit after he was arrested at the border in 2003 with 10 pounds
of marijuana hidden in a tire - but said he thought he was smuggling
Cuban cigars. He agreed to pay $3,000 to the drug fund, and his
felony charge of possession with intent to deliver was dropped to
misdemeanor possession. He was sentenced to two days.

*Tami Dale Marshall faced two felony counts last year after she was
caught at the border with 15 pounds of marijuana. When she agreed to
give $3,000 to the drug fund, the first charge was dropped. The
sentence: two months of work release and $2,000 in other fines and fees.

*Vance Miguel Tarrida, 26, a Canadian resident, was arrested entering
the United States at the Lynden border crossing Jan. 29, 2005.
Prosecutors said investigators found 3 pounds of marijuana in his
bags and clothing. He agreed to pay $2,500 to the drug fund, and his
felony charge of possession with intent to deliver was reduced to the
gross misdemeanor of soliciting the delivery of marijuana. He was
given a yearlong suspended sentence and fined an additional $1,000.