SOME CAN AFFORD TO DO THE CRIME

County Lets Smugglers Pay Down Charges

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 system in
which defendants with quick access to $2,000 or more can 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 seven
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.

Whatcom County prosecutor Dave McEachran said that the practice,
which he began in the late 1970s, is ethically sound, and 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 the law, and
they are not restitution either, because there are no victims being
compensated, they said. They said defendants are simply 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, and that he makes disbursements with court
approval. The county keeps 100 percent of the money. In contrast,
ordinary fines must be split with the state.

McEachran, whose prosecutors handle 500 drug cases a year, said his
office made a deal with Sutton because it had less evidence against him.

But Andrew Subin, Hubbard's attorney, suggested the construction
worker was not given a deal because he could not come up with enough
money. Subin said that when Sutton's charge was reduced, he asked the
deputy prosecutor, "Where's my deal?" The response, according to
Subin: "When your guy has $10,000, then we can talk."