DISPARITY IN DRUG SENTENCES CRITICIZED

Convicts' Punishment Varies Widely Because Of 'Sloppy' Legislation

As Dezerro D. Smith serves out the first months of an 11 1/2-year prison
sentence for third-time cocaine possession, other repeat drug users
convicted recently in Kansas are being sentenced to probation and drug
treatment.

A new drug-treatment law, which took effect nearly a year ago, is
being applied unevenly across the state by different judges.

In Douglas County, a judge decided the law didn't apply to people who,
like Smith, committed their crimes before the effective date of the
law: July 1, 2003. But judges in other parts of the state have
interpreted the law differently, and are sending offenders to
probation and treatment.

Some argue that Smith's sentence is, legally, a proper one because
it's the punishment that was in effect at the time of his crime.

But Smith's attorney, Jessica Kunen of Lawrence, said her client was
unfairly suffering because the law was open to interpretation. That's
to say nothing of the effect on taxpayers who will pay the estimated
$220,000-plus it will cost to keep Smith incarcerated.

"It just seems arbitrary," Kunen said. "If the statute is so unclear
as to be subject to various interpretations, then it must be
interpreted in favor of the defendant."

Is "sloppy" too strong a word to describe the new drug-sentencing law?
Rep. Jeff Goering, a Wichita Republican who worked on the bill in
committee and later voted against it, doesn't think so.

"I think that's a good word to describe it," he said.

What happened

Smith, 33, of Kansas City, Kan., was charged with third-time cocaine
possession in Douglas County in 2002. He's never been convicted of
dealing drugs.

"I just think Dezerro had trouble with drugs and addiction and was
never really able to get away from it," Kunen said. "He's not a
danger. I just think 12 years is so disproportionate to what he did."

Smith's case arose about the time the Legislature was working on a new
drug-treatment law aimed at freeing prison beds for violent criminals.
The law, Senate Bill 123, passed last spring and was signed by Gov.
Kathleen Sebelius.

It did away with enhanced penalties for second and third-time drug
possession and created a required sentence of probation and drug
treatment for people like Smith.

The text of the law says it applies to all people sentenced on or
after Nov. 1, 2003. Smith was sentenced Feb. 10, 2004.

So what's the problem?

Even though the law doesn't specifically say that people whose crimes
were committed before a certain date would be cut off from the
program, it does say the law goes into effect July 1, 2003.

At Smith's sentencing, prosecutors in Dist. Atty. Christine Kenney's
office argued that meant it didn't apply to crimes committed before
that date. Judge Jack Murphy agreed and ordered Smith to serve the
sentence called for under old law: 138 months in prison.

Different outcome

Since Nov. 1, 32 people statewide have had a judge find just the
opposite at sentencing: that even though their drug crimes occurred as
far back as 2001, they still were eligible for probation and treatment
pursuant to the new law.

It's happened in 15 counties, including nearby Johnson, Miami and Lyon
counties, according to figures from the Kansas Sentencing Commission.

"We decided anybody sentenced after November 1 would be in the
program, no matter when the offense occurred," said Judge Lee Fowler,
of Lyon County District Court in Emporia.

Prosecutors there didn't object to the lenient application of the law,
Fowler said. But he said they might have had there been a
repeat-offense case similar to Smith's.

Most of those 32 people statewide were first-time offenders who
probably would have been put on probation even under the old laws.

But four of the 32 were repeat drug offenders, and at least two of
those four, Jeremy J. Peavy and Ronald McFadden of Neosho County,
probably would have been sent to prison under the old laws because of
their criminal history.

Neither those men nor their attorneys could be reached for comment
last week.

The little guy

Goering said that, in retrospect, it would have made more sense to
make the effective date and the sentencing cutoff date the same.

He said he didn't know why that wasn't cleared up before the law
passed, but he said he thought lawmakers meant the law to apply to
everyone sentenced after Nov. 1, 2003 -- period.

"It was this type of guy (Smith) that Senate Bill 123 was intended to
address," Goering said.

Even after Judge Murphy ruled the new law didn't apply to Smith's
case, he could have given Smith a lighter sentence if he'd found there
were "substantial and compelling" reasons. Kunen argued there were
such reasons, but Dist. Atty. Kenney's office opposed the request.

An assistant prosecutor in Kenney's office, Dan Dunbar, alleged Smith
had drug treatment previously and failed to finish it. Asked whether
she thought prison would be beneficial to Smith, Kenney said she
couldn't predict that.

But she said his circumstances had to be weighed against the best
interest of the community.

And she said she disagreed with Senate Bill 123 to begin with.

Judge Murphy declined to discuss the case, saying through his
executive assistant that it would be improper because Smith has filed
an appeal.

Smith is incarcerated at Norton Correctional Facility, where he has
filed a request for clemency, said his mother, Helen Manning Coleman,
of Kansas City, Kan.

"I don't think it's fair," she said. "The little guy gets caught up in
the big stuff; that's all this amounts to."