MUSHROOMS V MURDER: SENTENCES IN KANSAS DON'T ALL FIT THE CRIME

Stephen Fletcher II tried to grow some psychedelic mushrooms in his
Lawrence apartment.

Tremain V. Scott shot and killed a man at close range during an armed
confrontation, then, according to an eyewitness, took the victim's gun
and shot him with it as he lay on the ground.

An autopsy showed the victim had been shot 18 times.

Both Fletcher and Scott are in their early 20s and have little or no
criminal-conviction record, their attorneys say. So who's facing the
stiffer sentence?

Fletcher, by double.

Under state drug-sentencing guidelines, he's facing at least 11 1/2
years in prison unless a judge finds "substantial and compelling"
reasons to lighten the sentence. Under a separate set of guidelines
for all nondrug crimes, Scott faces between four and six years in
prison for his violent crime.

"There's no question that that's not equitable," said Donald E.
Jackson, a member of the Kansas Sentencing Commission, which advises
the Legislature on sentencing policy.

The discrepancy is due to illogical, overly harsh drug sentences that
don't serve justice, advocates say. In short, under Kansas criminal
law, experimenting with forbidden fungus can be a more serious crime
than murder.

"It doesn't surprise me because I know the laws," said Lawrence
defense attorney John Frydman. "The bottom line is we are punishing
our nonviolent offenders more harshly in many cases than our violent
offenders."

'Alice in Wonderland'

There are more examples playing out in Douglas County District
Court.

Dezerro D. Smith, 33, of Kansas City, Kan., is scheduled to be
sentenced Tuesday for cocaine possession and faces the possibility of
serving about 10 years in prison.

The reason is that, until recently, cocaine possession was what
attorneys call an "enhanced offense." Get caught once, it's a level
four felony. Get caught a second time, it's a level two. Get caught a
third time -- as Smith did -- it's a level one felony, the highest
possible.

By contrast, point a gun at someone again and again, or knowingly
infect someone with HIV again and again, and each time the charge
stays at the same severity level.

The rules changed somewhat with passage this year of Senate Bill 123,
which as of Nov. 1 did away with most enhanced drug-possession
penalties. It requires drug treatment and probation instead of prison
for people like Smith. But because Smith's offense happened before
July 1, it's possible he'll end up behind bars -- again.

Lawrence defense attorney Jonathan Becker sees another problem with
the new drug-treatment bill. Some drug users' past nondrug offenses
can come back to haunt them and disqualify them for treatment.

For example, if someone gets convicted of home burglary, then later
gets charged with drug possession, the past conviction automatically
disqualifies the person from the drug-treatment law. A past conviction
for a felony deemed slightly less severe under state law, such as
stalking, does not automatically disqualify the person.

In other words, a drug addict who once stalked someone is eligible for
drug treatment, but not a drug addict who once burglarized a home.

"Have you ever read 'Alice in Wonderland?'" Becker
asked.