If you've got cash, you can walk away from a serious drug bust in Whatcom County, Washington, astride the US-Canada border between Seattle and Vancouver. In a story this week, the Associated Press reviewed marijuana cases from Whatcom County and found a system where defendants who can quickly come up with $2,000 or more can "buy down" the charges against them by paying into a fund administered by the county prosecutor.
The system of "all the justice you can afford" is an outgrowth of the county's position just across the border from the booming British Columbia marijuana industry. As a result of border busts, overworked federal prosecutors routinely dump reams of cases on overworked local prosecutors each year.
In one case examined by the AP, Joshua Sutton and Joseph Hubbard were arrested after buying $15,000 worth of pot from an undercover agent last year. Both were charged with unlawful possession with intent to deliver, a felony. But Sutton, who put up most of the money for the drug buy, paid $9,040 into the prosecutor's fund, pleaded guilty to a misdemeanor, and walked away. Hubbard, a construction worker without money, pleaded guilty as charged, was sentenced to 45 days on a county work crew, and is now stigmatized as a felon.
In other cases reviewed by the AP, many people caught with pounds of marijuana were allowed to plead to reduced misdemeanor charges if they kicked into the fund. At the same time, one young man caught with less than two ounces pleaded guilty to a felony after being unable to cough up the dough.
"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," she told the AP.
The presiding judge for the county, Steven Mura, agreed. "It can appear to be the purchase of a lesser charge," he told the AP. Mura, who said his calendar is so swamped he barely glances at plea agreements, added that he would be interested if an attorney were to challenge the payments as part of plea deals.
The money, which must be paid up front, goes to the county drug enforcement fund controlled by Prosecutor Dave McEachran with court approval. The practice has generated $432,000 for the county in the last three years, and has helped pay for new equipment for the county drug task force, for drug investigations, and for the drug court.
While McEachran defended the payments as similar to fines or restitution, lawyers and legal scholars scoffed. "Plea bargaining isn't always pretty, but this just seems to make a mockery of it," said Helen Anderson, of the University of Washington law school.
"You kind of wonder, 'Gee, is this quite right?'" Bellingham defense attorney Thomas Fryer told the AP. "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."