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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." Among the Whatcom County Superior Court cases reviewed:
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