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Prosecutorial Discretion and the Death of Common Sense

By Adam Smith, Associate Director DRCNet

Billy Polson, a 17-year-old Missouri boy was sentenced to serve ten years in prison for helping a police informant to purchase $20 worth of marijuana within 2,000 feet of a college. Polson had no prior criminal record, and was not himself selling drugs. The informant, one Alex Martinez, was dating Polson's older sister at the time, and apparently lured the youngster to commit his offense within the legally defined "school zone."

The sentence in the case was the minimum allowed under the law, which requires 10 years to life. The judge, while he had the option of setting aside the conviction, had no discretion to impose a lighter sentence while letting the conviction stand. This is the way it works with mandatory minimum laws. The prosecutor, in choosing the charge, also mandates the sentence should a guilty verdict be returned.

None of this is unusual, of course. Just this week, Angela Thompson was released after being pardoned on Christmas by New York's Governor George Pataki. Ms. Thompson, 17 years old and pregnant at the time, was given a fifteen year-minimum sentence in 1989. She had been living with her uncle, a two-time convicted felon, when she was arrested. Her uncle had been under investigation for his continuing drug dealing, and on the day he was to be busted, undercover agents came to his door to pick up two ounces of cocaine.

When the doorbell rang, he instructed his niece to answer the door and to hand over the wrapped package. Despite the fact that Ms. Thompson had not previously been identified in the investigation, and her apparent lack of involvement in anything other than that single act which was carried out at the direction of her uncle, she was tried and convicted.

Ms. Thompson was initially sentenced to 8 years in prison by judge Juanita Newton, but that was apparently not enough for the prosecutors, who, despite the fact that she had no prior criminal record, appealed the sentence as being inconsistent with New York's tough Rockefeller drug laws. The appeal was successful and Ms. Thompson was given fifteen years to life, the same sentence as her uncle. Her pardon, after 8 years in prison, was the result of a long campaign led by retired State Supreme Court Justice Jerome W. Marks.

In another case in another part of the country, Will Foster, a 38-year-old self-employed father of three, also with no criminal record, was tried for cultivation of marijuana.

Foster, who suffers from severe rheumatoid arthritis, smoked marijuana in lieu of the strong narcotics prescribed to him by his doctor. The narcotics, he claims, left him groggy and nauseous, unable to work. He was busted on an anonymous tip. State and county agents, kicking in the door to the family's home, found several dozen plants, many just seedlings, in a bomb shelter in the Foster's basement.

During closing arguments, the young prosecutor told the jury that in considering sentencing, they should simply "pick a number, and add a couple of zeros to it."

Foster was sentenced to 93 years in prison.

All prosecutors have the discretion to charge, or not to charge, as they see fit. This power has always played an important role in our justice system, but never has that power been as potent as it is today, with mandatory minimum sentences removing nearly all discretion from the hands of judges. But rather than making prosecutors more wary of their own power­­the ability to destroy the life of a young person based upon a single decision at the outset of criminal proceedings­­the rhetoric and draconian sentences of the drug war seem only to have made the lives of the accused less worthy of consideration.

What good will come of sending 17-year-old Billy Polson to prison for ten years based upon the facts of his case? He is not violent. He wasn't even dealing marijuana himself.

His upkeep will cost taxpayers over a quarter of a million dollars. He will likely come out a hardened and bitter man. Polson's prosecutor, a man by the name of Greg Robinson, is up for re-election this year. According to Polson's attorney, Dan Viets, Robinson wished to make an example of the youth to help his upcoming campaign. Is that the going rate for the destruction of a young life? A campaign sound-bite?

The drug war has had a tremendous number of devastating effects on our society, but one of the least remarked-upon has been the effect that it has had on our prosecutors. A prosecutor's job is to seek justice, not to rack up convictions and years like so many notches on a gunslinger's belt.

Billy Polson broke the law of Missouri by helping a man who was dating his older sister, a snitch who he thought was his friend, to find a twenty dollar-bag of weed. Greg Robinson, wielding vast and discretionary power entrusted to him by the voters of Lafayette, threw his life away. It is sick that he thinks such abuse will help him to be re-elected. It will be sicker if he is right.

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