Buying Leniency: Small-Scale and Widespread In the criminal courts of eastern Washington, people arrested for offenses such as drunk driving could routinely get a lenient sentence by contributing money to prosecutors' favorite charities. A prominent defense lawyer in Wisconsin calls the practice the "dirty little secret" of criminal courts in America.
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Buying Leniency: Small-Scale and Widespread

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Buying Leniency: Small-Scale and Widespread

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Buying Leniency: Small-Scale and Widespread

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MELISSA BLOCK, host:

To Washington State now and a story about payoffs of a different kind. Charity may be its own reward but until recently charity was also a good way to duck a drunk driving charge in Kennewick, Washington. For the past few years, the city has lowered or dropped charges against some criminal defendants in exchange for donations to a city recreation program.

And as NPR's Martin Kaste reports, Kennewick's system of cash for clemency is hardly unique.

MARTIN KASTE reporting:

Travis Locke has become a minor celebrity in Kennewick. But if you want to talk to him, you have to pick up a phone in the visiting room at the Benton County Jail. He's on a video screen dressed in black and white stripes and he cups his hand over the phone as he talks, sometimes shooting a nervous glance as his fellow inmates. He says they give him a hard time.

Mr. TRAVIS LOCKE (Inmate): They all say look at me and say, oh, that's the guy.

KASTE: Locke is the guy who exposed the prosecutor's donation system, a system some of the inmates use to count on. In his case, he says the city's prosecutor offered to ignore his previous drunk driving offenses in return for a donation to a city-run recreation program.

And he says he was told not to write a check.

Mr. LOCKE: He preferred cash. He just said that was easier.

KASTE: Locke came up with $1,400 cash and got off easy. But when he was arrested again on another DUI, his new defense attorney convinced him to spill the beans to the court about the previous deal. That caused the local paper, the Tri-City Herald, to start digging.

Scores of other cash donations have now surfaced and some former defendants say they paid a lot more to the charity than it says it ever received. That convinced the prosecutor's boss, city attorney John Ziobro(ph), to shut the donation program down.

Mr. JOHN ZIOBRO (Kennewick City Attorney): It's unfortunate. You had criminal defendants who are in a very vulnerable position of facing, you know, significant criminal sanctions and they were taken advantage of.

KASTE: The prosecutor and the defense lawyer have quit and the FBI is investigating. The neighboring city of Richland has now shut down a similar donations for leniency program there. If someone stole donations, that's bad enough. But Steve Gillers, a legal ethic scholar at New York University, says there's a bigger problem. Prosecutors simply should not be negotiating financial deals outside the scrutiny of the court.

Mr. STEVE GILLERS (New York University): It's extralegal and inappropriate because it undermines public confidence in the fairness of the system since not everyone has the money and in the objectivity of the prosecutor in deciding how to dispose of the case.

KASTE: Giller says there was a similar situation in Manhattan 10 years ago in which a real estate company settled criminal charges in part by making $100,000 donation, which ended up going to the district attorney's favorite charity. Giller says he assumes the Manhattan case was an aberration.

Mr. GILLER: It would shock me to learn that it is more extensive.

KASTE: But charity for leniency deals do crop up elsewhere. Just last year, federal prosecutors in New Jersey cut a deal with a drug company, a deal that included a donation to the US attorney's own alma mater law school. In Wisconsin, it used to be commonplace for prosecutors to solicit donations to crime prevention organizations such as DARE. Donation deals were so prevalent, the state legislature finally banned them in 2000.

Mr. STEVE HURLEY (Defense Attorney, Madison, Wisconsin): It's our dirty little secret.

KASTE: Steve Hurley is a top flight defense lawyer based in Madison. He says his clients have been offered leniency in exchange for charity in every state where he's ever practiced.

Mr. HURLEY: And the hard part, of course, is that while all defense lawyers don't like this, we're hard-pressed to say anything out loud. Tomorrow's client may be one who benefits from this even if the day after tomorrow we have a client who's hurt by it.

KASTE: The National District Attorney's Association says it hasn't researched the prevalence of this practice nationwide and it doesn't have any rules against it. Neither does the American Bar Association, though it's planning an ethics task force on the subject. The system does have its defenders especially local officials who like the fact that donations stay in city coffers, whereas court fines are often shared with the state. Kennewick city attorney John Ziobro says he doesn't' see a great moral difference between donations and the other kinds of court fines that are routinely negotiated with defendants.

Mr. ZIOBRO: Let's say they're terrified of jail like many people are and said tell you what, why don't I pay you a $2,000 fine and do no jail? Would a prosecutor be breaching some ethical duty by accepting it? Absolutely not. So when you say, can you buy your way out? People do every day.

KASTE: Even Travis Locke sitting in jail has mixed feelings about the program. He says he's getting a lot of flack from fellow inmates. They want to know why he had to go and squeal on lawyers who were just trying to cut him a deal.

Martin Kaste, NPR News, Seattle.

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