Mushrooms v. murder: Sentences in Kansas don't all fit the crime
By Eric Weslander, Journal-World
Sunday, November 30, 2003
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.
Drug offense
Defendant: Stephen Fletcher II, age 24.
Crime: Trying to make hallucinogenic "magic mushrooms."
Applicable statute: K.S.A. 65-4159, attempted manufacture of a controlled substance, a level one, drug felony.
Presumed penalty: Between 11.5 years and 12.8 years if he has no criminal record.
Mushrooms vs. meth
A psilocybin-mushroom growing operation isn't as dangerous as a methamphetamine lab, and mushrooms aren't as dangerous a drug as heroin.
That's what a police detective told Stephen Fletcher as investigators served a search warrant in Fletcher's apartment in September 2002, according to a police report.
Those statements may have put Fletcher at ease during the interview, but they don't reflect legal reality.
Under Kansas law, trying to grow hallucinogenic mushrooms -- which for Fletcher involved equipment such as horse droppings, brown-rice powder and moldy jars -- is treated the same as cooking meth, which involves a potentially explosive mix of chemicals.
Both offenses fit under the same criminal statute: manufacturing or attempting to manufacture a controlled substance. It used to be that a first conviction on that charge was a level 2 felony, but that changed in 1999 when the Legislature toughened the law to make it a level 1 felony on first offense, which means a minimum sentence of 11 1/2 years in prison.
Even Dan Dunbar, the assistant in Dist. Atty. Christine Kenney's office who prosecuted Fletcher's case, said he was not convinced Fletcher is the kind of person lawmakers were trying to target.
"I think they were after the meth cooks. I think the psilocybin people just got scooped up with them," Dunbar said. "It's not my goal to see this guy go to prison."
Homicide
Defendant: Tremain V. Scott, age 22.
Crime: Shooting and killing Quincy M. Sanders, 21.
Applicable statute: Charged with second-degree murder, but pleaded guilty to K.S.A. 21-3403, voluntary manslaughter, a level three, person felony.
Presumed penalty: 4.6 to 5.1 years if he has no criminal record. Second-degree murder would have been between 9 and 10.25 years.
Facing prison
If that's true, why didn't Dunbar just let Fletcher plead to a lesser offense? Dunbar said his job was to convict people of the crime they committed, and if the sentence is too strong, to try to address that at sentencing.
Under Kansas law, a judge can deviate from sentencing guidelines if there are "substantial and compelling" reasons to do so. Fletcher's attorney, Elbridge "Skip" Griffy IV, said he planned to file a motion asking Judge Michael Malone to do that when Fletcher appears for sentencing Dec. 12.
There's a complication, however. The 1999 change to the law added language that says a sentence for drug-manufacturing "shall not be subject to statutory provisions for suspended sentence, community work service, or probation."
On Dec. 5, Tremain Scott will appear for sentencing for killing Quincy M. Sanders in March during an armed confrontation between the two men in the 2500 block of Ridge Court.
"I shot the (expletive) in the head," an eyewitness testified he heard Scott say before picking up Sanders' gun and shooting him with it.
Amid concerns cited by Scott's defense attorney that he would be able to argue at trial that the shooting was in self-defense, prosecutors allowed him to plead guilty recently to the lesser charge of voluntary manslaughter. To the dismay of Sanders' family members, it cut Scott's potential sentence in half.
But assuming Scott and Fletcher have the same criminal-history background, even if Scott had been convicted of second-degree murder, Fletcher still would be facing more time for trying to grow mushrooms.
Room for improvement
Lawrence attorney John Solbach, who helped draft Kansas' sentencing guidelines 10 years ago as chairman of the House Judiciary Committee, admits the system isn't perfect and isn't always fair.
"The drug crimes were always problematic and very emotional," he said. "There isn't any legislator who wants to go back home and say, ?I voted to reduce sentences for possession or sale or manufacture of drugs.'"
The sentencing grid -- an actual sheet of paper with rows and columns -- combines a defendant's criminal history score with the severity level of the crime at hand. Each defendant falls into in a box that contains a range of months considered to be the presumed sentence.
There's one grid for nondrug offenses, and a separate grid for drug offenses.
People who fall into certain boxes are expected to get probation. People who fall into others are expected to get prison, and there's a border area in between in which it's up to a judge to decide.
These guidelines were intended to create consistency in sentencing statewide and solve racial disparities that showed people of color were more likely to be sent to prison. Before the grid took effect, judges would sentence someone to a broad range of years in prison -- say, six to 20 years -- and the actual release date would be determined through the parole process.
Today, the sentence is right there on paper. But along with consistency comes inflexibility.
"There are always unique crimes or situations that our more rigid system doesn't handle very equitably," said Rep. Tom Sloan, R-Lawrence.
One way to solve these problems, Solbach said, is through the 17-member Kansas Sentencing Commission, which was created to analyze the sentencing guidelines in detail, monitor prison populations, and make recommendations for change. Expert advice from the commission -- which includes judges, lawmakers, community members and attorneys -- helps take heat off politicians who don't want to appear soft on crime, Solbach said.
Commission member Jeff Goering, a Republican House member from Wichita, said he thought sentencing discrepancies similar to the one Fletcher is facing were common. Goering said he didn't like that the guidelines take away judges' discretion for dealing with criminals individually.
Another unpleasant fact of life for commissioners, he said, is that concern about overcrowding in the state's near-capacity prison system is one of the major factors driving criminal-justice policy. The recent drug-treatment bill -- which was recommended by the Sentencing Commission -- was in large part an effort to manage the size and cost of the prison population.
"Until we build a new prison in this state, I think you're always going to be looking at nonviolent offenses to tweak to free up bed space," he said.
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"Why is marijuana against the law? It grows naturally upon our planet. Doesn't the idea of making nature against the law seem to you a bit . . . unnatural?"
- Bill Hicks
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