When a Crime Isn't a Crime

November 2005

Allysan Isaac has something to be angry about. At 24, she pleaded guilty to possession of an anti-anxiety drug. The police told the District Attorney it was a controlled substance. He took their word for it. Allysan's defense lawyer did the same thing. Allysan spent almost a year in county jail in a work release program. While in jail, she gave an inmate half of a tablet of another drug that had been prescribed for her. Busted, she faced the judge again, this time with a different defense lawyer who did his homework. Her first offense, possession of the anti-anxiety drug, wasn't a crime at all, because contrary to what the police said, it wasn't a controlled substance.

"You were incarcerated for a case that was not a crime," said Mesa County District Judge Brian Flynn, who presided over the case. Flynn, the prosecutor and Isaac's defense attorney were unaware last year that the offense she was charged with was not a violation of the law. No one had noticed that a prescription drug found in Isaac's possession, an anti-anxiety medication called Buspirone, is not a controlled substance.

She was placed on probation for the second offense of sharing her pill with another inmate. The Judge, the prosecutor and the probation department agreed her first offense wasn't an offense at all:

District Attorney Pete Hautzinger said he had "no idea" why Isaac had been charged with and convicted of something that wasn't a crime. The defense attorney who represented Isaac in the first case was also baffled. "I don't have an answer," assistant public defender John Burkey said. "Nobody caught it. The police were saying it was a controlled substance."

Lesson learned: Cops are not lawyers. The District Attorney had a duty to verify the officer's report before charging a crime. The defense lawyer should have checked the statute. Bottom line: Allysan lost a year of freedom. Both the DA's office and the Public Defender's office ought to compensate her. Will they? Don't bet on it.

Tags: