A unique Mendocino County program aimed at reducing court backlogs by offering marijuana defendants lesser criminal charges in exchange for sizable restitution payments is at the center of a growing debate over its fairness and legality.
The program has piqued the interest of a federal grand jury, which is investigating the $3.7 million in payments generated from defendants to local law enforcement agencies since District Attorney David Eyster created the program soon after taking office in 2011, according to a grand jury subpoena recently leaked to The Press Democrat.
Critics say the program, which some dub the "Mendo Shakedown," looks like extortion and that it creates the appearance of an unequal justice system.
"To put it bluntly, it looks like a criminal defendant charged with serious conduct can simply buy a misdemeanor disposition if he gets caught and has the money set aside to cover for that contingency," Mendocino County Judge Clay Brennan said last year during a Fort Bragg court hearing on one of the program's plea agreements.
Others with concerns about the program include attorneys, law enforcement officers and medical marijuana advocates.
Supporters contend the program is a creative and successful way to reduce the logjam of marijuana cases caused by confusing and conflicting marijuana laws while compensating police agencies for costs associated with enforcing those laws.
"I think the way the district attorney has utilized the 11470 program is brilliant," said Mendocino County Supervisor John McCowen, referencing state Health and Safety Code Section 11470.2, the program's official name, although it is significantly different than the original code section. Defense attorneys, a retired state senator and the county's sheriff are among the program's defenders.
Eyster is the only district attorney in California known to be operating such a program, which he contends is allowed within state law.
He said he created the program by applying welfare law to the Health and Safety Code, which was intended to provide funds to clean up environmental degradation and toxic chemicals left behind by methamphetamine and marijuana operations, according to state legislative analyses of the bill.
In doing so, he made several changes that critics say are questionable at best. They include requiring payments before, rather than after convictions; eliminating a requirement to calculate actual costs created by defendants' legal indiscretions; and allowing defendants to plead to lesser criminal charges after they pay restitution fees that have been as high as $100,000.
Eyster said his program is working well. It has reduced the time it takes for marijuana cases to be resolved in Mendocino County to three months from 15, according to the District Attorney's Office. Some 350 people have taken plea agreements under the program, the office reported.
Even critics agree it has done its intended job of relieving court congestion.
Under Eyster's program, defendants pay $50 for each marijuana plant illegally in their possession, regardless of size, and $500 per pound of processed pot, typically in exchange for a misdemeanor guilty plea of possession of more than an ounce of marijuana, Eyster said.
Defendants are also subject
to having money and property seized under asset-forfeiture laws.
In avoiding felony convictions, those defendants are able to keep their guns.
Some of the people arrested with particularly large amounts of marijuana — more than 2,000 pounds in one case — have pleaded guilty under the program to a felony charge, but the felony is usually a "wobbler" that can be reduced to a misdemeanor following a successful probationary period, Eyster said. That charge also allows defendants to serve their sentences in the local jail, rather than prison. In two large cases, those sentences were suspended, according to court records.
Those who qualify for a misdemeanor but who can't pay may end up with felonies.
Mendocino County Supervisor John Pinches' daughter, Angela Pinches, reportedly had about 100 mostly small marijuana plants when she was arrested in 2011. Unable to raise the restitution money, she accepted a plea agreement to a charge of maintaining a place where marijuana is stored or manufactured — the same "wobbler" offered to Matthew Ryan Anderson, a former Willits man who had more than 2,000 pounds of pot and who paid $100,000 under the restitution program, according to court and police reports. Both had their jail sentences suspended.
Those who stay out of trouble for a few years can petition to have their misdemeanor charges wiped from their criminal records.
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