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Get Out of Jail for a Fee 

Mendocino County's innovative and controversial marijuana program brings in millions

By the time locals went to the polls in 2014 to elect a new district attorney, they'd heard a lot about Humboldt County's famous pot industry. Candidates had debated strategies for going after the worst players, for protecting the patients who benefit from California's legal medical marijuana system, and for dealing with an ever-growing pile of pot cases in the office of the county's top law enforcer.

But not a single candidate had mentioned a successful, albeit controversial, program spearheaded by our neighbor to the south.

Since 2012, Mendocino County District Attorney David Eyster has managed a restitution program that has cleared the small office's backlog of criminal marijuana cases and netted the county millions of dollars in revenue. Detractors call it extortion, and fear that it's being applied unfairly. But the program hums along, and has kept hundreds of low-level marijuana offenders out of jail.

Eyster was elected district attorney of Mendocino County in 2010, after decades of work in the local legal system. In 2012, he devised the restitution program, based on a state health and safety code that reimburses law enforcement for the costs of cleaning up meth labs and pot grows.

According to a Los Angeles Times article, Eyster, who did not return calls seeking comment for this story, set restitution fees at $50 per plant and $500 per pound of processed pot seized. For example, someone caught growing 300 plants in the hills and charged with felony possession with intent to sell could pay $15,000 and plead to a misdemeanor — usually simple possession. But, adding another layer of controversy to the program, it asks that defendants waive an itemized accounting, and instead just agree that the restitution fee offered by Eyster is "reasonable."

The program has courted controversy. One Mendocino County judge was quoted in the LA Times calling it "extortion." Marijuana remains a charged issue in Mendocino County, as it does all over the North Coast, and some have perceived Eyster's program as being too easy on marijuana growers who are exploiting the area for profit.

In a 2011 interview with the Anderson Valley Advertiser, shortly after he took office, Eyster offered a relatively progressive stance on marijuana.

"The philosophical fight is over," he told the newspaper. "The voters have made medicinal marijuana the law. It is legally and morally wrong to prosecute patients who are trying to comply with the letter and spirit of the law. If I am going to direct the prosecution of anybody for marijuana, let it be the able-bodied, illegal profiteers and trespassers who trash our lands, kill wildlife, divert water resources and make parts of Mendocino County a dangerous place to live."

The restitution program has brought in nearly $3.8 million to the county since its implementation, and Eyster argues that he's also saved the county money by streamlining marijuana cases that used to bog down the court system and eat up valuable prosecutor hours. In the Willits News, Eyster estimated that marijuana cases typically take his office about seven months to resolve, down from the 15 months apiece prior to the program being implemented.

The total savings are undefinable, and they go beyond the county's administrative and staffing costs. University of California Hastings law professor David Levine says the program is a "reasonable" way to clear court dockets in counties like Mendocino, where marijuana isn't a high priority. Keeping people out of prison — whether they serve time in county jails or receive probation — is a way to save state taxpayers huge amounts of money, he says.

"It's very expensive to make people our guests in these state prisons," Levine says. With marijuana crimes a "low danger to society," he says, "it seems like a smart thing to do."

But critics say Eyster's program is a form of extortion, a way to line his department's pockets, and that it's inherently unfair. They see it as a system that favors the wealthy, allowing them to buy their way out of more serious charges.

Adding to the controversy is the county's asset forfeiture program, which has raked in nearly $5 million in assets in the last five years. Law enforcement agencies can seize money or goods — cars, homes, properties, etc. — that they suspect are the gains of, or were used to facilitate, crimes.

Asset forfeiture is a growing issue around the country because it burdens arrestees with proving money and goods were obtained legally, and police departments often can keep seized assets even when no criminal charges are filed. According to the LA Times, Eyster uses seized assets to bargain for plea deals in the restitution program, though he told the paper he won't accept seized cash as restitution payment.

"[Asset forfeiture] programs have proven quite lucrative," Levine says. And the practice has grown increasingly controversial, as people see "too much financial incentive for the police if they get to keep the property they take from the criminal defendants."

But, while revenues from asset forfeiture by law have to be spent on drug enforcement, the restitution payments Eyster collects from marijuana cases go directly into the county's general fund to be spent on anything from staffing Eyster's office to filling potholes.

Levine says Eyster's baseline restitution numbers — $50 per live plant, $500 per processed pound of marijuana seized — seem reasonable given the current market value of pot. The question, Levine says, is how equitably the restitution is applied. "Would the restitution really be tied to harm done, as opposed to being more punitive, and therefore lucrative?"

Eyster told the LA Times the program's consistency and eligibility restrictions prevent it from being inequitable. He personally oversees nearly every marijuana case, calculating a restitution based on the scale of a grow, a suspect's role in the operation and his or her intentions — was it an oversized medical cultivator or a for-profit operation sending pot out of state?

And the worst players, he says — people with certain criminal backgrounds, trespass growers, land-stripping mega-growers — don't qualify for the program. Neither do people who've been offered the deal previously, though Eyster's office says it's pretty rare to see people break their post-restitution probation.

Some people feel strongly enough against restitution that they refuse it on principle. In 2013, Kim LaValle of Laytonville became the first person to go to trial on a marijuana charge since Eyster instituted the restitution program. She had been arrested driving with eight pounds of marijuana near Hopland, and Eyster's office had charged her with transportation of marijuana for sale.

According to the Willits News, it was the first time Eyster, a seasoned trial attorney, had prosecuted a marijuana case. Most defendants up to that point had pleaded to misdemeanors under his program, and some, whom he deemed ineligible for the program, had pleaded to felonies that netted them jail time.

But LaValle's defense — that she was a medical provider — fell short. A jury convicted her and a judge sentenced her to serve 45 days in jail and three years probation. She's since appealed the ruling, and her case has been accepted for review by the California Supreme Court.

LeValle appears to be the exception. Since the program's inception, few people have chosen trial over the plea agreements.

And why would they, asks Santa Rosa defense attorney Mark Clausen, one of the program's fiercest critics. Clausen says Eyster's program casts too wide a net, threatening felony-level charges against people who wouldn't have been charged in the past; people with cursory roles in an operation or those who had a decent medical marijuana defense. It's allowed the DA to "gobble up" more people involved in the industry than it should, Clausen says. And given the option of paying $20,000 or so to an attorney like himself and taking their chances at trial, or paying a little bit more to the DA and walking away with a misdemeanor, the choice is a "no-brainer."

From 2012, when the restitution program began, through June of 2015, Mendocino County used it to collect $3.8 million from people caught in marijuana operations, including $2.1 million last year. From Eyster's election to the end of last year, 1,218 marijuana cases have been prosecuted through his office; 429 of those were handled through the restitution program. Defendants who have chosen restitution over trial have paid an average of $9,000 apiece to see their felonies reduced to misdemeanors.

In the years prior to Eyster's election, the DA's office staff had dwindled from 40 positions to 33-and-a-half positions filled — likely due to the recession that was squeezing local governments across the state. With the restitution program up and humming — the $2.1 million it brought in last year was almost half the DA's office's $4.4 million total operating budget — the office now staffs 41 full-time employees, including 15 deputy district attorneys. Humboldt County, with roughly one-and-a-half times the population of Mendocino, has 16 deputy district attorneys (though the office has 55 full time employees).

Mendocino County's windfall is Eyster's as well. Flush with a full staff, he was able to loan his assistant district attorney, Paul Sequeira, to Humboldt County for several months last year to try the murder case of Jason Warren. In February of 2015, he wrote a comprehensive letter to the county executive officer asking for a raise. In it, he touted his accomplishments, but spent more time comparing his salary to that of other similar-sized counties' DAs and other local elected and unelected officials.

Apparently, it was convincing. In December, the Mendocino County Board of Supervisors approved a 16-percent raise for Eyster, bumping his total annual salary from about $126,000 to about $140,000. (In 2013, Eyster received a $44,000 benefit package on top of his salary.) It's a substantial raise by any measure, but especially considering most other county employees, the Press Democrat noted, received only a 5-percent raise. (County employees took a 10-percent pay cut in 2010, so their salaries were still down from previous years.) "He's a valuable person," one Mendocino County supervisor was quoted as saying of Eyster. "He brings in millions."

Mendocino Sheriff Tom Allman also received a 10-percent raise in December. Allman's office, as the county's main law enforcement agency, is a crucial arm of Eyster's restitution program. Like Eyster, Allman has shown innovation when tackling Mendocino's marijuana issues. Most notably, he created the county's zip-tie program, which tracked medical growers' plants and collected fees. A federal crackdown shuttered the program after less than two years and the county eventually turned over program records in the face of federal grand jury subpoenas.

The feds also caught wind of Eyster's restitution program. A 2014 LA Times article says a federal grand jury subpoenaed records from the program as part of an investigation into county programs that get revenue from marijuana enforcement, but it's unclear if anything ever came of that. The U.S. Attorney's Office of Northern California did not respond to a request for comment.

The most notable challenge to Eyster's program comes from Clausen, who has sued to stop it. Clausen says he "jumped in early with both feet" to curb the program, both on the criminal and civil side of the court system.

He defended several clients who didn't want to pay the restitution fines while also forfeiting seized cash. The court denied various motions Clausen filed to have the case thrown out, he says, and his clients eventually took new counsel and "wisely" paid restitution in exchange for misdemeanors. "They went back to growing, just like everyone else," he says.

Clausen's also filed a civil case on behalf of a former defendant, who paid into the restitution program, saying the county should stop the restitution deals. In his filing, Clausen wrote "the program constitutes an illegal criminal enterprise," adding that the changes to the state codes the program is based off of invalidate it.

Mendocino County judges mostly wanted nothing to do with his lawsuit, Clausen says — "[they] looked at me like I'm stone cold crazy; who knows, maybe I am" — but one civil judge heard the case and expressed some concern about the program. That court decided it wouldn't be the one to try and stop it though, Clausen explains, so it's now in the state court of appeals. He expects it will take years before the case is resolved.

While Eyster's program has been a financial boon for the county — it's conservatively projected to bring in another $1.5 million in revenue this year — it's unclear whether or not other jurisdictions have considered it.

Humboldt County DA Maggie Fleming praised the program and its ability to move marijuana cases quickly through the court system. She also said it could collect funds vital to cleaning up the environmental impacts of large grows.

With state medical marijuana reforms in place and many details to be worked out, 2016 could prove to be a watershed year for marijuana in California, and in Humboldt County, where supervisors have been scrambling to put together a cultivation ordinance in recent months. There's also a reasonable chance voters will legalize recreational use this year, with several major ballot initiative efforts underway.

"Right now we are in a period of significant change," Fleming said. "I don't think it's a good time for us to introduce a new program."

What all this means for Eyster's program, and the office relying on its revenue, remains unclear.

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About The Author

Grant Scott-Goforth

Grant Scott-Goforth has been an assistant editor and staff writer for The Journal since 2013.

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