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May 26, 2014

California DA tries to make sure marijuana crime does not pay by making the criminals pay for reduced charges

La-me-g-mendocino-potwebThe Los Angeles Times has this fascinting new article on a fascinting drug war innovation being utilized by a local districy attorney in California.  The article is headlined "Mendocino County D.A. takes a new approach to marijuana cases," and here are excerpts: 

When David Eyster took over as Mendocino County district attorney, felony marijuana prosecutions were overwhelming his staff and straining the public coffers.

With hundreds of cases active at any one time, taking an average 15 months to resolve, there were few victories to show for all the effort. "The system hadn't broken yet," Eyster said, "but it was dangerously close."

That was a little over three years ago. These days marijuana cases clear in about three months and the Sheriff's Department is flush with cash, thanks to what some are calling "the Mendocino model." To others, it's the Mendocino shakedown.

The transformation began when Eyster dusted off a section of the California health and safety code, intended to reimburse police for the cost of cleaning up meth labs and pot grows, and retooled it for a modern Mendocino County. In exchange for paying restitution, which Eyster sets at $50 per plant and $500 per pound of processed pot seized, eligible suspects can plead to a misdemeanor and get probation. (The law says restitution is reimbursement for actual enforcement costs, but defendants waive an itemized accounting and state the amount owed is "reasonable.")

The relinquishing of allegedly ill-gotten gains seized in separate civil forfeiture actions — cash, trucks and the occasional tractor — also might be part of the deal offered under Eyster's "global resolutions."

The restitution program is available only to those without troublesome criminal backgrounds who have not wildly overstepped California's somewhat gray laws on medical marijuana. Those who trespass, grow on public lands or degrade the environment need not apply.

Eyster said it's a complex calculation that he jots out himself, by hand, on the back of each case file. The size of a grow is not necessarily the deciding factor: In one current case, the defendants have records indicating they are supplying 1,500 medical users, Eyster said. Another case involved just four pounds of processed marijuana, but evidence indicated the defendant was selling for profit. Participants must agree to random searches while on probation, comply with medical marijuana laws and grow only for personal use.

Restitution funds, which have topped $3.7 million since early 2011, go directly to the investigating agencies. Asset forfeitures — the $4.4 million in cash and goods seized in 2013 was nearly double the previous year — are shared by the state, the district attorney's office and local law enforcement.

Among those who have criticized the program is Mendocino County Superior Court Judge Clay Brennan, who during a restitution hearing last year for a man with an 800-plant grow blasted it as "extortion of defendants."

A federal grand jury investigating county programs that derive revenue from marijuana enforcement has subpoenaed accounting records on the restitution program, Eyster confirmed. The reason is unclear, as the U.S. attorney's office declined to comment on the probe.

Legal analysts also have raised concerns about the potential for unequal treatment of defendants and the incentive for officers to focus on lucrative targets at the expense of those more menacing to public safety....

Eyster teamed with Assemblyman Tom Ammiano (D-San Francisco) in 2011 to try to make pot cultivation a "wobbler," prosecuted as either a felony or misdemeanor. The effort failed, but he had devised another way to thin the caseload.

He drew on past experience with welfare fraud, where considering restitution before making a filing decision was routine. Convinced that not all defendants were created equal — the mastermind behind a for-profit grow is more culpable than hired trimmers — he decided to evaluate each case, consider potentially exculpatory evidence and cut deals as he saw fit.

He offers defendants guidance on how to stay within the law, and said paying restitution "shows a step toward rehabilitation." "A month doesn't go by when someone doesn't say: 'Thank you for handling it this way,'" Eyster said.

Since he took office, 357 defendants have decided to pay restitution. About 20 of those violated their probation, resulting in 180-day jail stints and new charges. (On a second round, a straight misdemeanor charge is off the table.)

Eyster never accepts seized cash as payment of restitution, but his approach does throw such assets into the bargaining mix. It is unclear how many probationers paid restitution and forfeited seized cash or goods, but Eyster conceded the practice is common. "One hundred percent of the time, the defense wants to do a global resolution," he said. "It's saving a lot of time and costs."...

Defense attorney Keith Faulder, who practices in Mendocino County, is circumspect when discussing Eyster's program.  The district attorney, Faulder said, is "an innovator" who he believes is "operating in good faith when it comes to settling marijuana cases." However, Faulder said, Eyster "has a real policy of settling cases for civil forfeiture ... I think it gets a lot of dolphin with the tuna." That program has exploded in recent years, with law enforcement officials attributing the increased seizures to a pot trade that permeates the county....

Mendocino County Sheriff Tom Allman said his deputies do not have the time or inclination to police for profit: "If I wanted to use this as a business plan, I'd have 12 people on my eradication team," he said.  He has two.  But he credits restitution and forfeitures for a sheriff's budget that is $600,000 in the black, and said he has also been able to expand a resident deputy program and purchase a new fleet of cars.

Despite the criticism, Eyster said he was confident in the legality and effectiveness of his approach. He said that he had offered Melinda Haag, U.S. attorney for the Northern District, "first dibs on the prosecution of all marijuana cases in Mendocino County" but that she declined.  So "they should please leave us alone and let local enforcement tackle our own marijuana problems."

Regular readers should not be at all surprised that I am inclined to praise Mendocino County DA for engineering a seemingly more efficient and perhaps more effective way to wage the modern drug war. Indeed, given the muddled mess that is both California's medical marijuana laws and the opaque federal enforcement of prohibition in that state, this "Mendocino model" for modern marijuana enforcement for lower-level marijuana cases strikes me as a very wise way to use prosecutorial discretion and triage prosecutorial resources.

I would like to believe that the federal grand jury investigating the "Mendocino model" is focused on seeing if a local success story can be turned into a national program. But I fear that the feds are looking into what DA Eyster is doing because they fear even the prospect of somebody inventing any better drug war mousetraps.

Finally, though I suppose I should be concerned about the potential for prosecutors extorting criminal defendants in this setting, this form of extortion troubles me much less that when prosecutors demand that defendants give up various rights to avoid a crazy-long mandatory prison sentences in traditional plea bargaining. When DA Eyster seeks money from marijuana defendants as part of the plea process, it seems he is only seeking to have them relinquish what were likely ill-gotten gains (much of which might end up going to defense attorneys' pockets without such a deal available); when other prosecutors seek pleas and cooperation from other defendants facing extreme prison terms, these prosecutors are demanding that defendants relinquish constitutional and statutory rights created specifically to limit and check the power of government officials.

Cross-posted at Marijuana Law, Policy and Reform

May 26, 2014 at 01:56 PM | Permalink

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Comments

so another state agent using fraud and blackmail to steal from it's citizens.

I'd said I was surprised but surprise at our criminal government died in my decades ago.

Now it's past time they did the same.

Posted by: rodsmith | May 26, 2014 2:54:35 PM

When the discussion of using court costs to finance the criminal justice system, I was honestly agnostic on the issue, but this case is pushing me towards opposing it. To me, this is one step above Mexican police raiding a drug cartel and turning around and selling the drugs themselves. Any system that creates financial incentives to increase the war on drugs should be discouraged. If this level of criminalization were popular, this wouldn't be an issue. People would support financing this police activity through the general revenue of the state. It's only because it's unpopular that no one wants to pay for it and they have to resort to self-financing schemes. But self-financing removes democratic accountability because people will never have to pay attention to the costs.

To me, this is the archetypal example of pushing people into giving up their rights at trial. They threaten the choice of a long sentence or a monetary penalty. Who in their right minds would turn that down (unless they're a poor defendant, which is another problem the law has). Given California's opaque drug laws, I don't think it's implausible that there are sellers who are lawfully operating under state law but don't want to chance making that argument and getting jail time when they can instead pay a fine and move on. I think all the same problems exist here as they do elsewhere, it just manifests in a more palatable form.

Posted by: Erik M | May 27, 2014 8:38:13 AM

What part of Mexico is Mendocino located?

Posted by: Liberty1st | May 27, 2014 9:42:02 AM

How does this differ from the civil forfeiture that is imposed prior to conviction and is not removed when charges are dropped?

Posted by: beth | May 27, 2014 2:39:49 PM

No quid pro quo in exchange for a guilty plea and no hearing to determine if the money is at all traceable. In fact, no hearing at all to determine if the money demanded equates to anything related to the proceeds of a crime.

Posted by: Erik M | May 27, 2014 9:34:02 PM

The "model" is neither innovative nor laudable as any sort of viable alternative. Instead, it's common as dirt and prone to abuse. Here's a recent Texas case showing where that "model" inevitably winds up: http://gritsforbreakfast.blogspot.com/2014/05/of-kingpins-pirates-and-privateers.html

Posted by: Gritsforbreakfast | May 28, 2014 6:56:43 AM

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