Friday, August 12, 2016
Mendocino County DA responds to report on marijuana restitution program
Mendocino County District Attorney David Eyster has issued a response to a May grand jury report that stated the GJ intended to “determine the validity of concerns expressed by members of the public and certain public officials of the propriety of the marijuana program.”
Eyster began the marijuana restitution program in 2011, after being elected to his first term. Under state Health and Safety Code Section 11470.2, certain circumstances allow felony offenders of state and local marijuana laws to instead accept a misdemeanor charge in exchange for payments of law enforcement costs in enforcing marijuana laws.
Eyster, in his response, stated he intended to continue the program as-is, despite the grand jury’s recommendation that a payment program be implemented for those who are unable to pay restitution immediately. Currently, people are unable to participate in the DA’s program if payment can’t be made up front.
Eyster called the grand jury’s assessment that payment plans were once offered but are currently not, incorrect, and said they were never offered because they are not cost-effective, nor an effective use of resources.
“One defendant was allowed to make payments when a deputy prosecutor handling a case inadvertently authorized it,” he said.
The grand jury referenced alleged criticisms of the program, which some have apparently called a “pay for play,” to favor those in the illegal marijuana industry who can afford the thousands of dollars in fees, as opposed to those who cannot.
Since 2011, the grand jury said more than 500 defendants have participated in the program. The recidivism rate for those participating in the program is 10 percent as opposed to the overall recidivism rate of 40 percent for all convicted defendants in the county, the report stated.
The grand jury claimed the restitution program has brought in approximately $7.5 million as of March 2016. The funds are paid to the Sheriff’s Office; the DA’s Office doesn’t receive any of the funds.
Eyster, though, said there was under $7.1 million collected since program inception through April 2016, adding that the grand jury’s miscalculation was likely due to local non-county law enforcement agencies, like local police departments, receiving their own funds during the same period.
In citing several previous cases, Eyster referenced that the state Supreme Court has stated “the benefit to the defendant from a lessened punishment does not need elaboration; the benefit to the state lies in the savings in cost of trial, the increased efficiency of the procedure and the further flexibility of the criminal process.”
Grand jury findings
F1. The marijuana restitution program has proven effective in meeting its intended goals.
DA response: “The District Attorney agrees with this finding. Though extremely demanding on the District Attorney’s time, the program has exceeded original hopes and expectations in many regards.”
F2. Because the DA did not provide evidence to the grand jury of the existence of a program to assist indigent offenders, the grand jury was unable to reach a finding regarding such a program.
DA response: “The District Attorney disagrees with this finding because ‘evidence,’ as that word is commonly used in courts and all administrative evidentiary hearings, was presented to the grand jury. The evidence heard by the grand jury was testimony offered by the DA. In statements to the grand jury, the DA was forthright that he had in several cases considered financial declarations submitted by offenders or their attorneys, so he (the DA), could assess the viability of receiving restitution from a particular marijuana offender who was claiming poverty. This grand jury finding would have made more sense if it had written that the grand jury was interested in having access to documentary evidence that the DA did not have the resources and time to go mining for. The District Attorney also believes this finding by the grand jury to be in artful, at the very least, and contrary to long-standing legal precedent.”
Recommendations by grand jury
R1. The DA continue the marijuana restitution program as long as it is pertinent to state statute and county ordinance.
DA response: “The District Attorney appreciates this vote of confidence from such an august body. The District Attorney will continue his ongoing evaluation of all criminal and civil programs conducted through his office, including the 11470.2 restitution program, in order to ensure that he and his professional staff are meeting constitutional muster.”
R2. The District Attorney institute and demonstrate a publicly visible program to assist those who truly cannot afford to pay restitution.
DA response: “The District Attorney does not agree with this recommendation and will not be fixing that which has already been implemented and is not broken. As further comment, and as also noted in the response F2 above, the DA has no need to institute and/or demonstrate something that already exists.”
Full grand jury reports and responses are available online at http://www.co.mendocino.ca.us/grandjury/gj15-16.htm.
August 9, 2016
Ukiah Daily Journal
By Ukiah Daily Journal staff