Pubdate: Wed, 10 Aug 2016
Source: Ukiah Daily Journal, The (CA)
Copyright: 2016 The Ukiah Daily Journal
Contact: http://www.ukiahdailyjournal.com/feedback
Website: http://www.ukiahdailyjournal.com/
Details: http://www.mapinc.org/media/581

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."

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."

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.

- - Ukiah Daily Journal staff
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MAP posted-by: Jay Bergstrom