The “Mendocino Model,” created three years ago by District Attorney David Eyster, is an innovative program that lets felony marijuana charges be reduced to misdemeanors in exchange for a pile of money from the accused.
Critics, who include Mendocino County Superior Court Judge Clay Brennan, call it the “Mendo Shakedown.”
“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,” Brennan said a year ago, according to the Santa Rosa Press Democrat.
It doesn’t look that way to Mendocino County Supervisor John McCowen, who calls it “brilliant.”
The brilliance of the program is likely to get a bit more scrutiny soon.
A federal grand jury has asked the D.A. for information on the program, which has brought in $3.7 million in “restitution” from around 350 defendants since the D.A. rolled it out in 2011. And a lawsuit was filed this week in Superior Court that alleges the program is “not simply unlawful, but criminal.”
The suit was filed by Santa Rosa attorney Mark Clausen, who wrote, “The program constitutes an illegal criminal enterprise.” The lawsuit also names California Attorney General Kamala Harris as a defendant because she “has a clear ministerial duty to take appropriate action to terminate the program.”
In response, D.A. spokesman Mike Geniella emailed the Press Democrat, “We have no comment on a lawsuit citing the wrong state code, and filed by a twice suspended lawyer.”
Ouch. Clausen has, indeed, been suspended more than once since 2006 for not paying his State Bar dues and then continuing to work while on suspension. He is in good standing with the Bar now.
Eyster started the program after taking over an office with a huge backlog of felony marijuana cases. The D.A. decided to employ a section of the California health and safety code generally used to reimburse authorities for having to clean up meth labs and big pot grows.
He offered pot growers a deal. Jotting calculations on the backs of case files, Eyster would reduce felony charges to misdemeanor probation if defendants agreed to pay $50 per plant and $500 per pound of processed pot they got caught with. Although the law specifies that restitution should be for actual costs incurred by authorities, defendants sign off on an agreement that the cost is “reasonable” and everyone calls it a day.
A separate civil forfeiture action of ill-gotten gain may also be part of a “grand resolution.” Asset forfeitures outstrip the restitutions. While the investigating agencies keep the latter, the former is split between the state, the district attorney’s office and local law enforcement. Asset forfeiture doubled in 2013, to $4.4 million, over the previous year.
Eyster’s program has eliminated the backlog of cases, reduced the wait time for cases to be disposed of from 15 months to three and put the district attorney’s office in the black.
Even those critical of the program acknowledge that it has streamlined the system and brought in revenues. But that is what troubles them about it. It favors wealthier perps who can buy their way out of trouble and encourages unequal treatment of people accused of the same crime.
“It seems like it's extortion of defendants and it seems like it's just buying a misdemeanor and I can't abide by that,” Judge Brennan said last year at a restitution hearing in his Fort Bragg courtroom.
But he won’t probably have much to do with the program in the future. Eyster now takes all plea agreements to the main courthouse in Ukiah.
“I'm not going to deal with a judge who doesn't know what he's doing,” Eyster told the Santa Rosa newspaper.