Next week, California voters may decide to legalize the recreational use of marijuana in the state. And if Proposition 64 passes, California’s justice system will face a number of unexpected impacts.

But in many parts of the state, including Mendocino County along the northern coast, widespread marijuana cultivation and its side effects are already a fact of life.

Top Prosecutor Develops a ‘Restitution’ Plan in Mendocino

Back in 2011, the county's newly elected district attorney, David Eyster, found himself facing a huge backlog of marijuana cases. It’s not unusual for this small county of about 90,000 people to rack up more than 300 marijuana cases in a single year, ranging from smaller grows of less than 50 plants to massive grows that can involve misuse of public lands and environmental degradation.

Eyster found a unique and controversial way to start moving some of these cases through the courts. Under the authority of a California law that’s part of the state’s health and safety code, he began offering certain marijuana defendants misdemeanor plea deals if they paid what’s called "restitution" for the costs of seizing and destroying their pot.

After looking at law enforcement costs, Eyster came up with a formula: “$50 a plant, and it doesn’t matter if it’s a little plant or a big plant, we just keep it $50 a plant, or $500 a processed pound.”

But only first-time defendants, and those who aren’t causing environmental damage or growing on public lands, get the opportunity to take this deal.

“It's a person with a little medical marijuana need, but they have a huge greed,” he said. “And so there's a little bit of medical marijuana mixed in with it. But it's just so little compared to what they're doing that it can't be overlooked.”

The district attorney's office says it’s a way to distinguish between career criminals and those who may have misinterpreted the legal limits of medical marijuana cultivation and sale.

“The big emphasis is trying to be consistent,” Eyster said. “You know, if you talk about marijuana litigation prosecution in the state of California, the word consistent is not something that's often used.”

Now, about a third of all cases are settled through restitution. It has freed up resources in the DA's office and brought in resources to local law enforcement. The county sheriff’s department sees the lion’s share of this revenue, about $7.2 million to date.

Critics Call it the ‘Mendocino Shakedown’

Many in the county call the restitution program by another name: the "Mendocino Shakedown."

Heidi Larson is an attorney who prosecuted sex crimes in the Mendocino County DA's office for about 10 years and worked in the county public defender’s office for a year. She said that while the program is certainly innovative, it has some troubling aspects.

“The big question is: What about people who can't pay these numbers?” she said. “Are they being treated the same as people who can pay?”

Larson said she’s talked to people who told her they build restitution into their business plan, “and that’s when you’re dealing with massive growers, because they come in every scale.”

But, she said, on the other end of the scale are those who simply can’t afford to pay.

Mike Geniella in the DA’s office doesn’t buy this argument.

“We’ve never seen a poor marijuana grower in Mendocino County,” he said. “So the notion that someone is losing their home in debt -- no, it simply has not happened.”

But multiple sources told KQED that defendants have gone deep into debt due to restitution. And some people ended up paying, even though they insist they were legally growing medical marijuana. These sources didn’t want to go on the record because they’re worried they’d face retribution if they went public.

“People need to understand you’re not shielded at all,” Larson said. “It’s an affirmative defense. You can be arrested. You can go to the jail. You can be charged. You can end up having to go all the way through before the decision is made whether or not it truly is medicinal. And that’s going to cost some money.”

Eyster said before he brings charges, he does let marijuana defendants bring in any medical paperwork they might have.

“If you're legal, you walk away and we say have a good day," he said. "If you're not legal then, we tell you what your options are.”

But Sebastopol-based defense attorney Omar Figueroa, who specializes in medical marijuana, said part of the problem is that medical marijuana laws are still very gray. And local and state laws are still at odds with federal law.

“People are basically making a rational choice to buy a misdemeanor instead of suffer the potential of a felony conviction,” he said.

And if you don’t make that choice, the consequences can be severe.

Case of Richard Bolton

Richard Bolton, 34, is facing those consequences. The lifelong Mendocino resident owns a two-bedroom house tucked under the redwood trees in the town of Willits. He runs a logging and construction company, and in October he and his 20-year-old fiancee, Ashley Baldwin, welcomed a baby girl.

But their life will soon change. Bolton will be heading to jail for six months, starting in January.

One afternoon in October, the two walked around their backyard, checking on their raised garden beds of grapes, tomatoes and peppers, all starting to get a little moldy from the fall rains that have just begun.

But in 2014, the county’s marijuana eradication task force busted the place and found about 70 marijuana plants growing in these same beds. They also found 15 plants in the garage, around 20 pounds of dried pot, five guns and more than $100,000 cash in Bolton’s safe.

Bolton was arrested.

His lawyer approached him with the district attorney’s offer to pay around $20,000 in restitution and plead to a misdemeanor.

“I thought it was more extortion than anything,” Bolton said. “You know they want to take my money for something I didn't do, and then they want to get you for a felony crime, but they want to let you walk for a misdemeanor to pay him money.”  

Months before the raid, Bolton said, he’d leased the house to a parolee named James Horn. According to Bolton, Horn was growing marijuana without his knowledge.

Bolton opted not to take the deal.

Instead, he went to trial and got a hung jury. The district attorney then charged him with perjury in a connected civil case and moved to retry the criminal case. Bolton said at that point he was out of money to fight and was struggling to get partial custody of his 4-year-old son with a former partner.

He pleaded no contest to maintaining a property for unlawful sale of marijuana.

“In three years with good behavior, then I get the felony dropped to misdemeanor. That way I can still coach my children’s football teams and baseball, whatever, so that’s the reason I pled to it at that point.”

The judge postponed his sentence, so he could be home for the birth of his daughter. Beginning in January, he will serve six months in jail.

His fiancee's voice cracked as she said she doesn’t know how she’ll cope without him for that time. But then she got angry.

“I think it's bogus,” she said. "Just because he could have bought his way out of it.”

DA spokesman Geniella points out it was Bolton’s decision to pass on restitution.

“He chose to hire an attorney, pay $25,000 and go to trial. He did,” Geniella said. “He ended up with a hung jury in favor of conviction, and again on the morning of the second trial he entered a guilty plea. All those are Mr. Bolton's choices.”

Law Enforcement Priorities

Underlying the resentment many Mendocino residents have about restitution is the sense that enforcement of marijuana laws is arbitrary and unfair.

“We went in a helicopter ride on airport day a month ago and you can look out the window and you see crops all over town of marijuana,” Baldwin said. “And I don't see how they can charge one person and not get everybody, because everybody here is doing it.”

But the Mendocino County sheriff, Thomas Allman, said it’s not arbitrary at all.

He laid out his department’s five enforcement priorities:

•      Profiteering (medical marijuana is supposed to be nonprofit)
•      Public lands (growing in state or national parks)
•      Trespass grows (growing on property owned by someone else)
•      Water diversion (stealing water from streams or lakes)
•      Environmental damage (killing wildlife and disrupting ecosystems)

To get busted you need to meet one of the five, Allman said, but the last two are really the most important.

“If you really want to get a deputy sheriff interested in a commercial operation, you tell him or her that there was environmental degradation or illegal water diversion,” Allman said. And he said he’s tired of people flooding into his county from all over the world -- not to appreciate the scenery, but to take what they can from the land and then leave.

Allman said his department busts only 15 percent of the marijuana that they know about. He said he simply doesn’t have the resources to go after the other 85 percent. And he said his team often will eradicate a marijuana grow and not find anyone there to arrest.

“We certainly would like to arrest the investor but the amount of time an investigation like that would cost us would prevent us from doing other investigations,” he said.

The Future?

A county grand jury reviewed the program earlier this year. Its primary findings were that the program increased court efficiency and eased jail overcrowding. But it also recommended that the district attorney institute a public program to assist those who can’t pay restitution.

Eyster responded to the grand jury’s recommendation by reiterating that his office’s restitution process is sufficient to allow for defendants to claim and prove their poverty.

Ultimately, the grand jury recommended that the program continue.

But if voters legalize recreational marijuana in November, the restitution program in its current form could be gutted or at least significantly altered. Proposition 64 would make cultivation for first-time offenders an automatic misdemeanor. So, the DA could lose some of his prosecutorial leverage.

However, Mike Geniella said restitution has been so effective that he’s confident it can evolve, along with the new law.

“It’s a big plus for the defendants, our office and the courts,” he said.