Crowded Jails Put Squeeze on Proper Justice

When H. Ronald Domnitz became a municipal judge in San Diego three years ago, he could barely believe what was happening in the county’s courts.

Criminals he sentenced to short terms of incarceration never saw the inside of the county jail. Suspects he ordered held on bails as high as $2,000 or $3,000 went free, even if they didn’t post bond. If police happened to catch a scofflaw who failed to appear in court on a pending charge, they released him again on his promise to show up the next time.

“I was flabbergasted,� recalled Domnitz, who left a labor and family law practice to join the bench in January, 1983. “I was appalled.�

Experience hasn’t lessened Domnitz’s indignation. He and other judges throughout San Diego County say the overcrowding of the county’s jails has locked the criminal justice system in a straitjacket.

Especially in Municipal Court, where the proceedings focus on defendants facing lesser charges--the first defendants to be squeezed out of county jails under the triage prompted by crowding--judges say they are hindered in their ability to protect the public. Sometimes, they say, they are almost powerless to correct criminal behavior or mete out the punishment that might repay society for wrongs.

“The system isn’t working the way it should when you have a judge who has the tool of incarceration and knows it isn’t going to work, or it isn’t going to be there available to him, or if it is available to him, it will only be for a very short period of time,� said El Cajon Municipal Judge Victor Bianchini.

Even many judges who handle more serious felony cases say their decisions about pretrial release of defendants and post-conviction sentencing are colored by the knowledge that the county’s jails are perpetually full.

“We’re aware of it, and somewhere in your unconscious mind I’m sure that’s a value,� said Superior Court Judge Richard Huffman, a former county prosecutor.

Judges insist that jail crowding has not forced them to release potentially dangerous accused felons pending trial. Felony sentences, they say, still are rendered with an eye, first, to appropriate punishment--not to the lines forming at the jailhouse door.

But days do get shaved from the end of county jail terms, judges acknowledge, and criminals are given probation or non-custody alternative sentences in cases that judges say would not merit such treatment if there were more room in the jails.

Some criminologists and defense attorneys say the crowding has forced a progressive rethinking of corrections policy. But judges, accountable in elections to a public that seems to favor a tough approach to crime, say it simply has stolen the latitude they need to do their jobs.

“Because the facilities are so inadequate, people who should be going to jail aren’t,� said Presiding Judge Frederic Link of the San Diego Municipal Court.

On an average day, San Diego County’s jails house 2,600 inmates--about half again as many as they were built to hold. The Central Jail in downtown San Diego is under a court order to limit its population, and the four jails built by the county since 1977 to relieve the overcrowding have been full virtually from the day they opened.

The county Board of Supervisors is exploring how to pay for a new, 500-bed jail and a 350-bed honor camp. But in the meantime, only a patchwork of compromises keeps the jails from bursting at their seams.

Police, the sheriff, prosecutors and the courts have resorted to a bewildering scheme of early release mechanisms, creative sentences, judicial concessions--and, at times, a collective winking at criminality--to keep the criminal justice system afloat.

But judges say the shortcuts are taken at the cost of the system’s credibility.

Knowing they are unlikely to end up in jail, lesser offenders in San Diego County--drunk drivers, prostitutes, illegal drug users and others--are growing contemptuous of authority, judges say.

And it is not just traditional jail space that is in painfully short supply, the judges add.

Defendants placed on probation with the requirement that they complete treatment for drug or alcohol abuse must wait as long as three or four months for an opening in a rehabilitation program.

The county’s work furlough center, where offenders work days and pay for their incarceration nights and weekends, has a waiting list of three months, too--prompting entrepreneurs to establish private centers in hopes of profitably absorbing the county’s overflow.

“It’s a frustration, when you see people--they’re human beings, and they’re savable human beings--and you don’t have the resources to do anything about it,� Superior Court Judge Michael Greer said.

Nowhere has jail overcrowding chiseled a wider gap between the intent of the public and the performance of San Diego County’s courts than in the case of drunk driving.

In 1980, the California Legislature, spurred by a grass-roots campaign against drunk driving, passed a law mandating that anyone convicted of a misdemeanor driving-under-the-influence charge serve 48 hours in county jail.

Nonetheless, since April, 1983, misdemeanor drunk drivers in San Diego County haven’t gone to jail. That’s when the Sheriff’s Department, which operates the county’s jails, seized on an attorney general’s opinion allowing it to substitute 10 hours of public service work for each day of jail time.

Instead of losing a weekend of freedom, said Assistant Sheriff Cliff Powell, convicted drunk drivers wash the sheriff’s patrol cars, work at the sheriff’s service stations, clean sumps in the sheriff’s loading dock, paint county buildings--in short, he said, do “a lot of things that wouldn’t get done if it weren’t for these people.�

“They’re doing exactly what the public believes a lot of inmates should be doing,� Powell said. “We don’t even give them a lunch.�

But Bianchini and other judges, while acknowledging the sheriff’s lack of options, say the public is not obtaining the results its representatives intended.

“When you have the kind of overcrowding we have, the 48 hours that the Legislature’s passed means nothing,� Bianchini said.

Judges say their inability to send drunk drivers and other offenders to jail for short periods of “shock time� robs the criminal justice system of one of its most effective tools.

Those brief, attention-getting terms have fallen victim to an array of expedients that state law provides for overburdened county jails.

Consider a defendant sentenced for a misdemeanor to 15 days in the custody of the San Diego County Sheriff’s Department--the sort of sentence some judges say they would like to be able to impose on drunk drivers or first-time drug offenders.

First, virtually everyone in the sheriff’s custody is granted a one-third reduction in his sentence for good behavior and work in custody, Powell said. That cuts the hypothetical 15-day term to 10 days.

Then, the defendant garners the benefits of something called “the five-day kick.� In overloaded jails--including San Diego County’s--state law provides that people sentenced to 10 days or longer can have five days chopped off their terms by the sheriff to help alleviate crowding. That leaves the hypothetical term at five days.

Finally, the defendant comes under the provisions of “the 15-day rule,� by which the Sheriff’s Department can--and does--place anyone sentenced to 15 or fewer days in its custody on work release, rather than locking them in jail.

So, almost assuredly, Powell said, the hypothetical defendant sentenced to 15 days in a San Diego County jail will spend no more than five days on work release.

And that, some judges believe, won’t teach a first- or second-time offender or minor league white-collar criminal the lessons that a few days in jail would.

“I would hope that having to sit in jail is still a deterrent to some people,� Link said. “But how can it be a deterrent if they don’t go to jail?�

The ‘New Math’

There are no statistics on how many criminals might go to jail for short terms if there was more room in the county’s corrections system. But it is known that the Sheriff’s Department assigned more than 4,800 defendants to the work release program last year--most of them drunk drivers whom judges say they would like to see jailed, if even briefly, as the Legislature mandated.

Occasionally, judges acknowledge, they inflate sentences to increase the chances that a defendant actually will go to jail. But they admit to some discomfort in engaging in what one judge called “new math.�

“I would like to be in a situation where I could say, ‘I want that man to spend one day in custody, two days in custody or a week in jail’--shock time, which would have a deterrent effect,� Link said. “Now, that kind of situation is taken away from the sentencing process.�

Restoring the “shock-time option� is many judges’ top priority in any county program of jail construction. Minimum-security detention centers for offenders unlikely to attempt escape or be violent could revive the tool of incarceration at a relatively low cost, they contend.

In the meantime, Link worries that some of his colleagues, despite the court’s educational efforts, don’t know how often their intent in sentencing is being stymied by jail overcrowding.

“They’re giving somebody two weeks in jail, three weeks, and I don’t think they understand that a lot of these people aren’t doing jail time,� he said.

Bail-setting practices are bound just as severely as sentencing decisions, judges say, by the need to limit the numbers of prisoners locked in the county’s jails.

“There are many more people released now (before trial) than there were 10 or 12 years ago because of the space problem,� said San Diego Municipal Judge Robert Cooney. According to several judges, many more suspects in non-violent crimes and property crimes are freed before trial than in the past.

By law, Cooney noted, judges look at two key considerations in determining whether to release a defendant pending trial--the likelihood that the defendant will show up in court and the threat he poses to public safety.

But in San Diego County, he said, there is a third issue considered in releasing defendants from jail: “If we’re limited as to who we can keep in there--and (Sheriff) John Duffy is limited by the lawsuit--then why should we make his life more difficult?�

Freed Without Bond

Even defendants whom judges intend to keep behind bars--or at least beholden to the court--by placing them on bail, sometimes are freed without posting a penny’s bond if the county jails are sufficiently overloaded. State law allows the Sheriff’s Department to relieve crowding by releasing defendants who have failed to post bond but pose the least likely danger if freed--generally those with the lowest bails.

Jail officials consider the releases “repugnant� but necessary, Powell said. Judge Domnitz says they make the bail system “a joke� at the misdemeanor level.

Link, meanwhile, sighs that the release system is yet another reason for judges to engage in creative mathematics that distort the workings of criminal justice.

“I have to overinflate the amount of bail in order to ensure that a defendant will be held,� Link said. “If it should be between $250 and $600 or $700 normally, you have to inflate it over $1,000 in order for the sheriff to accept that person and place him in custody.�

The net effect of overcrowding, he said, is that crimes that used to land an offender in a San Diego County jail before trial--including drunken driving and being under the influence in public of heroin, cocaine or PCP--don’t anymore.

“That’s a travesty of justice,� Link said. “And that’s a direct result of there being no place at the inn.�

There’s a more insidious consequence of the shortage of jail space in San Diego County, some judges say--a breakdown in respect for the criminal justice system.

With jail space allocated almost exclusively to those accused or convicted of the most serious crimes, judges say misdemeanor offenders often get processed through the system without confronting the consequences of their actions.

“Arrest is not a deterrent anymore on certain crimes,� said Link. “If a person is arrested several times, they start to understand how a system works. And if they have any sense at all, they understand if they commit certain crimes, they’re not going to get put in jail.�

Judges list public drunks, illegal drug users and prostitutes among the offenders who feel comfortable thumbing their noses at the courts.

Their deepest exasperation, though, is reserved for the way San Diego County treats defendants who fail to appear on criminal charges.

More than half of the 320,000 outstanding arrest warrants logged in the computers of the San Diego County Marshal are for failure to appear, according to Assistant Marshal Les Conner. In November alone, in Traffic Court alone, nearly 5,000 people failed to appear in court as ordered.

Judges say the huge numbers stem, in part, from the fact that the county not only does nothing to track down the miscreants, but--should police happen to pick them up on unrelated charges--frees them on their promise to appear the next time they’re needed in court.

The promises often are empty, according to Domnitz. “If you don’t keep people in jail who fail to appear,� he said, “they fail to appear again.�

Powell says the Sheriff’s Department has no choice but to let them go. “Certainly it’s going to breed contempt, because the individual is going to wonder about our game plan,� he said.

But, Powell added, “If the (jail) population gets filled with misdemeanor failures-to-appear, we have to tell somebody (they) can’t put a felon in our jail because we’ve exceeded our court-ordered cap.�

It’s the uncomfortable kind of priority-setting, according to Domnitz, that too often robs San Diego County’s judges of the authority their position ought to command.

“I haven’t heard anybody laugh at me,� he said. “But they don’t have to.�