Sheriff Told to Cut Population of Jails : Judge Says 1980 Court Order on Limit More Important Than State Legal Opinion

A Superior Court judge on Tuesday ordered San Diego County Sheriff John Duffy to keep no more than 750 inmates in the County Jail downtown, even if that means ignoring a recent attorney general’s opinion on the release of certain misdemeanor suspects.

Judge James A. Malkus said a standing court order limiting the population of the downtown jail is more important than the advisory opinion issued in June by California Atty. Gen. John Van de Kamp.

“There is a court order that takes precedence over the attorney general’s opinion, and that order should be followed,” Malkus said.

Van de Kamp’s opinion said local police agencies should no longer release without bail people arrested on outstanding misdemeanor warrants, a practice used in many counties to relieve pressure on overcrowded jails.

When Duffy, in response to the June opinion, ordered that those arrestees be kept behind bars until they posted bail or appeared before a judge, the population of the already overcrowded jails swelled another 10%, most of the new inmates being held downtown.

The downtown jail held 1,211 inmates Tuesday, and the six county jails combined held 3,456, more than twice the number for which they were designed.

At the hearing Tuesday, attorney Alex Landon argued that Duffy was under no legal obligation to follow the attorney general’s opinion because the opinion was only advisory.

San Diego, in fact, is the only urban county in the state to implement Van de Kamp’s opinion as policy. Several other counties, including San Francisco, Santa Clara and Contra Costa, either ignored the opinion or are still weighing their response.

Landon noted that Superior Court Judge James L. Focht found in 1980 that the 1,156 average daily population of the downtown jail at that time represented cruel and unusual punishment for the inmates kept there. Focht ordered the sheriff to stop accepting misdemeanor suspects whenever the jail held 750 people. After several delays, his order was implemented in June, 1984.

Duffy, Landon said, should have cited Focht’s order as justification for ignoring Van de Kamp’s opinion.

“When that facility reached 750, the sheriff had at that point the ability to say to any law enforcement agent who brought in a person for a misdemeanor, ‘I’m sorry, but we have no room in this facility. We’re under court order. You can take the individual elsewhere, but we can’t take them here,’ ” Landon said.

Deputy County Counsel Anthony Albers, representing Duffy and the county, did not differ with Landon’s assessment. Albers, in fact, suggested that Malkus require the sheriff to cite and release misdemeanor suspects held on warrants if such a tactic is needed to keep the jail in compliance with the earlier order.

Albers, however, did not say in court that he disagreed with Van de Kamp’s opinion, and he refused to discuss the opinion with reporters afterward.

Assistant Sheriff Clifford Powell, who runs the jails, said he felt more comfortable ignoring Van de Kamp’s opinion, with which he agrees, now that Malkus has ordered him to do so. Powell had recommended following Van de Kamp’s opinion for fear that the county would be liable for damage caused by any suspect ordered held by a judge and then released without that judge’s permission.

“This puts it in a whole different arena,” Powell said.

Powell told Malkus that it may take several days to trim the jail’s population to 750, even though the judge’s order will be implemented immediately.

In a separate matter, Malkus gave the county permission to hold as many as 1,050 inmates in the downtown jail for a year beginning next August. Malkus said the exception to the population cap is needed to accommodate inmates moved out of the County Jail in Vista while it is expanded.

The county had asked that the cap of 750 be increased to 1,150, but Malkus cut that request by 100. He said he agreed with Landon that the county may not be doing all it can to keep low-level misdemeanor suspects out of jail. Malkus also suggested that the county build two additional dormitories at the Descanso jail camp, even if it has to use portable toilets for the inmates.

The county Board of Supervisors, meanwhile, voted unanimously Tuesday to waive board policies on competitive bidding and minority contracting in order to speed up construction of two dormitories at Descanso.

Instead of a full competitive bid, the construction project will be offered to three companies selected by the county for negotiations. The change in policy is expected to shave 45 to 60 days off the time needed to build the dormitories. The buildings, which will house about 112 inmates, are now expected to be ready by March.