Jail Crunch Amputates Long Arm of the Law : Crime: The word is out. Criminals know they can often avoid jail because there is no room at the inn. After receiving citations, many just don’t bother showing up in court.

A North County judge wants Gerald J. Whelan behind bars so badly he won’t let the man bail out once he’s in jail.

After all, the 35-year-old Encinitas man has failed to appear in court on five occasions and is in violation of his probation after he was convicted twice of drunk driving, according to court records.

So, in frustration, Victor Ramirez, the Vista Municipal Court’s presiding judge, issued a no-bail arrest warrant for Whelan in July.

Earlier this month, Whelan was caught by authorities--for an equipment violation on the car he was driving. Whelan was then cited by the deputy sheriff for driving without proof of insurance, on a suspended license and in a car that wasn’t registered, according to court records.

The deputy ran a computer check on Whelan and found there was a no-bail arrest warrant for him. She was informed of his five previous failures to appear in court, as well. And she had him right there, in her grasp.

But she released him--after having him sign a promise to appear in court next month. He may show up. He may not.

Judges, prosecutors and cops are all saying the same thing these days--something the bad guys already know:

The long arm of the law is arthritic in San Diego County, where tens of thousands of scofflaws who should be in court or in jail are walking the streets with impunity, and law enforcement is the one handcuffed in bringing them to justice.

The reason? San Diego County’s seven jails are overfilled with felons, with persons awaiting trial for felonies or the most serious misdemeanor crimes, and with drunk drivers sobering up. So the Sheriff’s Department isn’t jailing persons accused of less-serious misdemeanors, of failing to pay court fines or victim restitution or family support, or ones wanted for arrest by judges simply because they’ve missed previous court appearances on misdemeanor cases.

The fact is, you can sometimes avoid jail even if you are accused of such misdemeanor crimes as battery, indecent exposure, non-injury hit-and-run, possession of a concealed weapon, shoplifting, driving on a suspended license and failing to meet various terms of probation, such as attending a drunk driving school.

“Imagine a deputy sheriff working a night shift who gets a call of a prowler--a misdemeanor--and knows that if he catches the person, all he or she can do is write a citation and release the suspect because the jails are too crowded to take him,” remarked Lt. Alan Truitt, who spent the better part of 13 years as a patrol deputy before becoming an administrative supervisor at the Vista Jail.

“That guy is let off with a citation, and he can still prowl.”

Deputy Dist. Atty. Charles Bell daily has to inform victims of misdemeanor crimes that the suspects--who may well be identified--are not in jail to face the music, and may never appear in court at all.

“People have no idea that we can’t bring suspects (of misdemeanor crimes) into custody,” said Bell, who issues cases for prosecution in the Vista courthouse. “As a victim, they assume that if there’s an outstanding warrant for the suspect, he’ll be brought in to justice and they ask me when we’ll catch the guy. I have to tell them the truth--that they won’t be brought in.”

These misdemeanor defendants will only show up to court if they want to--and more and more of them are realizing that if they don’t, nobody’s coming after them.

Vista Municipal Court Judge Michael Burley remarked wryly, “We wind up prosecuting the criminals who are decent enough to show up in court. The indecent ones stay away.”

Added Bell: “I’ve been in court on days when 40% of the misdemeanor defendants don’t show up. We’ve prepared our case for the prosecution. The witnesses are here, the judge is ready, the matter is calendered and the defendants don’t show up.”

So, the judge issues a bench warrant for the person’s arrest. It goes into a computer, and there it dies, like some giant glitch in the system, a tear in the fabric of law enforcement that no one can sew shut.

According to the county marshal’s office--the agency assigned to grab scofflaws--there are more than 597,000 outstanding warrants in San Diego County. Of those, only about 10,000 are for felonies, and the office aggressively sends deputy marshals into the field to bring those persons to court or jail.

Of the balance, roughly 258,000 warrants are for persons who have failed to appear in court for traffic citations. Another 177,000 are arrest warrants issued by judges for persons who have failed to appear in their courtrooms for criminal misdemeanor cases. About 147,000 warrants are given to persons suspected of committing a misdemeanor crime and who are simply cited and released in the field--on the promise they’ll show up in court on a specific day--because there’s no room in the jail to book and hold them. The rest of the arrest warrants are for such things as failure to pay child or spousal support.

The marshal’s office doesn’t know the actual number of persons who are wanted; some persons have one or two warrants for their arrest; others have 10, 15, 20 or more.

“Misdemeanor warrants are not being effectively worked because the jail won’t even book those persons,” said Les Conner, the assistant marshal. “If you’re suspected of committing a misdemeanor, the police agency will simply cite and release you.

“It’s frustrating, because the word is out to these people--the small percentage of people who commit most of our crimes--that they won’t go to jail,” said Conner.

“Most people don’t realize how significant the problem is. It makes very little sense to order people to pay fines or set terms or conditions for probation if we don’t have the ability to follow up on them and enforce it. It is a hollow threat, a non-existent punishment.”

Some Municipal Court judges in San Diego County are trying to resolve at least the traffic warrant problem by taking another approach. Rather than issue a traffic warrant, they are ordering the Department of Motor Vehicles to not renew the driver’s license or car registration of a person named in a traffic warrant. But some prosecutors say that, too, is a hollow threat because the person will then simply drive on a suspended license--and without car insurance--knowing that if he’s caught, all that will happen will be yet another misdemeanor arrest warrant and he will still be free.

Another partial solution--now being considered by the San Diego City Council--is the construction of a privately operated, 200-bed jail that would hold misdemeanor suspects awaiting arraignment, at an annual cost to the city of about $4 million.

The county is planning to construct its own 500-bed prearraignment jail, where misdemeanor suspects can be held until trial or until they are bailed out, but it’s not expected to be open until 1993.

Also discussed is the use of a private collection agency to put the squeeze on persons who don’t pay their fines, but there are concerns over liability and because the collection agents wouldn’t have the power of arrest over those who would still refuse to pay.

Judges, prosecutors and police say they can’t blame the Sheriff’s Department for the problem of inadequate jail space, and look to public funding to ultimately resolve the problem.

“The public has to determine that it wants safe streets,” said San Diego Municipal Court Judge H. Ronald Domnitz. “The only way to do that is to finance incarceration and rehabilitation facilities.

“I’m getting sick and tired of people who say they don’t want to spend money on those types of facilities. Either we spend the money or we put up with the crime. That’s it.”

One of the inherent risks of allowing misdemeanants free on the street is that they may not only continue their petty crime sprees with impunity, but graduate to more serious felonies before finally being held accountable.

“If the system is functioning the way it should, as soon as the first (misdemeanor) warrant is outstanding, they would locate that individual, pick him up and put him in jail,” said San Diego Municipal Court Judge E. Mac Amos Jr.

“Now, though, that individual is not brought into the system until he commits a felony,” he said. “It’s not uncommon for me to see an individual on a felony charge who has four or five misdemeanor warrants.”

To that point, Bell, the Vista prosecutor, tells the story of how Christopher C. Millard, a 20-year-old Vista resident, was arrested Oct. 28 on suspicion of being under the influence of drugs, was booked and then released from jail without posting bail--even though there were two outstanding warrants for his arrest that technically required that he post a bail of $15,000 to be released. One arrest warrant was for resisting arrest; the other, for possessing a switch-blade knife, Bell said.

Three days later, Millard failed to appear for a previously scheduled preliminary hearing on charges he had stolen a car. Last weekend, Millard was arrested on suspicion of stealing a second car, Bell said.

Had Millard been jailed on the weight of the previous arrest warrants, Bell said, he might not have been on the streets to be accused of stealing a second car.

“This time,” Bell said, “he’s in custody, and I do not believe he’ll be released.”

The problem has gotten so frustrating that some police officers take misdemeanants directly to a judge rather than to the jail door, where they know the person will be refused.

“Any given day, I might have four, five or six serious warrant violators in my courtroom, brought in by the arresting officers,” said Ramirez, the presiding Municipal Court judge in Vista. “The police bring them directly into my courtroom, in handcuffs.” Ramirez then orders the jail to put the violator behind bars.

Said Bell: “We once had a fellow with close to 15 misdemeanor warrants for his arrest, and he told the police officer, ‘Big deal, I’ll never be put in jail.’ The officer took care of that. He came in and got one of our people, and the two took the fellow to a judge, and the judge ordered him in jail.”

If judges and prosecutors are frustrated, consider the police officers and deputy sheriffs in the field who nab small-time crooks and no-goods, only to have to let them go after they sign a piece of paper promising to appear in court.

“We know they have no more intention of appearing on that case than any other they’ve failed to appear on,” said Oceanside Sgt. John Lamb. “But that doesn’t mean we can stop arresting them. I swore an oath to uphold the law, and simply because the system has failed to adapt to the situation doesn’t release me from my word of honor to continue doing my job.

“I tell my officers to learn what they have control over, and what they don’t, and not to get discouraged or depressed over the apparent failure of the system.”

Sgt. Karol Takeshta of the sheriff’s Encinitas substation said rookies on the department--like the one who cited Whelan for the traffic violations but who had to release him despite the no-bail arrest warrant--are especially frustrated that misdemeanants can’t be put in jail.

“It’s like losing a case in court,” Takeshta said. “You’ve done everything by the book, they way they taught you in the academy, but you don’t get to hear that (jail) door slam.

“But every dog has his day,” she said. “If he’s a crook and we can’t put him away the first time, he gets a false sense of security and the day will come when he’ll do something enough for us to put him away. We’re patient. They’re not.”

Whelan, meanwhile, said he’ll take care of his misdemeanor arrest warrants. “I’m supposed to call my lawyer today about them,” he said last week. “I don’t want to be driving around with warrants hanging over me.

“I haven’t blown it off. It’s not done out of disrespect for the law. I’m not thumbing my nose. But I have a tendency to put things off.”