Jail Crowding Case in Court Again : Deadline: A court-imposed deadline has passed and the county must explain to a judge what, if anything, it has done to solve the chronic problem.

In row upon row of triple-deck bunks barely a few feet apart, inmates packed into the downtown San Diego County Jail woke up to another day last week of stifling heat.

The one working shower in each dormitory-like block, which houses dozens of men, offered some measure of relief. The blaring televisions, tuned to an old movie, offered authorized escape.

Newspapers served triple duty. They were there to be read. They served as fans. Some inmates had taken individual pages and affixed them to the sides of their bunks as makeshift shields from the searing sun pouring through the windows.

That day, as they had for years, according to a county judge, conditions at the downtown jail violated the federal Constitution. They were cruel and unusual.

The heat only made things worse. The unresolved problem is simply that too many men were, and consistently have been, jammed into the aging facility.

At a court hearing today, another judge, the most recent in a line of judges presiding over two major court cases protesting overcrowding at the downtown jail and at various other county jails, will decide whether the county has to do anything about it.

“I think we are really getting to the moment of truth,” said Betty Wheeler, an attorney for the American Civil Liberties Union, which brought both suits.

It already has been 10 years since the first judge, ruling in the first suit, declared that conditions at the downtown jail were cruel and unusual.

Now the county has seven jails at various sites, all chronically under-funded and overcrowded. To avoid a lengthy and costly trial on a second ACLU suit challenging conditions at the newer facilities, the county agreed to a 1988 settlement imposing caps on inmate populations.

The date for complying with those caps was Sunday. The two suits have been joined together for a hearing today before the latest judge to consider conditions at the jails, El Cajon Superior Court Judge James Malkus.

If the inmate population is not below the caps, Malkus said at a hearing earlier this year, he could issue contempt-of-court citations or impose fines on county supervisors or on jail officials. Though that is possible, it is unlikely, according to lawyers in the case.

At a hearing last month, Malkus told the county to be prepared either to put up tents to serve as temporary housing or to bus male inmates to jails in neighboring counties.

In legal papers filed late Friday, the county said it expected to meet the caps. But it admitted that it would do so only through a complex series of maneuvers.

In part, they include the deportation of certain undocumented immigrants convicted of crimes and the addition of bunks at outlying jails for transfers from the downtown jail. The county also has made use of a system to exclude from the daily count--on various grounds--dozens of inmates who assuredly are in the jails.

ACLU lawyer Wheeler, meanwhile, claims that all the county has done is engage in a number-juggling “shell game” and remains nowhere near true compliance. The inmate census fails to comply with a cap imposed on the downtown jail in the first suit, meeting instead only a more generous, “temporary” figure allowed by Malkus, she contends.

Because it is so desperate for jail space, meanwhile, the county has adopted a policy of jailing only felons, while for the most part citing and then allowing thousands of alleged misdemeanor offenders to walk free.

At last month’s hearing, Malkus ordered that women arrested for misdemeanors be cited and released, just as men have been for years. That action raised community fears of an increase in prostitution, which Malkus said was groundless.

“Even if we comply with the court order, I think conditions . . . (are) horrible,” said Cmdr. Mel Nichols, who directs the daily operation of the jails.

He added in a separate interview, “I would think that after the period of time that’s been involved that somebody would get serious about resolving this problem.”

In September, 1977, an inmate named Henry Hudler at the downtown jail set into motion the legal challenges that have led to today’s hearing before Malkus. The population in what was then the county’s only detention facility, built in 1960, had reached 1,500.

The state Department of Corrections, charged by law with determining how many inmates a jail should house, puts the number for the downtown jail at 730.

The ACLU filed suit against the county on Hudler’s behalf, alleging a variety of ills attributable to overcrowding, including understaffing by deputies and lack of inmate access to recreation, visitation and their attorneys, according to Alex Landon, the lawyer who brought the suit.

After a seven-month trial, San Diego Superior Court Judge James Focht ruled that conditions at the downtown jail violated the federal Constitution’s prohibition against cruel and unusual punishment. He ordered the Sheriff’s Department to house no more than 750 inmates there.

The ACLU filed the second suit in 1987, again alleging overcrowding, this time at the five jails the county had since built. In December, 1988, San Diego Superior Court Judge Barbara T. Gamer approved a settlement in that suit under which the county agreed to meet certain inmate caps by July 1, 1990--yesterday.

The ACLU agreed in May, 1988, to a temporary cap of 1,250 at the downtown jail while the Vista jail was being emptied for renovation. At last month’s hearing, with Vista fully operational, Malkus ordered the downtown cap lowered to 1,000.

The pact called for the cap at the Vista jail to be set at 937. Other caps were 440 at Descanso, 251 at El Cajon, 373 at Chula Vista and 478 at the Las Colinas women’s jail in Santee, according to Landon.

The men’s jail at Las Colinas is not included in the pact because it was built after the 1987 suit was filed. According to jail officials, it currently holds nearly 600 inmates, hundreds more than the state board says it should.

Each of the figures set forth in the agreement is also well above the recommendation set by the state board. For instance, the board rated the El Cajon facility not at 251 inmates but at 120.

The higher figures were designed solely to satisfy the lawsuit’s goal of meeting bare constitutional minimums--to avoid cruel and unusual punishment for inmates already convicted of crimes and to assure due process to inmates awaiting trial, according to Landon, now in private practice but still involved with the jail suits.

For months after the December, 1988, settlement agreement, the total populations and resultant overcrowding did not significantly improve, according to a court document Landon filed earlier this year.

As a result, he contended in the legal papers, the county has “essentially lost control of the jails.”

From July, 1988, through January, 1990, the San Diego County Sheriff’s Department documented 35 “major inmate disturbances,” or nearly one every two weeks, Landon said in the filing.

Three major fights, each producing injuries to dozens of inmates, have erupted so far this year, each at a different jail. Though the brawls have all been racially motivated fights between black and Latino inmates, the crowded conditions played a part in escalating tensions, sheriff’s deputies have said after each disturbance.

“When you have massive overcrowding, you have a set of circumstances that jeopardizes the safety of the inmates and the safety of (the) staff,” Wheeler said. “We’re not talking at all about providing country club conditions. We’re talking about providing conditions that result in an acceptable level of safety and health.”

At last month’s hearing before Malkus, on June 11, the jail populations exceeded the caps by a total of about 230 inmates. County officials asked Malkus to extend the July 1 deadline by three months.

He refused. Instead, calling it an “emergency situation,” the judge ordered the county to return to court today with a report on the feasibility of either busing inmates to other jails in nearby counties or putting up tents for temporary housing.

While they worked on the plan, county officials stressed that any long-term solution depends on money--lots more of it.

With more cash, the county would be able to build more jails and have the funds to staff them, said Rich Robinson, director of the county’s Office of Special Projects, which since 1986 has been charged with addressing jail-related issues.

A 1,000-bed facility is under construction on East Mesa, near the U.S.-Mexico border and seven miles east of I-805. But because the county doesn’t have the money to operate it, the jail may sit vacant once it is completed in spring of 1991.

County officials contend the state is to blame for a lack of cash, saying the state has grossly underpaid the county in the return of tax revenues, money that would go into the county’s general fund, which pays for most of the criminal justice system.

San Diego County ranked 57th among California’s 58 counties in fiscal year 1988 in the return of per capita general revenues, Robinson said, citing figures supplied by the state controller’s office. It would take $140 million more a year just to bring San Diego County up to the average of what the state’s other counties get, he said.

Funds from Proposition A, the half-cent sales tax county voters approved in 1988 for new courts and jails, “would go a long way to getting things started,” Robinson said.

Proposition A money is being collected, and is sitting in a bank--as of June 19, all $133,382,963.17 of it, Robinson said. But the validity of the measure is being weighed by state appellate courts, and a final decision is months or years away, he said.

Meanwhile, in a court document filed late Friday, Deputy County Counsel Nathan C. Northup indicated that the county was below the population caps and expected by today to still be below the caps. The precise figures were not expected to be available until early today.

As for a tent camp, Northup said that course of action is “unavailable” because it would cost $4 million annually to staff and run it. And none of the counties surrounding San Diego have beds available, Northup reported.

But, Northup said, officials expected to meet the cap--through a variety of methods:

* The downtown jail has fewer than 1,000 inmates, the number Malkus suggested last month, but got there by adding bunks to Vista and to Descanso. Northup did not refer to the 750 cap originally set in 1980.

* Malkus agreed last month to allow jail officials to exclude from the count inmates in medical beds and those awaiting release. Last week, those categories included 111 inmates, according to Sheriff’s Department figures.

* The county plans to send 30 inmates to county probation camps, Northup said in the legal papers.

* It was taking a renewed look at aggressive use of early-release programs, he said.

* Last Monday, it began using a procedure allowed under state law under which certain undocumented aliens can be released to Immigration and Naturalization Service authorities if the immigrants agree to voluntarily leave the United States, Sheriff’s Cmdr. Nichols said. By week’s end, 63 immigrants had been transferred, Nichols said.

* Malkus’ order to cite and release women accused of misdemeanors was having “an impact” at Las Colinas, Nichols said.

Before the order, when those women were being booked into the facility, it typically housed 520 women, he said. Last Friday, however, officials counted 451 toward the cap, or 27 under the limit, he said.

ACLU lawyer Wheeler said the various maneuvers might enable the county “to temporarily achieve compliance.” But she added, “That is an extremely cynical definition of compliance.”

“The circumstances don’t improve for inmates if you gain compliance with the population cap simply by not counting some of the inmates who are physically in the facility,” she said.

Besides, a count under 1,000 but over 750 at the downtown jail “tramples on the original court’s findings,” Wheeler said, referring to Focht’s 1980 decision. She said she and Landon will “strongly oppose” at today’s hearing any move by either the county or by Malkus allowing a figure above 750.

The county contends that the only way it could have agreed to reduce the downtown population to 750 by July, 1990, was on the assumption the new East Mesa jail would be open by Jan. 1, 1990.

But Wheeler said it makes no sense to rely on the East Mesa facility to take up slack if there is no money in the budget to run the new jail once it’s built.

“I don’t think (county officials) have given very thorough consideration to alternatives to compliance other than the East Mesa facility and their continued request to be excused from population caps--or to be excused from the deadline based on a lack of money,” she said.

“It’s our fervent hope the judge will require them to look beyond those two options and to come into compliance.”

But she added, “My prediction is that the county is not going to come into compliance without a lot of kicking and screaming.”