Federal Courts in San Diego Tough on Bail : Justice: Fewer defendants are released on bail here than in any other part of the country.

Presumed innocent, 43-year-old Armando Morales Solorio cooled his heels in San Diego’s federal jail for 11 weeks, awaiting trial, unable to make $200,000 bail.

It was all a mistake, he said. He had been in the back seat of the car when it was stopped for speeding. He knew nothing about the 2 pounds of methamphetamine the cops found in the spare tire well. And $200,000--well, that was more money than he had ever seen in his life, so much that there was no way his family could even begin to bargain with a bail bondsman.

So, Morales said, he sat in jail, wondering about a court system that would label him a “flight risk.” His wife and two kids were in Vista. His sisters lived there. The kids went to school there. He had a green card. He was Mexican, sure, but had no reason to dash across the border.

Last week, suddenly, it got even more bewildering. Prosecutors abruptly dismissed his case, figuring it would be difficult to prove in court. And, out of jail he walked, after surrendering 11 weeks of his life. “I mean, I really should have gotten out on bail sooner,” Morales said in Spanish. “Don’t you think?”

In any other federal court in the country, the odds are that Morales would have been out a lot sooner. In San Diego, bail is tough to get and hard to pay--a combination that’s out of step with the spirit of the bail laws and wildly out of line with every other federal court in the country, according to recently released statistics.

More than half of the accused criminals, 56.4%, who appear in the San Diego federal court are unable to make the bail a magistrate sets at an initial hearing, the statistics show. Nationally, that rate is 8.5%. No other court is even above 33%.

In San Diego, nearly half the criminal defendants, 48.3%, turn to bail bondsmen to finance their freedom, a complex and expensive procedure that federal law allows but frowns upon. Nationally, that rate is 6.2%. None of the 93 other federal courts in the nation is above 19.6%.

The statistics explain why the federal Metropolitan Correctional Center in downtown San Diego is packed with nearly twice the number of inmates it was designed to hold. Built for 522 inmates, it averages 1,000 a day, at a cost of $43 per inmate per day, jail officials said last week.

To relieve crowding at MCC, San Diego County officials agreed last year to house up to 150 inmates a day at County Jail downtown--at $67.70 per inmate per day, $2.7 million for the first year of the deal, authorities said. The county jails, however, are so jammed that the addition of 150 bodies often leaves the inmate count over court-ordered caps.

This taxpayer-financed circle can, for the first time, be traced directly to the San Diego federal court’s bail philosophy. The statistics have never before been available because the Pre-Trial Services Agency, the office that generated the numbers, is new to San Diego and just recently released the first of what will become annual reports.

What is not clear is why the San Diego court philosophy is so out of line.

In dozens of interviews last week, lawyers offered the same theory, saying that the federal magistrates who set bail apparently believe the proximity of the U.S.-Mexico border heightens the risk of flight. Until now, without statistical proof to the contrary, nobody knew that what has been an accepted local practice is, by comparison, an aberration, lawyers said.

“I think a lot of it is old bad habits,” one attorney said, adding, “But that’s not much of an explanation.”

Especially because the statistics indicate that other courts serving the U.S.-Mexico border area don’t use bail the same way. And, the numbers reveal, the vast majority of people accused of crime in the San Diego court are either U.S. citizens or legal aliens, people with ties to the United States.

“You’re dealing with numbers,” said Mario Conte, executive director of Federal Defenders of San Diego, the 18-lawyer office that represents poor people charged with crimes in federal court. “But what you’re really dealing with is a philosophy, a philosophy that nobody gets out on bail.”

The magistrates, Conte said, “are doing everything they can to make it a quagmire to get someone out of jail. And why I don’t know.”

Prosecutors demurred. “I wouldn’t deal in generalities,” said James W. Brannigan Jr., the chief assistant U.S. attorney in San Diego. “The numbers, the percentages don’t mean anything. You have to look at the cases and decide in each particular case whether bail is appropriate or not. You can’t look at it by percentages.”

Chief U.S. District Judge Judith N. Keep said she did not have a ready explanation for the statistics.

“But if there’s a cause for concern, then the entire defense bar in San Diego has not been doing their job,” she said. “And I cannot say that about them. They do a wonderfully aggressive job.”

None of the five current magistrates could be reached for comment. Irma Gonzalez, a formal federal magistrate and now a San Diego Superior Court judge, declined to comment.

The magistrates, appointed to eight-year terms by the district court judges on the San Diego court, set bail in felony cases, then send the case on to a trial before a District Court judge. The San Diego court currently has six full-time district judges.

Felonies are those charges that can lead to a year or more in prison. Magistrates also handle the trials of less serious misdemeanor charges, which in the San Diego court typically means about 5,000 illegal entry and low-level drug arrests annually, most from so-called border busts.

One of the reasons the statistics generated by the Pre-Trial Services Agency are so telling is that they virtually exclude all that misdemeanor traffic. From July 1, 1990, through June 30, 1991, according to the figures, the San Diego court opened bail files on 2,129 defendants, 96.3% of them felonies.

The San Diego court handled a full 4% of the criminal caseload in the entire nation, 2,129 of 53,047 cases, the statistics show.

About 64% of those 2,129 cases were drug-related, according to the statistics, contrasted with 43% nationally. An even 74% of the 2,129 cases involved people with no criminal record or no pending charges.

The bail law itself is simple. As revised in 1984, it says that a magistrate shall release a suspect before trial, either on one’s honor or in exchange for a written--but unsecured--promise to show up for the trial or forfeit cash.

The law also makes clear that a magistrate cannot set bail so high that it effectively keeps an accused in jail until trial. However, the accused can be held without bail if he or she is unlikely to appear for trial in any case, or represents a danger to the community.

In 1987, the U.S. Supreme Court put it this way: “In our society, liberty is the norm and detention prior to trial is the carefully limited exception.”

In San Diego, though, the exception is more like the rule, with 56.4% of defendants not making the bail the magistrate sets at a first hearing.

That figure is far lower even in other courts that handle a high volume of drug- or border-related cases.

The court that serves Brownsville, Texas, registers 33%, the second-highest rate in the nation. In El Paso--which, like San Diego, has a sizable city right across the border--the figure is 11%. In Miami, it’s 18.6%.

The contrast with the three other federal courts in California is even more striking. That 56.4% rate contrasts with 6.8% in Los Angeles, 2.4% in Sacramento and 0.1% in San Francisco.

Defense attorney John Cleary speculated that, behind the high bails in San Diego lies an intention to get the accused to agree to a plea-bargain, an attractive objective in a district that has among the nation’s highest criminal caseloads per judge.

Cleary called this the “Charmin test” for the handling of criminal cases.

“That is, squeeze the defendant and you’ll produce a disposition other than a trial,” he said.

The longer a person fidgets behind bars, the more attractive a plea bargain can become, Cleary said.

William Braniff, the U.S. attorney in San Diego, disputed that claim. “All I can say is, that’s not the purpose of bail,” Braniff said. “The purpose is to ensure attendance at trial. That’s all.”

A magistrate may simply order jail without bail before a trial. But the law makes clear that the favored course is release--even if it comes with conditions like curfews or check-ins with court authorities.

The law also says that release may be conditioned on the use of a corporate surety bond, meaning bail obtained through a bondsman, who typically takes 10% off the top, then pays the bail only after securing the bond with property, usually the family homestead.

In San Diego, 48.3% of the defendants turned to bail bondsmen because they otherwise could not have afforded bail.

That is far and away the highest rate in the nation. No. 2 is Miami, at 19.6%. In Brownsville, it’s 17.8% and in El Paso, 10.3%.

It’s 1.4% in Los Angeles, 1.4% in Sacramento and 1.1% in San Francisco. The national average is 6.2%.

“Our norm is aberrant,” Conte said. “The way (magistrates) duck behind not following (the bail laws) is to say, ‘We’re a border town, most of your clients are Hispanic, most of your clients have ties to Mexico, and therefore we will make a subjective legal judgment that these people will run.’ And that is simply not true.”

The statistics indicate that 50.1% of the defendants in the San Diego court were U.S. citizens, 1,067 of 2,129. An additional 20.3%, 432 people, were legal immigrants, meaning a total of 70.4% have ties to this country.

The statistics show that 12.9% of the San Diego defendants were illegal immigrants. Another 16.7% were “unknown,” according to the figures.

The figures, defense lawyers said, make clear that the fear defendants will run to the border ought to be examined closely.

There are better ways to spend taxpayer cash than at $43, or $67, for a bed and three squares a day, lawyers said. Several said a decent hotel room can cost less.

Taxpayers spent $4.2 million for food and shelter during the 12 months covered by the numbers--on just the 1,074 San Diego cases that were closed during that period. It would be a “fair guess” that the final cost will be about double that when all 2,129 cases close, Vaughan said.

Then there is what Steven J. Riggs, a deputy federal defender, called “the real point to all of this.”

“People who aren’t U.S. citizens, who have papers to be here, have purposely chosen to come to the U.S. to live,” Riggs said. “Either their family or friends are here, and they intend to establish ties here. Or this is where they believe they’re going to have a better life.”

“Yet the presumption in this court is that they’re going to run,” Riggs said. “In 2 1/2 years, I’ve never had a Spanish-speaking person violate bond.”

Bailing Out in San Diego

Total number of defendants (people charged with crimes): National: 53,047 San Diego: 2,129 (4% of national total)

Percent Felony Charges National: 89.7% San Diego: 96.3%

Percent Drug Cases National: 43.4% San Diego: 64.4%

Percent of defendants unable to make financial bail set at the initial hearing:

Comparing San Diego with other federal courts known for handling large volume of border of drug cases National: 8.5% San Diego: 56.4% Miami, Fla.: 18.6% San Antonio / El Paso, Tex.: 11% Houston / Brownsville, Tex.: 33%

Comparing San Diego with other federal courts in California Los Angeles: 6.8% Sacramento: 2.4% San Francisco: 0.1%

Percent of defendants with corporate surety bonds set at the initial hearing (i.e., those who must try to finance freedom through a bail bondsman):

Comparing San Diego with other federal courts known for handling large volume of border or drug cases National: 6.2% San Diego: 48.3% Miami, Fla.: 19.6% San Antonio / El Paso, Tex.: 10.3% Houston / Brownsville, Tex.: 17.8%

Comparing San Diego with other federal courts in California Los Angeles: 1.4% Sacramento: 1.4% San Francisco: 1.1% Source: San Diego Pre-Trial Services Agency