San Diego is the only urban county in California interpreting a recent state attorney general's opinion in a way that has added more inmates to the county's already overcrowded jail system, according to interviews with state and county officials.
The advisory opinion, issued in June by the office of Atty. Gen. John Van de Kamp, said jailers should not release without bail people arrested on outstanding misdemeanor warrants, a practice used in many counties to relieve pressure on overcrowded jails.
In response, San Diego County Sheriff John Duffy decided that jailers or deputies in the field would no longer cite and release people detained after warrants have been issued for their arrest. Most such warrants are issued for people who have failed to appear in court as ordered or have not paid a fine for a traffic ticket.
Those arrestees are now being kept behind bars until they either post bail or appear before a judge, normally within a day of their arrest. The extra inmates have swelled San Diego jail populations about 10% above prior levels, which were already setting records for overcrowding.
The overflow has prompted a flood of media coverage about the problem, focusing attention on the condition of the jails just before voters decide Nov. 4 on the county government's request for a temporary, half-penny-per-dollar sales tax increase for new jails and courthouses.
Today, attorneys representing jail inmates plan to ask a Superior Court judge to require Duffy to comply with an earlier order limiting the County Jail downtown to 750 inmates. Last week, that jail held more than 1,100 prisoners, and much of the overflow was caused by the implementation of Van de Kamp's opinion.
But other urban counties with programs similar to San Diego's are either still weighing the impact of the opinion or have simply chosen to ignore it.
Ed Smith, assistant executive officer for the California Board of Corrections, which monitors jail trends, said he chose not to even mention the opinion in his most recent newsletter to county jail commanders because its meaning and impact were unclear.
"I just don't think many counties are paying attention to it," Smith said of the opinion. "I had real misgivings about putting it into our newsletter. . . . We'll just let the counties do what they think best and not raise the possibility that they shouldn't be doing citations."
Contra Costa County Sheriff's Capt. Larry Simmons said his county continues to cite and release people who have warrants out for their arrest unless the judge who issued the warrant specifically ordered that the person not be released.
"The attorney general's opinion is really an advisory thing, and it's really not binding," Simmons said. He said Contra Costa's county counsel has advised the sheriff's department that it need not follow Van de Kamp's ruling.
In Sacramento County, sheriff's officials are continuing the cite and release program while the county counsel studies the opinion, said Sheriff's Lt. Donald Corbett.
In Santa Clara County, Assistant Sheriff Wes Johnson said his department also continues the practice, but might stop if the sheriff's attorney backs up Van de Kamp's opinion with one of his own.
Even in San Francisco, where the district attorney made the request that led to Van de Kamp's opinion, the sheriff's department so far is ignoring it.
"We haven't changed our poli cy," said Deputy Sheriff Rich Dyer. "It's under review but we don't anticipate any changes in our cite policy because of the attorney general's opinion."
Assistant Atty. Gen. Steve White said he wasn't keeping track of which counties had adopted the opinion as policy and which were ignoring it. White, in fact, in a letter and telephone conversation, offered San Diego County a method for getting around the ruling.
"All we're doing when asked the question is giving our best legal opinion of what the law is," White said. " . . . If they're choosing to disagree with it, that is essentially a local government decision. . . . We're not offended."
White said he told San Diego County officials that they could follow the letter of the ruling by obtaining permission from local judges to set bail for certain arrestees. But that scheme was approved only by the San Diego and South Bay municipal courts and only for a 30-day period.
Assistant Sheriff Clifford Powell, who administers the jail system, said two factors weighed in his decision not to ignore Van de Kamp's opinion.
First, Powell said, he feared the county would be liable if a person arrested on a warrant was released without bail, then committed another crime.
"It may be far-fetched," Powell said, "but my assumption is if a person were cited and released on a relatively high misdemeanor warrant then consequently were to go out and commit another crime, someone could come along and say you did not have the authority to do that, and had the individual stayed in custody, the consequences would not have happened, therefore you (the county) are at fault."