Defense Attorneys say bails lead to overcrowding

By VIRGINIA HENNESSEY, Herald Salinas Bureau

Monterey County defense attorneys have asked the presiding judge to reduce bails that they say are leading to jail overcrowding and creating a burden on poor defendants and the Public Defender's Office.

In a letter submitted by attorney Tom Worthington, the defense bar said the current bail schedule, established in 2006, is much higher than in neighboring and comparable counties, which have fewer residents living below the poverty line.

"It is possible that bail becomes excessive when it clearly exceeds what is economically necessary to overcome the risk of flight for a given crime in a given county," the attorneys wrote in the Sept. 26 letter to Judge Russell Scott.

The group quotes Sheriff Mike Kanalakis as saying the Monterey County Jail, built to hold 812 inmates, currently houses 1,100, and 80 percent of the inmates are defendants awaiting trial who have been unable to post bail. As a result of the overcrowding, the bar said, it is not uncommon for inmates to be housed in the "holding tank" for up to a week and be denied their state-mandated exercise periods.

The state recently withdrew an offer of $80 million that would have gone toward a jail expansion after county supervisors were unable to identify a location for a reciprocal prison re-entry facility.

The lawyers cautioned Scott that the jail conditions "invite tragedy ... or the intervention of the federal courts."

Twenty California counties are under court-ordered maximum-population limits; another 12 counties have set self-imposed limits. As a result, counties are releasing inmates before completion of their sentences to make way for new defendants.

Salinas attorney Eugene Martinez compared bail schedules, which establish a set bail for a specific crime, for the counties of Monterey, Santa Cruz, San Benito, San Luis Obispo, Sonoma, Tulare and Santa Barbara.

Monterey is the only county that sets an additional bail — $50,000 — when a sentencing enhancement is alleged for a prior strike under the Three Strikes law. Other examples included Monterey's $100,000 bail for spousal rape compared with $50,000 in Tulare and San Benito counties; $100,000 for vehicular manslaughter while intoxicated, compared with $50,000 in Santa Cruz and San Benito counties; and $10,000 for passing a bad check, compared with $5,000 for each of the other counties.

According to the bar, many defendants who pose a limited flight risk are unable to make bail. Others expend all their resources to post bail, then can't retain a private attorney and are assigned to an overloaded Public Defender's Office for counsel.

Judges have discretion to set bail above or below the bail schedule based on the facts of a case and considering public safety and the potential for flight risk. The attorneys said they asked the court for past defendant flight statistics and were told no such records are kept.

"Clearly, if the court does not keep track of such statistics, the judges who set the bail schedule cannot possibly use such information when setting, and almost always increasing, the amount of bail in the bail schedule," they wrote.

The bar proposed alternatives to high bails that could include requiring a defendant to wear a GPS monitor, to report regularly to the sheriff's office or to live with a responsible person who would ensure his or her appearance in court.

"It is understood that these suggestions may be unpopular in some circles, but we believe that bringing our bail schedule more in line with that of our neighboring counties ... would more accurately represent the economic reality of the community ... better conform to the spirit of the Constitution and ... save the taxpayers of this county enormous amounts of money," the letter states.

It was signed by 16 members of the defense bar, including private attorneys and public defenders.

Public Defender Jim Egar said he has remained neutral on the issue, though he agrees bails are unnecessarily high in some cases and that his office is overburdened.

"Whether people are entitled to bail, and the amount, should be determined by the facts of a case, the identity and record of the individual, not on what the impact will be on the Public Defender's Office," he said. "Whether people will be able to afford private counsel I don't think is germane to the issue of appropriate bail."

District Attorney Dean Flippo and Kanalakis said they welcome review of the schedule and relief of jail overcrowding, as long as it's not at the expense of public safety.

Assistant Presiding Judge Adrienne Grover said the request is timely, as the court is in the midst of its mandated annual bail review.

Virginia Hennessey can be reached at 753-6751 or vhennessey@montereyherald.com.