Terms Differ in Jail Releases
Experts worry Sheriff Baca's policy of having certain prisoners serve more time for the same crime may invite `equal protection' challenges.
By Stuart Pfeifer, Times Staff Writer
May 29, 2006
Under its policy of selectively releasing criminals to ease jail overcrowding, the Los Angeles County Sheriff's Department has routinely forced women, prostitutes arrested in Compton and certain gang members to serve more time than others convicted of identical crimes.
Prosecutors and legal experts fear the practice could be illegal and prompt lawsuits challenging its constitutionality.
"It could not be more upside down and backward," Los Angeles County Dist. Atty. Steve Cooley said.
The county lacks the resources to hold all the people being sent to jail, but at the same time Sheriff Lee Baca is under federal court order to avoid overcrowding in the nation's largest jail system.
Therefore, Baca says, he has no choice but to direct jailers to free dozens of inmates every day under a set of rules that governs which inmates get out early — many after serving less than 10% of their sentences — and which stay behind bars.
Under the policy, inmates arrested in certain crime-plagued regions are incarcerated 10 times longer than those arrested for the same crimes in other parts of the county, according to interviews and the department's two-page "Release Criteria."
For example, people convicted of prostitution in areas served by the sheriff's Compton and Century stations are required to serve 100% of their sentences, while those convicted of prostitution in the rest of the county serve 10%.
That's because the department is cracking down on prostitution in those regions, and officials believe the program would be less effective if inmates were released early, said sheriff's Chief Marc Klugman, who oversees the jails.
The department has also made exceptions for members of a Hawaiian Gardens gang implicated in the June 2005 slaying of Deputy Jerry Ortiz.
Department policy now calls for those associated with the gang to serve full sentences for any crime for which they are convicted.
The arbitrary nature of those decisions worries Cooley and others, who say the policy could violate the "equal protection" clause of the Constitution, which requires similarly situated people to be treated equally by the government.
Long Beach City Prosecutor Tom Reeves said he was concerned for other reasons. Forcing Compton prostitutes to serve their entire sentences could push them over the border into Long Beach, where prostitutes convicted by Reeves' office serve just 10% of their sentences.
"I guess it must be a much more serious crime in Compton than it is in Long Beach," Reeves said. "That upsets me a great deal because we have quality-of-life issues, just as Compton does."
There are also gender-equity issues.
Over the years, the Sheriff's Department has maintained different release policies for men and women, even for those convicted of the same crimes.
Male and female inmates are housed in separate jail sections, and sheriff's officials said their release policies are based on the amount of space available and fluctuations in arrests.
Two years ago, women convicted of all but the most serious crimes were released immediately, serving none of their sentences. But in the last year, the department required women convicted of assault to serve 25% of their sentences while men served just 10%.
Klugman said he changed the policy earlier this month. Men and women now are eligible for release after serving 10% of their time.
"You could probably go through this entire early release policy and nitpick it and find all kinds of inequities. But remember: No one has a right to early release," Klugman said.
The Sheriff's Department has released inmates early from its jails for decades to deal with overcrowding issues. Faced with steep cuts to its budget, the sheriff started closing jail facilities in 2002 and dramatically increased the practice of early release.
A staff of civilian clerks decides who is released by reviewing inmate files and the release criteria drafted by department executives.
In the last four years, the department has freed more than 150,000 inmates three or more days early. According to an investigation by The Times, nearly 16,000 of those were charged with committing new crimes during the time they would otherwise have been in custody, including 518 robberies, 215 sex crimes and 16 murders.
Last Tuesday, the Sheriff's Department announced that it would begin looking into inmates' criminal records before deciding whether they should be released early. Those with past convictions for violent or serious crimes would be held for their entire sentences, Klugman said.
That announcement underscored the difficult task the Sheriff's Department has in striking a balance between meeting a federal court order that prohibits the agency from overcrowding the jails and its duty to protect the public.
Cooley said he wants the department and county leaders to find a way to hold all inmates for their entire sentences. In the meantime, the prosecutor said, he's concerned about how the department is deciding who will be released. The decision about how much time inmates serve should be made by judges who have reviewed all relevant factors, not civilian clerks, Cooley said.
A policy that calls for women to spend 150% more time in jail than men convicted of the same type of crime appears to be "unconstitutional on its face," Cooley said.
Applying sentences differently based on where the crimes were committed could also pose problems, he said.
Prompted by questions from The Times, Cooley last week assigned attorneys to investigate whether the sheriff's early release policy is violating some inmates' constitutional rights. Although the review is just underway, Cooley said he was troubled to learn that the department is making its decisions based on geography, gender and other factors — instead of following judges' intentions.
"We need to spend more time with the Sheriff's Department and explain these concepts to them," Cooley said.
Steve Whitmore, a spokesman for Baca, said the sheriff would welcome suggestions from Cooley's staff. He said the department previously had been unable to get prosecutors to help devise an early release protocol.
"The sheriff welcomes his participation and looks forward to it," Whitmore said. "We believe the district attorney's office can be helpful."
Eugene Volokh, a professor of constitutional law at UCLA, said he believes the department has the right to prioritize enforcement efforts and can legally hold some inmates longer than others for the same crimes.
But he questioned the past policy of holding women longer than men.
"Having separate sentences based on whether you're a man or woman, I would say, would be presumptively unconstitutional," Volokh said. "At the very least it poses serious constitutional questions."
Duke University's Erwin Chemerinsky said, "Imagine if the Legislature said women who commit assault will serve 2 1/2 times more than the men who committed the same crime. No one would stand for that."
He suggested that the Board of Supervisors or Legislature might be better suited to establish guidelines for early release.
David Bennett, a Utah-based jail consultant who has advised counties on dealing with overcrowded facilities for more than 25 years, said the county needs to form a plan that makes sense. Leaving everything in the hands of the sheriff is unfair and ineffective, he said.
"L.A. County has to rethink its whole criminal justice plan because this doesn't work," Bennett said. The sheriff "should not have to put on a judicial robe and release people early. He's had to do this because the rest of the system is broken. It needs the involvement and leadership of the entire criminal justice system."
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