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Judge and Gavel
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  • Richard L. Duquette

A Victim's Guide to Sentencing Alternatives

Many bicyclists and pedestrians fall victim to criminal conduct in the process of being injured. In many cases the first thought the defendant will have is not how to compensate the victim, but how to avoid jail. And while as an injured victim your first impulse may be to seek punishment and retribution, keep in mind that your civil case is separate from the criminal case, and collecting monetary damages is more important to your long-term recovery than retribution. In some cases, a defendant sitting in prison is a lot less likely to be able to compensate an injured victim than a defendant who is able to return to work as a productive member of society. In many other cases, the real civil defendant is the insurance company, not the individual criminal defendant. In these situations, locating, communicating with, and securing the cooperation of the criminal defendant is a lot easier if they are not sitting in a jail cell. This is where it helps to understand that there are a number of alternatives to jail. There are some general programs or ways to avoid jail available state wide and each county in has their own unique options. We will start with the general options.

Suspended sentence or time stayed: Even if you are sentenced to jail time the court or DA can agree to stay the time or give you a suspended sentence. This means you agree to go to jail for a defined period of time but you only go to jail if you fail to complete certain terms of probation. Often times the stayed or suspended time will be more time than if you had just gone into custody but it is a way to stay out of jail and if you successfully complete probation you never go to jail.

Public Works: It may be possible to convert the time to Community service or "Public Works" (also referred to as Cal Trans or CWP in Orange and work release in Riverside).

Community Service: Community Service is volunteer work for a non-profit organization. You will need to see if the court lets you select any non profit or if there is an approved list for that county. Generally you get assigned hours instead of day so 5 days would be converted to 40 hours community service. You will have a set time to complete the hours and must provide proof to the court upon completion.

Public Works or Cal Trans or Community Work Program (CWP) is a program where you will report to a specific location as assigned by the sheriff's department or probation. Then you will be taken around the county to do work, this may include picking up trash on the side of the freeway in the orange vests, filling sand bags, folding clothes at the VA, etc. Sometimes this is ordered separate from custody and other times it is in lieu of custody. The distinction is important so be sure you understand how the Public Works is assigned.

Specialty courts: Each county has made an effort to address certain segments of the population (i.e. homeless court and veteran court) or particular types of crimes (drug court and DUI court) with specialty courts that aim to provide special help to its members. These programs usually require a specific number of factors to be admitted and require a lot of participation. They do have the power to send you to jail if you violate terms of the program but it is another option that allows you to earn staying out of jail.

Treatment: Sober living or inpatient rehab facilities may also be an option to avoid jail time. Some Judges will allow you to serve your time in one of these facilities and have it count as custody days so you don't have to go to jail. Generally this allowed only if alcohol or drugs were a factor in the crime. So in the personal injury context, this is an option that can be explored when a drunk driver is involved in the crash. Be sure the facility is approved by the courts before checking in. Another huge benefit to this as an alternative to custody is that often time health insurance will pay for some or all of the cost of the facility.

Restitution: In the criminal context, restitution is the dollar amount that the court orders the defendant to pay to the victim from their own pocket. This is separate from civil damages, but it still goes to the same purpose as a civil judgment award—compensation of the victim. Often restitution awards will be less than civil settlements or judgments, especially when the defendant is indigent or when insurance is involved. But a criminal defendant who is out of jail is more likely to be able to pay this amount. And by discharging that obligation, that person is able to move on with their life and contribute to society again.

Now let's look at some of the county-specific programs in San Diego, Riverside and Orange counties.

San Diego County Programs

A few years ago the sheriff's department created a program called County Parole and Alternative to Custody (CPAC). This is sometimes referred to as electronic confinement or house arrest. Basically you are given an electronic monitor that reports your location. You are allowed to go to work, school and court programs and stay at your house when not doing those activities. Sometimes this may include alcohol monitoring or other conditions as part of the program. You must be approved by the sheriff's department but it is possible to be approved before you enter your plea so you can look for other alternatives if you are denied admittance to the program. Generally this is the best alternative to custody for most of my clients.

There is another alternative to custody that will allow you to work and it is called work furlough. In this program you actually stay at a jail over night but are allowed to leave to work during the day. It also allows you to attend court programs, religious services and other approved activities. You must be approved for this program. To be approved you must actively be employed and your employment must meet the requirements of the program, such as minimum 35 hours of week schedule, allows phone check at work, not related to the crime, etc.

If you are not currently employed but are seeking employment or if your employment does not meet the qualifications for work furlough there is yet another option call Residential Re-entry Center. RRC requires that you attend classes, programs and must actively job search while in the program. You must secure employment (35+ hours) within 90 days of joining the program.

Weekend Jail is another possibility if you do not qualify for any other program. You must have it noted in the court minutes that you are approved for weekend jail to be allowed to do this option. You report to jail on Friday with the court minutes and an ID. You stay in jail over the weekend and then are released. This option is usually available if there are not a great number of custody days.

Orange County Programs

Orange County has a program very similar to San Diego CPAC program called Supervised Electronic Confinement (SEC), this is also sometimes called house arrest. It is also run by the probation department and requires you to be approved to participate. You wear an electronic monitor at all times and must obey all rules as to approved locations and activities while being monitored.

Private jail and Work Furlough: Orange county allows you to spend custody time in private jails. Private jails, sometimes referred to as "pay to stay," are facilities where you pay the facility a fee for staying there. There are a number of facilities in the county and you must be approved by the facility and allowed by the court to attend such a facility. Often times you are allowed to leave the private jail during the day to work so it can be a huge benefit.

Riverside County Programs

Riverside is unique because they almost always give you jail time but then allow you do an alternative to custody. The difference programs in Riverside are as follows:

Sheriff work release: This is similar to the Cal-trans, CWP or Public works option discussed above. You sign up for a specific location and specific day and work whatever task they need done that day.

Electronic confinement: There are two options for electronic confinement in Riverside county. If you reside in the county you will apply through the sheriff's department but if you are out of county you apply to the LCA, which is a private monitoring company. Both require you to wear an ankle bracelet at all times and abbey the conditions on movement and location. It is very similar to CPAC and SEC.

Understanding all the options available can be the difference between a defendant spending time behind bars or keeping their job, apartment and livelihood. Your attorney should be aware of these options and discuss them with your attorney as you form a strategy. While it's natural to want someone criminally punished, remember that in many cases your chances of being made whole from your injuries increase substantially when the defendant is not in prison. In many cases, your priority should be recovery, not retribution.

© The Law Firm of Richard Duquette, 2016, All Rights Reserved.

October 31, 2016

Co-authored by Richard Duquette, Michael Norton, and Justin Nelson


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