Governor Brown Presses for Split Sentencing (AB 109)
Reductions in California’s prison population have caused overcrowding in county jails across the state. To help relieve some of the burden on local jails, the California Legislature authorized sentencing reform when it passed Assembly Bill 109 (AB 109), the California Criminal Justice Realignment Act of 2011.
As part of AB 109, judges are permitted to impose what is known as a “split sentence” when ordering a convicted defendant to serve time in jail. However, some counties have not embraced the idea of split sentencing, causing Governor Jerry Brown to push judges to make better use of this alternative type of sentence. Those who don’t use split sentencing will have to come up with a reason why not doing so best serves the interests of justice.
What is a Split Sentence?
Split sentencing applies to AB 109 offenders – those convicted of a felony and sentenced to serve time in county jail rather than a state prison.
Pursuant to Penal Code 1170(a)(5), when a sentence is split, part of the sentence is served in custody and part of the sentence is served outside of custody during a period of post-release mandatory supervision by the probation department.1
For example, an AB 109 offender sentenced to a three-year term might serve a year and a half in jail under a traditional sentence. Under a split sentence, that same defendant would serve about nine months in jail and be subject to the supervision of the probation department for an additional 2 years and 3 months.
For the part that is served in custody, a defendant typically receives “day-for-day” credit for good behavior (otherwise known as “half time”). However, any part of the sentence that is served out of custody must be served in full.2
A defendant will only receive actual time credit for any part of the sentence that is served out of custody. This serves as incentive for an inmate not to violate the conditions of mandatory supervision.
The judge maintains discretion as to how much time will be served in custody and how much time will be served out of custody. Penal Code section 1170(h)(5) does not require split sentences. A judge has the authority to require that the entire sentenced to be served in custody.3
Additionally, split sentencing is not available for certain crimes excluded from AB109’s list of crimes punishable by county jail under Penal Code section 1170(h). Generally, sentences involving serious and violent offenses (“strikes”) and felony sex crimes are not eligible to be served in jail and therefore do not qualify for split sentencing.
Is Split Sentencing an Effective Option?
Split sentencing has become an attractive option for negotiating plea bargains. While split sentencing has not quite caught on in Los Angeles County, it is gaining popularity as jails in Los Angeles become more crowded.4
For example, L.A. County only utilizes split sentencing for about 5% of offenders and ranks near the bottom of California counties currently applying it. On the other hand, about 67% of AB109 offenders receive a split sentence in Riverside County.5
In Los Angeles County, many prosecutors, defense attorneys and judges are not convinced that split sentencing is an effective tool. County probation department officials disagree, eyeing increased funding while maintaining that supervision is necessary for an inmate’s successful re-integration into a law-abiding lifestyle.6
This position, however, may be self-serving. Former inmates under community supervision overwhelmingly report that probation and parole officers do little, if anything, to help them obtain affordable housing, vocational retraining or employment after incarceration – things that become difficult if you have a felony on your record.
Realistically, many offenders simply don’t want to deal with the supervisory component of probation mandated by a split sentence, preferring instead to complete their entire sentence in custody and being released without further obligation. This is understandable, since some county jails, in particular L.A. County, often release offenders after serving a fraction (as low as 10% to 15 %) of their time in custody.
Why is the Governor Pushing for More Split Sentences?
According to the California Budget Project, Governor Brown’s 2014-2015 budget is dependent on a recently granted two-year extension of the deadline for meeting a court-ordered prison population cap. The state is under a federal mandate to reduce its current prison population, which exceeds 145% capacity (roughly 118,600 inmates), to 137.5% – which currently equals about 112,200 inmates.7
As a result of this extension into 2016, under the proposed budget, approximately $81 million in state funds is available in 2014-15 for a range of rehabilitative services, including re-entry programs for inmates within one year of release, intended to reduce the re-offense rate among convicted criminals.8
Gov. Brown desperately wants to avoid the early release of state prisoners. Accordingly, the governor is motivated to continue to divert eligible felons from state prison to county facilities and thus comply with the federal mandate. However, first he must create room in overcrowded county jail facilities.
The governor proposes to require the use of split sentences for “any county jail felony sentence … unless the court finds it to be in the interests of justice … to impose a straight sentence.” The governor has suggested that increased use of split sentences could help reduce recidivism and relieve jail overcrowding, thus serving a dual purpose.9
1. [Pen. Code § 1170(h)(5)]↩
2. [Uslegal.com: “What is a Split Sentence?”; http://definitions.uslegal.com/s/split-sentence/]↩
3. [Pen. Code § 1170(h)(5)]↩
4. [Los Angeles Times: “Split Sentencing: What’s not to like, L.A.?”; http://articles.latimes.com/2014/feb/09/opinion/la-ed-split-sentences-california-realignment-20140209]↩
5. [89.3 KPCC: “’Split sentencing’: Los Angeles County stays away from prison alternative that Riverside County and others embrace”; http://www.scpr.org/news/2013/07/26/38306/split-sentencing-la-stays-away-from-incarceration/]↩
6. [Id.]↩
7. [California Budget Project: Governor’s Budget Proposal Prioritizes Paying Down Debt and Saving for a Rainy Day, Takes Only a Modest Step Toward Reinvesting in California’s Future; http://www.cbp.org/pdfs/2014/140110_January_Budget_Release.pdf]↩
8. [Id.]↩
9. [Id.]↩
