Five Sentencing Alternatives That Can Keep You Out of Jail – Even If You’re Guilty

If you’re facing criminal charges, you may be thinking to yourself, “if I get convicted, do I have to go to jail?”

Not necessarily.

Incarceration is a potential punishment for all felony and misdemeanor crimes.ⁱ However, incarceration is not always imposed. In other words, just because a person pleads guilty or is found guilty doesn’t guarantee that he will go to jail.

Below are five alternative sentences to jail. If you have recently received a conviction or think that you might receive one, you may be able to avail yourself of one of these sentencing alternatives.

1. Probation – No jail time; periodically check in with the Court

Probation is a sentencing alternative that allows a person to complete his sentence without having to go to jail. The person can remain at liberty, but will be subject to supervision from the Court (for misdemeanors) or from a probation officer (for felonies).

Probation typically lasts between three to five years. During that time, the person is expected to complete certain conditions, such as paying off his fines and fees, making a restitution payment, complete counseling, and volunteer a certain amount of community service hours.ⁱⁱ

Although people do, in fact, receive probation upon being convicted, receiving a sentence of probation is not guaranteed. Much will depend on your past criminal history (if any), the crime you were convicted of, the severity of your misconduct, and your ties to the community, among other factors.

It is true that first-time offenders are more likely to receive probation than recidivists. This is because probation is more likely to be granted when a person is perceived as posing a low risk of endangering the community.

2. Supervised, Electronic Home Confinement – Do your jail time at home

For some crimes, jail time is mandatory once you are convicted. For instance, if you plead guilty to brandishing a firearm, a misdemeanor, you’ll be required to spend 30 days in jail.ⁱⁱⁱ Or, if you’re convicted of DUI for a third time, you must spend at least four months in jail, even if you’re granted probation.^iv

But even among these crimes, alternatives to jail are available.

In Orange County, the Probation Department’s Supervised, Electronic Home Confinement Program allows you to serve your jail sentence at home.^v You’ll have to wear a GPS ankle bracelet (to ensure that you don’t leave your home) and you’ll be subject to random home visits/drug tests by your probation officer.^vi Additionally, police can be given access to the data from your GPS ankle monitor so that they, too, can be aware of your whereabouts.^vii

But the upside is that you’ll be able to leave your home in order to go to work or school or to visit your doctor or dentist as needed. You will also be permitted to leave your residence if you elect to receive vocational training or need to attend your court-ordered counseling sessions/programs.^viii

Should you fail to adhere to the terms of this program, then your probation officer is authorized to remove you from your residence and place you into custody for the remainder of your jail sentence.^ix

Before accepting you into the program, the Probation Department will assess a host of factors including, but not limited to, your prior criminal history, your ties to the community, your employment history, your past drug and alcohol use, and your potential to endanger the community.^x And although the Court can recommend that you be accepted into the program, it is the Probation Department that will have the final say.^xi

The Supervised, Electronic Home Confinement Program is available to those who suffered either a felony or misdemeanor conviction. However, certain felonies — specifically, sex crimes and egregious felonies known as “strikes,” such as residential burglary, arson, or kidnapping — are immediately disqualifying.^xii There is also a fee to participate in the program, and the fee is commensurate to your income-level at time of sentencing.^xiii

3. Electronic Monitoring Program – Home at jail, but only when you’re sentenced to jail without probation, and only on a misdemeanor crime

This program is similar to the Supervised, Electronic Home Confinement program discussed above: rather than go to jail, you will be able to attend school and work, as well as medical and dental appointments.^xiv In exchange, you’ll have to remain in your residence at all other times, wear a GPS ankle monitor, and regularly remain in contact with a deputy or other designated person from the Sheriff’s Department.^xv

However, this program is available only to those who were convicted of a misdemeanor offense and who were sentenced directly to jail.^xvi This means that persons convicted of felony crimes are ineligible for this program. So, too, are those who were convicted of a misdemeanor and received probation, even if a condition of that probation was some jail time.

Sometimes, a person may ask for the Electronic Monitoring Program (meaning serving out a straight jail sentence at home with no probation) as part of a plea deal. Why would someone ever prefer a jail sentence over probation? For one thing, probation can last longer. People are typically placed on probation for a period of three to five years. During that time, they may have to honor certain obligations — such as checking in with the Court or a probation officer, staying away from specific people or places — in order to stay out of jail. Also, persons on probation must confirm their probationary status to police when asked and must also comply with any officer’s request to search their person or effects, even if law enforcement has no probable cause to do so.

Rather than deal with all of that for up to five years, a person may prefer to accept a straight jail sentence instead. Jail sentences, especially for misdemeanors, are relatively short. They can range anywhere from six months to one year.^xvii And even then, six months and one year are the maximum jail sentences for misdemeanors crimes. These maximums are imposed usually when a person has an extensive criminal history or when his conduct in the instant crime is particularly egregious.

If a first-time misdemeanor offender receives any jail time, it will typically be for some amount of time less than the six-month or one-year maximums. (This, of course, is excluding crimes that have mandatory jail sentences.) Say a person were sentenced to 30 days in jail. That time can be reduced for any time he spent in jail when he was first arrested. So, a 30-day sentence can actually be 28 days if the person spent two nights in jail before he was released at his arraignment. (It can even be shorter than that once so-called good-time/work-time credits are taken into account.^xviii)

A person who isn’t burdened with responsibilities may prefer to just do his four weeks in jail and move forward with his life. Another person may be able to coordinate his saved vacation and sick time to tide over his month-long jail stay while still keeping his job.

But striving for a relatively short jail sentence in order to avoid several years on probation may be a gamble. This is because even though the Court can find you eligible for the program, it is only the Sheriff’s Department that can ultimately accept you into the program.^xix

The purpose of the Orange County Sheriff’s Electronic Monitoring Program is to make room in the jails. Due to budget cuts and overcrowding, correctional facilities may not always be able to handle the amount of inmates they receive. To alleviate this pressure, the Sheriff’s Department has the option of releasing low-risk inmates – such as those incarcerated for a misdemeanor offense – back into the community, with an electronic GPS monitor and supervision from the Department.^xx

When determining your eligibility for the program, the Sheriff’s Department will examine your criminal history, review your behavior while in custody, and interview you. These are just some of the tools that the Sheriff’s Department can use to vet you. The Department will also want to see that, if you are released onto the GPS monitor, you’ll have an actual place to stay and that anyone else you’ll be living with will be on board with the program’s stringent requirements (including that your living quarters may be searched upon a deputy’s request).^xxi Additionally, be aware that the Department considers sex-related and violence-related crimes to be disqualifying.^xxii

Finally, if you are accepted into the program, it will be at no cost to you. This program is free.^xxiii

4. Community Work Program – Instead of sitting behind bars, you can work off your jail time

If jail time can’t be avoided as part of your sentence, then the Orange County Sheriff’s Community Work Program is another available sentencing alternative. Also known as a work release program, this option allows a person to perform specific kinds of work instead of going to jail.^xxiv

In this program, “work” can include manual labor (such as picking up trash, removing weeds or graffiti, or performing house repair and yard services for the elderly), providing administrative support to approved non-profit organizations, and even participating in self-improvement programs (like those focused on education, parenting, life skills, a specific vocation, or preventing substance abuse).^xxv

Each eight to ten hours spent performing approved work reduces your jail sentence by one day.^xxvi With such a wide variety of ways to work off one’s jail time, the Sheriff’s Community Work Program is a popular sentencing alternative for people who have received convictions. There’s also the fact that participating in the program allows you to sleep in your own bed at night instead of bunking behind bars.

But the program benefits the Sheriff’s Department, too. Releasing inmates from jail and into the Community Work Program allows the Department to free up bed space due to overcrowding as well as avoid the housing and medical costs of the work-released inmates.^xxvii

To be eligible for the program, you must have 150 days or less remaining in your jail sentence, be a permanent Orange County resident, be cleared for manual labor (if that’s the work that you wish to perform), and have reliable transportation.^xxviii Additionally, the Department will review your compliance with any orders from the Court as well as your track record for following the rules within the jail. You are ineligible for the program if you are convicted of a violent or sex-related offense.^xxix But even if you can satisfy all of these criteria, there is no guarantee that you will be admitted into the program. This is because your acceptance into the Community Work Program is solely within the discretion of the Sheriff’s Department.^xxx

Normally, only those who are already in custody can avail themselves of the Community Work Program.^xxxi However, you can try to apply for the program before your jail sentence begins. To do so, you’ll have to be processed into the Department’s jail system (a procedure known as “pre-booking”) prior to your surrender date. If you are successfully pre-booked and accepted into the program, you will be able to complete your jail sentence without doing any actual time in custody.

Participation in the Sheriff’s Work Program requires $90 administrative fee as well as a separate booking fee.^xxxii

5. DUI Court – Get help getting sober and maximize your chances of doing your jail time at home or working it off instead

Jail time for second- and third-time DUI is mandatory: 4 days’ jail for a second-time DUI^xxxiii and four months’ jail for a third-time DUI^xxxiv. And that’s if a person receives probation. The sentences are longer if probation is denied.^xxxv

In Orange County, the Court has a program known as DUI Court.^xxxvi This program is long, difficult, and, if you manage to complete it, your jail time will not be reduced, nor will your case be dismissed. Instead, what DUI Court does is make it more likely that you can work off your jail time or serve your sentence at home, via one of the other programs discussed above.

So why would anyone choose to participate in a program that doesn’t reduce or eliminate their jail time? Because it can help them get sober.

Let’s clear something up first. Before you can participate in either the work release program or in-home confinement with an electronic GPS monitor, you must be deemed suitable. It’s hard to make the case that a person who has suffered more than one DUI within the last 10 years can be trusted to comply with the rules of a given program, especially if the person’s underlying issue of alcohol or substance abuse has not been addressed. In other words, without DUI Court, it is much more likely that a repeat offender will have to actually do his mandatory jail time in jail.

That’s where DUI Court comes in. Its goal is to work with a person comprehensively — through counseling, classes, and personal accountability — in order to help that person achieve sobriety. If a person can complete DUI Court and achieve sobriety, it is much more likely that he will be permitted to serve out his jail time through a work release program or home confinement. (Also, he significantly increases his chances of expunging his conviction, a decision which is discretionary for the Court when it comes to DUI.^xxxvii)

DUI Court acknowledges that the root of multiple DUIs is a person’s abuse of alcohol and/or illicit substances. And until that underlying cause is addressed, no amount of fines or jail time – no matter how harsh – will change the person’s behavior. It is treatment and, ultimately, sobriety that will free a person of his addiction.

But this can be easier said than done. DUI Court can be intense. It requires participants to regularly participate in individual counseling sessions, group counseling sessions, and self-help meetings (such as Alcoholics Anonymous). Participants are required to keep in regular contact with their probation officers and are subject to random and regular alcohol and drug tests. And there are sanctions in place in the event that participants violate any of these conditions.^xxxviii In addition, participants must complete an 18-month, multiple-offender DUI program (known as SB-38),^xxxix and they are also burdened with arranging transport to each of these appointments even though, because of their DUIs, they are no longer allowed to drive themselves. For some, the ultimate benefit of DUI Court — a return to sobriety — makes all of the inconvenience and sacrifice worthwhile.

To be eligible for DUI Court, you must reside in Orange County; have no prior convictions involving drug sales, violence, or gang activity; and your current DUI must not involve serious injury to any victim.^xl You’ll also need reliable transportation, whether it be a taxi, a ride-hailing service like Uber or Lyft, or a friend or loved one to take you to all your appointments. You must also acknowledge that you have an alcohol and/or substance abuse problem and that you are ready for a change.^xli

But Don’t These Programs Just Let Criminals Out onto the Street?

Some may criticize alternative-sentencing programs as being soft on crime because such programs allow people avoid jail time and, in doing so, escape accountability. But the reality is that these programs are necessary.

Overcrowding in California’s prisons and jails is real, and authorities need some way to triage the influx of people who enter the criminal justice system every day. And sentencing alternatives do ensure accountability: program participants who fail to comply with the parameters of their chosen program can be taken into custody and forced to serve out their jail sentences.

It should be noted that the programs discussed above were designed by either the Court, the Probation Department, or the Sheriff’s Department – the same institutions that interact with offenders on a daily basis.

Accountability and punishment are not the same. Accountability is the concept of holding someone responsible for his misconduct. Punishment, on the other hand, is the infliction of some penalty as vengeance for some wrong. Although accountability can include some degree of punishment, its aim is not to seek retribution, but to hold one to answer in a manner that is rational and dispassionate.

And that’s what alternative-sentencing programs strive to do. By accepting only participants who are unlikely to reoffend or endanger the community upon release, these programs try to balance the need for accountability with the limits of the state’s correctional facilities as well as authorities’ obligation to prioritize the public’s safety.

If those eligible for an alternative-sentencing program were instead forced to serve their jail sentences, it’s likely that they would lose their jobs, thereby losing their ability to support themselves and their families. Without a steady source of income, and with a prior conviction that makes it much harder to find work, people can become desperate and find themselves forced to commit crimes out of that desperation. Punishment, it seems, can have the unintended consequence of financially ruining a person’s life.

Conclusion

If you’re facing a criminal charge and believe that a conviction is likely, take heart: there are programs available that will allow you to carry out your sentence without having to stay behind bars. These alternative-sentencing programs will allow you to minimize the disruption caused by a conviction and, most importantly, allow you to continue going to work or school.

You should keep in mind, though, that alternative-sentencing programs shouldn’t be considered in isolation; instead, they should be woven into a comprehensive, criminal defense strategy. A criminal defense attorney can help you figure out whether an alternative-sentencing program can apply to your unique case.

Michael J. Ocampo, is a skilled attorney and former deputy district attorney. If you’ve been accused of a crime and want to know whether an alternative-sentencing program can fit into your unique defense strategy, contact Michael at (714) 451-6834 to schedule your free, no-obligation consultation.