Split sentencing: PCE holds round-table on critical component of AB-109

150 150 Christopher Nelson

(Photo Credit: Corey Leopold)

Last week, California Forward’s Partnership for Community Excellence gathered many heavy hitters from across the criminal justice spectrum for a roundtable on “split sentencing,” an option that was created through AB 109. 

High-level representatives from law enforcement, probation, all three corners of the courts, researchers, state agencies, and many others were given a chance to talk on the issue, which allows judges to split  inmate sentences to a period of jail time and a period of supervised release, from their perspectives.

The takeaway: everyone agreed at the 30,000 foot level that split sentencing is a tool that could be better understood and utilized. It costs more to house a person in jail than it does to supervise them in the community. What is possible in terms of rehabilitation and treatment under supervision, granted enough time, is far more powerful in preventing re-offense than jail time.

Of course, it’s in the nuance where things get complicated. Funding will always be an issue, whether it’s probation departments in large counties like Los Angeles not having enough to handle the increased case load that more split sentences would bring or the simple fact that split sentencing can only touch a finite number of people. Those outside the realm of AB 109 are stuck in the same old system.

Split sentencing arrived as a result of AB 109, legislation that explicitly states it was “not intended to alleviate state prison overcrowding” yet it has been the primary solution to overcrowding. It works like this: a judge has the option to give either “straight time,” which generally ends with no “tail” (meaning no post-release supervision) or to split the sentence into a period of jail time and a period of supervised release.

“When I was a judge I wish that I had the ability to utilize split sentences. It offers the court more flexibility. In the criminal justice system, one thing that I have learned is that nothing is black and white. Each case is unique and split sentencing allows tailoring of sentences to the individual and the crime,” said Paul Zellerbach, former judge and current District Attorney for Riverside County.

The key thing to understand here is that as part of AB 109, funding is allocated for offenders who are non-serious, non-violent, non-sex. If the court is dealing with a case of drug addiction, for instance, treatment and drug testing under supervision in the community might better prevent re-offenses than putting someone behind bars. If it is an offender with criminal thinking who repeatedly winds up back in court for theft, a condition of probation would be cognitive behavior therapy designed to change thinking errors. 

“When probation is properly resourced, evidence-based community supervision can make a difference in outcomes,” said Mack Jenkins, Chief Probation Officer for San Diego County.

Although probation departments handle the supervised, non-jail portion of a split sentence, it’s important to understand that it’s not just another form of probation. Probation under other sentences can actually be refused by a defendant. The “mandatory supervision” component of a split sentence cannot.

The third item in this bucket is parole, which only happens after serving time in state prison and thus is state managed. This is why county probation is heavily involved as most of the action in Realignment is happening at the county level.

And while probation doesn’t count as a jail commitment, a split sentence does, meaning future offenses can carry an extra year of sentences beyond the typical three year maximum. In felony cases, it cannot be expunged from the record and it cannot be reduced to a misdemeanor.

Both Jenkins and Elyse Clawson, Executive Director of Community Resources noted that the data on split sentencing is limited at best, but what is available suggests very different uses from county to county.

“When we study the use of jail as part of split sentencing in Oregon and Maine, we saw tremendous disparity in the ways in which it is used. It really varies from county to county. When you drill down into the people, you see disparity by type of offenders as well. Ones that are similarly situated, have similarl crimes and even similar risk level, were treated very differently from county to county and that raised a lot of concerns.,” Clawson said.

With the exception of Riverside County, Jenkins noted that the larger counties have the lowest usage rate of split sentencing, with Los Angeles County clocking in at 5 percent. But as mentioned above, Lt. Wayne Bilowit of the LA County Sheriff’s Department noted that the county simply can’t afford a higher caseload for their probation department. The judges and the District Attorney’s office are aware of this.  

Perhaps most interesting was the perspective offered by the people who hand down the actual sentences themselves: the judges.

“I work very hard in our educational programs, I have made a number of presentations about split sentencing and I strongly support it. However, this is a mammoth change and therefore, it will take time. I am not that concerned about a low rate right now as long as it is moving upward. I personally think it should be used more,” said Judge Stephen Manley of the Santa Clara Superior Court.

Judge Brian Back of the Ventura County Superior Court echoed the sentiment: “There’s a culture and there’s trepidation and there’s concern by judges who are first trying to follow the letter of the law and second trying to absorb everything that is coming at us through realignment.”

But Judge Back is also in favor, saying that “In the past, we sent a guy to prison, and we washed our hands. Now we have the chance to do something that benefits the person, the community and the victim.”

He called it an opportunity to be a better judge. If fact, he considers it an opportunity for everyone involved.

“If we are not already sitting around the table getting comfortable with each other, realignment almost compels it. We have to get over ourselves individually,” said Judge Back.

We couldn’t agree more.


Christopher Nelson

All stories by: Christopher Nelson