Alternative Sentencing: “Avoiding Jail”

Articles by Carina Castañeda 14 November 2009

  • Electronic Monitoring System (EMS)
  • Work Release or Work Furlough
  • City Jail or Private Jail
  • Diversion Programs (Alcohol or Drug Rehabilitation)
  • Sober Living
  • Community Service

Instead of going to jail, the above options may be used but with the agreement of the judge, the prosecutor or both. Keep in mind, even with all these options, extensive plea bargaining is required by your defense attorney.

95% of all cases end in a plea bargain. This is an excellent way to avoid a potential stiff conviction. But it is up to the defense attorney to speak on behalf of her client. The attorney must enlighten the judge/prosecutor of “who” her client is—she must establish good character and that such “bad” behavior is out of the ordinary. It is advisable to prepare a “mitigation packet”—usually containing character letters and background information of education, work history and community involvement.

The defense attorney must show that her client’s responsibility for the crime is minimal and damages to the victim(s) and society is small or may be repaired. A savvy attorney will also want to share some of her defense strategy i.e. establish for the prosecution weaknesses of their case such as witness credibility, constitutional violations etc. Having been a prosecutor myself, I listened to the defense attorneys who provided a comprehensible and rational argument as to why their client is a viable candidate for alternative sentencing and not prison.

Finding the right alternative sentencing strategy that the judge and prosecutor will accept is the job of a knowledgeable and skilled defense attorney. Some alternatives include community based programs, such as community service, work release, in-house drug rehabilitation and graffiti clean-up. The attorney may need to contact the individual programs to ascertain both availability and acceptability of her client.

ELECTRONIC MONITORING: Also know as “house arrest.” This involves wearing an ankle bracelet that electronically monitors the whereabouts of the wearer. It allows the individual to go to work and other appointments but must be home at an appointed time.

WORK RELEASE/WORK FURLOUGH: This involves working with a Probation Department. Work release entails Probation selecting a work site—you work during the day and go home at night. Work furlough allows you to keep your job and go to work and at night report to a dormitory-style facility.

PRIVATE JAIL: A nicer facility—but it costs money.

DIVERSION PROGRAMS: Sometimes a DUI or a drug related arrests is merely the symptom of an underlying addiction issues. Rehabilitation is sometimes a better option especially if there are prior convictions involving narcotics or alcohol. But again, if there are prior convictions, both the prosecutor and judge may want to punish your client. It is the job an effective criminal attorney to advise the court that a drug facility is a better option than prison or jail.

SOBER LIVING: These are homes, both for men and women and all residents must maintain sobriety to stay. The structure of each house is different but all requires them to attend a 12-Step meeting daily, participate in house groups and perform chores. For those multiple drug/alcohol offenders that have not responded to prior treatments, this type of environment may prove to be the strict guidance needed.

COMMUNITY SERVICE: This is generally for crimes of lesser degree. I have had clients that are younger, usually early twenties with no criminal history. I have proposed a community service type sentencing such as working with underprivileged youths or the elderly. All involved usually conclude this is a superior alternative to jail.

A defense attorney’s ability to present the mitigating factors in her client’s case will ultimately prevent her client from being sentenced to prison or jail. It is crucial that an attorney presents her client as a “human being” that made a mistake. I have been very successful in getting my clients out of prison or jail, but it requires a great deal of diplomacy and tact. I use factors such as a good public record, professional or personal responsibilities in convincing the prosecutor and judge that a sentence that does not include custody is an equitable and fair resolution.


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