Criminal defense attorneys explain early release from jail due to overcrowding, also known as "fed kick."
Essentially, a “fed kick” is the process of releasing a jail or prison inmate earlier than his or her scheduled release due to overcrowding of the jail or prison.
Brief History of “Fed Kick” Law
In 2011, California “realigned” its jail and prison system by way of a piece of legislation known as “Realignment” (Assembly Bill 109 AB). The new law allowed for longer periods of incarceration to be served in local county jails, as opposed to state prisons.
The main purpose of AB 109 law was to reduce the inmate population of California’s overcrowded prisons after the federal government announced in 2009 that California’s overcrowded inmate population violated the U.S. Constitutions’ prohibition against cruel and unusual punishment (U.S. 8th Amendment).
In other words, AB 109, or “Realignment," was California's response to the federal government’s threat to ‘federally release’ California’s prison inmates in sufficient numbers so as to reduce California's inmate population levels.
AB 109 Results: AB 109 allowed for longer incarceration periods to be served in California’s local county jails. Prior to AB 109 law, local county jails were used only to hold inmates who were either awaiting criminal trial, or who were sentenced to a less than a year of incarceration.
Alternatively, prior to AB 109 law, California state prisons were exclusively used to incarcerate inmates who were sentenced to one year or more, regardless of the crime for which he or she was incarcerated. For more information, see Jail v. Prison, What's the Difference?
This scenario allowed California to reduce the population of its prisons without having to release inmates from incarceration (i.e., some prison inmates would simply be transferred to a local county jail, as opposed to remaining in state prison, but the overall population of incarcerated persons would not significantly reduce).
Note: The federal government did not speak to overcrowding of California’s county jails, the federal government only addressed California’s overcrowded prisons; therefore, California simply changed the law to allow longer county jail sentences for certain crimes that were previously served exclusively in state prison.
The Problem: After Realignment, it wasn’t long before California’s local jails became overcrowded with all the jail inmates who would have served his or her incarceration in a state prison had AB 109 never been enacted.
The result is that California’s local county jails started to release inmates earlier than the inmate’s scheduled release date to keep the local county jails from becoming overcrowded in violation of federal law (8th Amendment). This led to the term “Fed Kick,” or early release from county jail to avoid mandatory federal release by the U.S. government due to overcrowded jails.
Example: Prior to 2011, a defendant was sentenced to state prison for a felony conviction of vehicle theft. Today, a sentence for a felony conviction of vehicle theft is served in a local county jail, even if that sentence is longer than a year. This type of sentencing helps to reduce the population of California’s state prisons, but it also increases the population of California’s local county jails.
Other felony crimes, and their related incarceration structure which were impacted by AB 109, include, Welfare Fraud (WI 10980(c)), Statutory Rape (PC 261.5(c)), Resisting an Executive Officer (PC 69), Commercial Burglary (PC 459), Vandalism (PC 594), Receiving Stolen Property (PC 496(a)), Perjury (PC 118), Animal Cruelty (PC 597), DUI (VC 23152), Extortion (PC 520), & more.
Do I Qualify for Fed Kick?
Technically, any county jail or prison inmate may qualify for a fed kick, so long as the inmate is sentenced (i.e., not awaiting trial). However, in practice, county jail inmates who are incarcerated for felony violations are less likely to be released via fed kick than inmates who are incarcerated for misdemeanor crimes.
Also, county jail inmates who are serving a sentence for a gang related crime or a sex crime, are less likely to be fed kicked than other inmates who are serving a sentence for non-gang related crimes or sex crimes.
Finally, county jail inmates with extensive criminal history, or county jail inmates who have recently begun incarceration, are less likely to get a fed kick than county jail inmates who are not serving a sentence under those circumstances. But keep in mind that fed kicks only occur where the county jail is overcrowded and not all county jails are overcrowded.
Example: A county jail inmate who is serving a felony sentence for statutory rape (PC 261.5(d)), is less likely to get a fed kick than a county jail who is serving a misdemeanor sentence for DUI (VC 23152).
Example II: If two county jail inmates are serving the exact same jail sentence for drunk in public (PC 647(f)), and one inmate has served twenty percent (20%) of his sentence, and the other inmate has served seventy percent (70%) of his sentence, then a fed kick, if its available at all, will more likely be granted to the inmate who has finished a greater percentage of his jail sentence.
Important: A fed kick is never guaranteed because the county jail where the inmate is serving his or her jail time might not be overcrowded. No inmate has a right to a fed kick.
Example: Jack and Jill are both serving ninety (90) day county jail sentences for prostitution (PC 647(b)). Jack and Jill have the same criminal history and they were both sentenced on the same day. However, Jack is sentenced in Riverside County, where fed kicks are common because of overcrowded jails, and Jill is sentenced in San Bernardino County, where jails are not overcrowded. Result: Jack is more likely to get a fed kick than Jill.
Work Release V. Fed Kick
Sometimes, an overcrowded county jail will offer the inmate a “work release” option, as opposed to remaining in county jail. This is not a fed kick. This is simply a conversion of the inmates in-custody status, to a non-custody work release program. This procedure, which is popular in Riverside County, helps reduce the county jail population without having to release the inmate from further punishment.
Example: David is serving one hundred twenty (120) days for Vehicle Theft (PC 487(d))). On day ten (10) of his incarceration, deputies from the jail approach David and ask him if he would like to serve the balance of his jail sentence on work release. If David agrees, then David still owes one hundred ten (110) days on work release.
Note: When a defendant is fed kicked, he or she does not have to serve the balance of his or her incarceration. For example, if David, from the example above, is fed kicked after ten (10) days, as opposed to converting his jail sentence to a work release sentence, then David’s entire jail sentence is deemed served.
State Prison Fed Kick: Technically, any state prison inmate is eligible for fed kick, but the reality is that CA state prisons are not overcrowded because of AB 109 law, and other sentencing reduction laws, such as split prison sentencing and suspended prison sentencing (PC 1170(h)), reduced sentencing for non-violent offenses (Prop 57), and more.
In any event, when fed kick applies to state prison inmates, the same priority analysis is applied (i.e., “short term” sentence inmates release before “long term” sentence inmates, etc.).
Sex Crimes Fed Kicks: A defendant sentenced to serve a county jail sentence after a conviction for any PC 290 sex crime (i.e., a mandatory sex offender registration offense), is very unlikely to be granted a fed kick because PC 290 sex crimes are the last offenses to be considered for fed kicks in county jail.
These PC 290 offenses include misdemeanor versions of annoy or molest a minor (PC 647.6(a)), indecent exposure (PC 314), possession of child porn (PC 311.11), sexual battery (PC 243.4(e)(1)), and lewd act on a child 14/15 years of age (PC 288(c)).
Serious and Violent felonies: Serious and violent felonies, as those crimes are defined under PC 1192.7(c) and PC 667.5(c), respectively, are theoretically eligible for fed kicks, but in practice, this will rarely occur. This is because serious and violent crimes are not subject to county jail sentences, and the current state of California prisons is that they are not overcrowded because of AB 109, Prop 57, and other early release on parole options.
With that said, if a fed kick is going to apply to a serious or violent felony, the priority of those fed kicks would first go to non-life prison sentences. This means that almost no matter how overcrowded a California state prison might get, an inmate will never get a fed kick for such crimes as murder (PC 187), torture (PC 206), willful child cruelty (PC 273a(b)), lewd act on a child under ten (10) (PC 288.7), and other similar violent crimes.
Pretrial Release V. Fed Kick
Sometimes, a criminal defendant will be released from jail without the need for bail. This may be due to overcrowding, but this is not the same as a fed kick (early release from jail after sentencing due to overcrowding).
A pretrial release without bail happens for various reasons, including insufficient time to file criminal charges after arrest (PC 825), Own Recognizance Release (OR), and overcrowding of the jail. However, these reasons for release before trial are not the same as a fed kick. A fed kick occurs, if at all, after the defendant is sentenced to county jail or state prison.
Note: When a defendant is released before trial or before settlement of the criminal case, the defendant may be returned to jail at the time of sentencing. On the other hand, if a defendant is fed kicked after he or she is sentenced after his or her criminal conviction, then his or her incarceration is deemed served.
My Chances for “Fed Kick?”
One of the most common questions asked by criminal defendants just prior to sentencing is “what are my chances for getting a fed kick if I go to jail instead of signing up for work release?” The answer is that the chances of getting a fed kick from county jail depends on the county where the conviction is entered, the crime for which the defendant is convicted, and the length of sentence the defendant is ordered to serve.
Important: There is never a guarantee that an inmate will receive a fed kick (early release due to overcrowding). No inmate is entitled to a fed kick outside of federal mandates related to overcrowding. Many inmates who believe they will be fed kicked end up serving all of their ordered incarceration.
Also, an inmate with a warrant from another county (or state) may be fed kicked from one sentence only to remain detained because of the warrant hold on the other case. The same is true for fed kicks related to ICE holds.
For more information on any of the topics discussed in the article (i.e., AB 109, “Realignment,” fed kick law, early release from jail for overcrowding, etc.), or to talk to a criminal defense attorney, contact our highly experienced and award-winning criminal defense attorneys today.
Our criminal defense attorneys represent defendants charged with any misdemeanor of felony crimes in San Bernardino and Riverside Counties, including charges of manslaughter, domestic battery, lewd act on a child, DUI, elder abuse, drug crimes, sex crimes, theft crimes, weapons violations, offenses against children or elders, vehicle offense, battery and more.
Our criminal defense team proudly serves all criminal courts and jails in the Inland Empire, including Rancho Cucamonga, Fontana, Victorville, Redlands, Riverside, Morongo Valley, and more. Call today!
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