Brett Kelman | The Desert Sun Updated 2:24 p.m. PDT Oct. 5, 2016PALM SPRINGS, Calif. — Abraham Zamudio was going to jail.
Zamudio, 34, had been pulled over for having an illegal, blue-tinted light on his license plate. He allowed two cops to search his car, and they found five pounds of meth hidden in the trunk, then another 15 pounds hidden at his house in Riverside.
And so, faced with a pile of drugs and a mountain evidence, Zamudio confessed to drug trafficking. A judge sentenced him to 3 years behind bars.
One day later, on June 28, Zamudio walked out of the Riverside jail a free man. The jail was too full, so he got to go home. Forty-two other inmates were also let go early that same day – including five more drug dealers, four car thieves, three burglars, three fraudsters, a domestic abuser who a violated his probation and a bookkeeper who had embezzled more than $65,000 from a construction company.
These men and women are just a few of nearly 35,000 Riverside County jail inmates who have been released early over the past five years so their cells can be used for more serious offenders. About three-fourths of the released inmates had already been sentenced and skipped out of some portion of their jail time. The rest were awaiting trial, and could be locked up again if convicted, only to be released early a second time. Officials say these early releases, known throughout the county as “fed kicks,” are unavoidable, but have still undermined the court system and effectively given low-level offenders a get-out-of-jail-free card.
“This has been completely erosive to the integrity of the sentencing system,” said Becky Dugan, assistant presiding judge of the Riverside County Superior Court, who has spent 29 years on the bench and supervises all criminal cases.
“If you tell a defendant, ‘If you plead guilty or are found guilty then you get X amount of time,’ and that’s not true, then it makes the system – all of us – a liar.”
Most fed kicks are the byproduct of AB 109, a 2011 state law designed to reduce prison overcrowding by cramming more people into county jails that were already near capacity. Early releases happen in many counties, but Riverside sees more than most because of a severe shortage of jail beds. Fed kicks are now so ubiquitous that defendants boldly ask for them in open court. Addicts choose jail over rehab because they will be let go early. Drug smugglers don’t have to stop smuggling for long. Inmates leave the jail days, weeks, months and even years ahead of schedule, having technically repaid their debt to society, albeit at a significant discount.
Fed kicks get their name from a federal court case that prohibits Riverside jails from having more inmates than beds. Most fed kicks involve low-level felony offenders, like thieves and drug traffickers, but sometimes include more serious criminals, including cat burglars, repeat drunk drivers, wife beaters and an occasional robbery suspect. Law enforcement leaders say the churning cycle of arrest, release and re-arrest has emboldened career criminals, who no longer fear being sent to jail.
Despite concerns about erasing jail time, the rise of fed kicks has not dramatically impacted overall crime. In the years of peaking fed kicks, reports of violent crimes decreased and property crimes remained relatively steady. The exceptions were the crimes with the strongest ties to fed kicks — car thefts and felony drug arrests increased by as much as 16 and 30 percent.
Officials say the best explanation for the rise in these crimes are offenders like Joe Garcia, 25, a prolific car thief who has been using shaved keys to swipe cars in Riverside since 2013.
Riverside police say Garcia steals cars not to sell them or scrap them but just because he “doesn’t like to walk.” Whenever he is caught, Garcia pleads guilty quickly and then waits for the jail to let him go to make space for someone else.
So far, the strategy is working. Garcia has been fed kicked four times in only three years, skipping at least 35 months in jail.
Prosecutors are exasperated by cases like this, but say their hands are tied. The Riverside County District Attorney’s Office is on pace to prosecute more car thieves this year than in any other since 2010. New cases just keep coming.
“Car theft has gone through the roof because we’ve made it free,” said DA Mike Hestrin. “In Riverside County right now, there is virtually no punishment for car theft.”
A counter argument comes from the Riverside County Public Defender’s Office, which defended Garcia in the cases where he was fed kicked. Public Defender Steve Harmon admitted the criminal justice system has “lost some control” over jail sentences, but insisted law enforcement were “villainizing” defendants for fed kicks instead of tackling the larger, complex problems that lead to a crowded jail in the first place.
For example, many of the inmates who get fed kicked are stealing to support a drug addiction. Others are only behind bars because they are too poor to pay bail.
“Don’t complain about fed kicks until you look at bail reform,” Harmon said. “Don’t complain about fed kicks until you’ve done everything possible to handle addiction, mental illness and homelessness.”
In Riverside County, a crisis of ‘fed kicks’
Since 2011, Riverside County jails have released nearly 35,000 inmates early due to crowding. These releases are known widely as “fed kicks.”
Despite this disagreement, the DA and the public defender do agree that fed kicks have made it more difficult to pressure convicts into drug rehabilitation programs, which are considered the most effective weapon against recidivism.
Before fed kicks became the norm, attorneys would negotiate plea deals that offered low-level defendants a choice: Spend a few years in prison, or go into an intensive, year-long rehab program. Most would choose rehab.
But now, officials say, these same defendants know they are being offered a false choice. Many are taking the jail sentence – known as “straight time” – because they will be fed kicked before rehab would have been over anyway.
Fed kicks have also eased the sentences of drug traffickers in a region that is already one of the largest smuggling pipelines in the United States. During a prior investigation by The Desert Sun, officials said the Sinaloa Cartel moves tons of meth and heroin from superlabs in Mexico through Riverside County enroute to seller’s markets in New York, Chicago, Los Angeles and Canada. Federal law enforcement leads the effort to disrupt smuggling, but many of the actual smugglers are prosecuted in local court, which means they are likely to be fed kicked if convicted.
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Zamudio, the trafficker with 20 pounds of meth who was fed kicked one day after he was sentenced, served about four months in jail before his conviction. But even his own attorney, Daniel Greenberg, said it was “hard to believe” he was released so fast.
Greenberg insisted Zamudio was not to blame. He was just lucky.
“He upheld his end of the bargain,” Greenberg said. “He was prepared to pay his debt to society. He expected to be there for the length of that sentence. The fact that the government decided to release him early is obviously not his fault.”
To those in jail, fed kicks have become widely expected. Amber Lynn Tromby, a convicted fraudster who was held in the Banning jail, said it was routine for a few of her fellow inmates to vanish each week, long before their scheduled release dates, mostly on Wednesdays and Fridays. Inmates took to calling it “Fed Kick Friday” as if they got to wear jeans and sneakers to the office.
When Tromby’s turn finally came — 18 months into a four year sentence — she was only surprised that it had taken this long.
“Everybody I had gotten busted with had already been fed kicked,” Tromby said. “Getting picked felt like it was all luck of the draw, just like at the casino.”
Tromby had just finished a long day in the laundry room when a deputy called her from her cell. She was escorted to a bus that held dozens of other inmates, which drove to the Murrieta jail to pick up even more. The bus then headed to the Riverside jail so everyone could be processed for release.
By dawn, Tromby was free. Her turn had come.
“I don’t wish jail upon my worst enemy,” she said. “Everybody wishes for a fed kick to get out early.”
The rise of fed kicks can be directly attributed to AB 109, a wide-reaching California law that reduced crowding in California’s prison system by shifting more inmates into local jails. In addition to pre-trial suspects, jails became responsible for incarcerating inmates with non-serious, non-violent, non-sexual convictions. AB 109 took effect on Oct. 1, 2011. Riverside jails were full within three months, according to a report from the sheriff’s department.
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AB 109 also shifted tens of thousands of convicts from state run parole to county probation, and allocated billions to help counties cope with their increased work load of prisoners and probationers. Counties were encouraged to spend at least some of that money on rehabilitation programs, but local officials say it is now difficult to push inmates into those exact kinds programs because so many are opting for “straight time” in jail.
“The scheme would work OK, if we had enough jail space,” said Hestrin, a critic of AB 109. “But instead, what’s happened is the whole system has collapsed. And that has been devastating to the county.”
AB 109’s impact was magnified in Riverside County because the region already had one of California’s most dire jail capacity shortages – second only to Los Angeles County. Riverside has about 3,900 jail beds for 2.3 million people.
Capacity will grow next year when the new Indio jail adds nearly 1,300 more beds, but the sheriff’s department says it would need thousands more to erase fed kicks completely.
Because of this deficit, the impact of AB 109 was abrupt. According to the sheriff’s records, fed kicks rose from zero in 2011 to almost 7,000 in 2012, then peaked at 10,900 in 2014. In 2015, newly enacted Prop 47 downgraded some low-level felonies to misdemeanors, which meant fewer people were sent to Riverside jails, so fed kicks dropped to 3,200.
They have rebounded this year. As of Oct. 3, Riverside County had already released more than 4,400 inmates due to jail crowding.
Assistant Sheriff Jerry Gutierrez, who leads corrections in Riverside, said each inmate who receives a fed kick is chosen through a review process that considers their current case, any past convictions and behavior behind bars. The decision of who to kick is made daily, based on how many beds are needed.
Sometimes, there is no good choice, Gutierrez said.
“It’s a tough job to select the best of the worst, but we have to do it to comply with the court order,” Gutierrez said.
The origin of fed kicks traces back to the early 80s, when when Riverside County had only a third of the residents it has now, and yet the jails were already crowded.
In 1981, 31 inmates at the Indio jail filed a lawsuit against then-sheriff Ben Clark, claiming the facility was so packed that prisoners were sleeping on mattresses in the day room and showers. The lawsuit established a new standard for jail capacity: Every inmate must get a bed or be let go.
A decade later, this standard was reaffirmed in federal court – which put the “fed” in fed kick. In that case, Castro v. Riverside County, then-sheriff Cois Byrd agreed to a permanent injunction that said he would not make any inmates sleep on the floor, and would release inmates whenever the jail beds were full.
The injunction is still in effect today. Since it comes from a federal court, it trumps the sentences of any local judge, regardless of circumstance.
“There is no case now that is immune to the fed kick,” said Dugan, the assistant presiding judge. “I have not heard of a murderer that has been fed kicked, but there are very very serious crimes with very very serious injures on victims where – yes – this is happening.”